[Cite as In re E.R. , 2023

- Ohio

- 1468.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ATHENS COUNTY

IN THE MATTER OF: :

:

E.R

. , : Case No. 2 2 CA 16

:

Adjudicated Dependent Child

. :

:

: DECISION AND JUDGMENT

: ENTRY

:

:

APPEARANCES :

Christopher Baz eley, Cincinnati , Ohio , for Appellant

.

Timothy L. Warren, Athens County Assistant Prosecuting Attorney , Athens

, Ohio, for A ppellee.

Smith

, P. J.

{¶1} Appellant

, J .B.

, appeal s the trial court’s decision that granted

permanent custody of his child

, E.R

. , to Athens County Children Services

( “ACCS” or “the agency”)

. Appellant raises two assignments of error and

argues that (1) the trial court’s judgment is against the manifest weight of the

evidence and (2) the trial court erred by failing to inform him of his right to

appeal . For the reasons that follow, we do not find any merit to Appellant’sAthens App. No. 2 2 CA 16 2

assignments of error

. Therefore, we overrule his assignments of error and

affirm the trial court’s judgment.

FACTS

{¶2} On June 18, 2020, the agency filed a complaint that alleged th e

child is abused, neglected, and dependent and requested temporary custody

of the child

. The complaint alleged that the child’s mother gave birth to the

child at home and that Appellant did not contact emergency services to take

the child to the hospital. Instead, Appellant contacted the maternal

grandmother, who then called emergency services.

{¶3} At the hospital

, t he mother tested positive for amphe t amines

,

methamphetamines, barbiturates, bupren orphine, and opiates.

{¶4} The agency also filed a motion for emergency custody of the

child

, which the trial court granted.

{¶5} On July 20, 20 20, the court adjudicated the child dependent upon

the parties’ stipulation that drugs were found in the child’s body at birth.

The court dismissed the abuse and neglect allegations. The court

subsequently placed the child in the agency’s temporary custody.

{¶6} Nearly two years later the agency filed a motion to modify the

disposition to permanent custody. At the permanent custody hearing

,

Athens County Sheriff’s Detective Jen Wil liams testified that she received aAthens App. No. 2 2 CA 16 3

copy of a forensic interview of H.B., who is one of the mother’s other

children

. In the interview

, H.B. reported to a Child Advocacy Center worker

that he had been sexually abused and identified Appellant as the perpetrator

.

Detective Williams stated that based upon her review of the interview she

started an investigation

. She explained that she first attempted to contact the

mother because the mother allegedly witnessed some of the abuse. Because

t he detective was unable to reach the mother, she contacted Appellant.

{¶7} Detective Williams testified that Appellant initially seemed

willing to talk to her and stated that he would n eed to arrange transportation.

Later, however, Detective Williams learned that Appellant’s attorney

advised him not to meet with her for an interview. The detective stated that

the case currently is closed due to a lack of information and that the file

notes that if law enforcement officers receive additional information the case

will be reopened.

{¶8} ACCS caseworker Maya Oshita testified as follows. T he agency

removed the child from the parents’ custody about one week after his birt h.

The agency placed the child with a foster family

, and the child has remained

in that home since his removal

. The child “does very well” in the foster

home and has bonded with the foster parents and the other children who liveAthens App. No. 2 2 CA 16 4

in the home. The foster family would like to adopt the child if the court

grants the agency permanent custody of the child.

{¶9} The age ncy developed a case plan for the family that required

the mother to maintain stable housing

, complete a substance abuse

assessment, submit to drug screens, and engage in any recommended

services or treatment programs. T he mother has not complied with the case

plan and has failed to maintain contact with the agency.

{¶10} The case plan required Appellant to maintain stable housing

and to obtain items needed to care for a young child

. Appellant currently

has a residence where he lives with his two teenage d children

. When Oshita

initially visited the residence one of the teenagers did not have a bed in his

bedroom but

, instead

, slept on a lawn chair. Additionally, one of the

bedrooms had “a strong smell of urine

. ” Upon Oshita’s next visit those

concerns no longer existed.

{¶11} When asked whether Appellant’s home would be appropriate

for a toddler, Oshita responded that the residence is “sparse.” She stated that

the home has “a couple minor safety concerns

, ” such as missing cabinet

locks and electrical outlet covers, that Appellant has been working on fixing

.

Oshita explained that Appellant also needed to obtain baby gates, arrange aAthens App. No. 2 2 CA 16 5

safe sleeping environment for the child, and obtain other items needed to

c ar e for a young child.

{¶12} Oshita indicated that the agency would like to add a

requirement to the case plan that Appellant obtain a mental health

assessment so as to allay its concerns of possible sexual abuse

. She

explained that ACCS had investigated H.B.’s allegation and labeled the

allegation “indicated,” meaning “that there was some evidence to support the

allegation.” Oshita stated that because Appellant had been identified as the

perpetrator in a sexual abuse investigation labeled “indicated,” th e agency

would not consider placing the child in his custody.

{¶13} When Oshita asked Appellant to complete a mental health

evaluation

, Appellant stated that he would not complete a mental health

assessment

, denied the sexual abuse allegation, and did not believe

completing a mental health assessment was necessary. Appellant informed

Oshita that he believed that “something may have happened with those

children,” but “it was likely their father’s friend, or roommate.” Oshita was

concerned that Appellan t “suspected someone might be abusing a child

sexually and had not reported that concern.”Athens App. No. 2 2 CA 16 6

{¶14} Appellant has been visiting the child twice per week for two

hours at a time. The agency has not moved the visits to be at home o r off

grounds due to the sexu al abuse allegation being “indicated.”

{¶15} Oshita did not recommend that the court place the child with

Appellant due to the indicated sexual abuse allegation. She stated that she

would be concerned for the child’s safety.

{¶16} Appellant testified that he lives with his two teenaged boys

wh ich h e obtained custody of in 2017

. He explained that the court granted

him custody of the boys after he completed a case plan that required him to

remain drug and alcohol free for one year.

{¶17} Appellant stated that h is residence is appropriate for a two

year

- old child. He related that it has baby gates and that he intends to place

a soft rug on the floor in one of the rooms so that the child has a place to

play. Appellant further pointed out that he has been able to keep custody of

his two teenaged boys by providing them with an appropriate environment.

{¶18} Deborah Murray, the child’s guardian ad litem (GAL)

, stated

that she favors placing the child in the agenc y ’s permanent custody. She

expressed multiple concerns with Appellant serving as the child’s caregiver.

First, Appellant knew about the mother’s drug use during pregnancy and

lack of prenatal care but he did not think to report it to anyone

.Athens App. No. 2 2 CA 16 7

Additionally, the agency had to prod Appellant to make the home

appropriate and he did not recognize what to fix on his own. Thus, the GAL

woul d be concerned that Appellant would not recognize how to maintain his

home so that it would remain an appropriate environment for a young child.

{¶19} The GAL agreed with the agency’s recommendation that

Appellant should obtain a mental health assessment. She stated that

Appellant had been angry at times during conversations with her and

admitted that he has “some anger problems.” 1

{¶20} The GAL also believes that Appellant lacks initiative

, which

concerns her. She explained that if the child were placed with Appellant, no

one would be around to tell Appellant what he needs to do to provide for the

child. The GAL questioned whether Appellant would be able to recognize

any issues and fix th em on his own.

{¶21} On October 6, 2022, the trial court granted the agency

permanent custody of the child. The court found that placing the child in the

agency’s permanent custody is in the child’s best interest and that the child

has been in the agency’s temporary custody for 12 or more months of a

consecutive 22

- month period

.

1 We observe that a portion of the transcript containing the GAL’s testimony is missing , so any additional

explanation that the GAL had regarding Appellant obtaining a mental health assessment is not available

.Athens App. No. 2 2 CA 16 8

{¶22} The court first evaluated the child’s interactions and

interrelationships:

The minor child was born at home and went almost

immedia tely into agency custody. The child has been in

agency custody since that initial determination. The minor

child appears to be functioning well within the foster

family. Mother has failed to exercise visitation with the

child during the Court case. Fat her has exercised visits

during this case and most of those visits have gone well.

However, Father had periods of time when visitation was

sporadic which included cancelled visits. More

importantly, child appears to do well in the foster home

and appears to be bonded with that family. All contact

between Father and child has occurred at the agency’s

visitation center and under agency supervision. [Father]

has two older half

- siblings in his custody. These children

are significantly older than the minor child in this case.

Behavior issues of those two older children could put the

minor child at unnecessary risk.

{¶23} Next, the court considered the child’s wishes. The court noted

that the child is too young to directly express his wishes and that the GAL

recommended that the court place the child in the agency’s permanent

custody.

{¶24} With respect to the child’s custodial history, the court found

that the child has been in the agency’s custody since June 17, 2020, shortly

after his birth

, and that t he child ha s been in the agency’s custody for more

than 12 months out of a 22

- month period.Athens App. No. 2 2 CA 16 9

{¶25} The court additionally reviewed the child’s need for a legally

secure p ermanent placement and whether the child could obtain that type of

placement without granting the agency permanent custody. The court

observed:

This two

- year old child needs and deserves permanency

which can only be accomplished with the termination of

parental rights and an award of permanent custody to

ACCS. Permanency is necessary for optimal development

of the child and can best meet his need s for stability and

consistency. While Father has made progress through his

Case Plan, the progress is only made after encouraged or

pushed by the agency or the Guardian ad Litem. That lack

of initiative creates a substantial risk of neglect or

dependenc y down the road if the child were returned to

Father.

{¶26} The court further found that R.C. 2151.414(E)(10) applied as to

the child’s mother because the mother “has abandoned the minor child and

has failed to engage with ACCS, utilize case plan services, or visit/contact

the child since September 2021.”

{¶27} Thus, the court granted the agency’s permanent custody motion

and placed the child in its permanent cust ody. This appeal followed.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT’S DECISION

TERMINATING [APPELLANT’S] PARENTAL

RIGHTS IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.Athens App. No. 2 2 CA 16 10

II. THE TRIAL COURT FAILED TO ADVISE

[APPELLANT] OF HIS APPELLATE RIGHTS

AT THE END OF THE HEARING.

ANALYSIS

{¶28} In his first assignment of error, Appellant argues that the trial

court ’s permanent custody decision is against the manifest weight of the

evidence

. Specifically, he asserts that competent, credible evidence does not

support the trial court’s finding that placing the child in the agency’s

permanent custody is in the child’s best interest

.

STANDARD OF REVIEW

{¶29} A reviewing court generally will not disturb a trial c ourt ’ s

perman ent custody decision unless the decision is against the manifest

weight of the evidence. Se e In re R.M. , 2013

- Ohio

- 3588, 997 N.E.2d 169, ¶

53 (4th Dist.). When an appellate court reviews whether a trial court ’ s

permanent custody decision is against the manifest weight of the evidence,

the court “ ‘ “ ‘weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the [finder of fact] clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.’ ” ’ ” Eastley v. Volkman , 132 Ohio St.3d 328, 2012

-

Ohio

- 2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon , 141 OhioAthens App. No. 2 2 CA 16 11

App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting State v.

Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶30} In a permanent custody case, the ultimate question for a

reviewing court is “whether the juvenile court ’ s findings * * * were

supported by clear and convincing evidence.” In re K.H. , 119 Ohio St.3d

538, 2008

- Ohio

- 4825, 895 N.E.2d 809, ¶ 43. In determining whether a trial

court based its decision upon clear and convincing evidence, “a reviewing

court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” State v.

Schiebel , 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). “Thus, if the children

services agency presented competent and credible evidence upon which the

trier of fact reasonably could have formed a firm belief that permanent

custody is warranted, then the court ’ s decision is not against the manifest

weight of the evidenc e.” R.M. at ¶ 55.

{¶31} Once the reviewing court finishes its examination, the court

may reverse the judgment only if it appears that the factfinder, when

resolving the conflicts in evidence, “ ‘clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.’ ” Thompkins

, 78 Ohio St.3d at 387, quoting Martin

, 20Athens App. No. 2 2 CA 16 12

Ohio App.3d at 175. A reviewing court should find a trial court ’ s permanent

custody decision against the manifest weight of the evidence only in the “

‘exceptional case in which the evidence weighs heavily against the

[decision].’ ” Id. , quoting Martin at 175.

PERMANENT CUSTODY FRAMEWORK

{¶32} R.C. 2151.414(B)(1) specifies that a trial court may grant a

children services agency permanent custody of a child if the court finds, by

clear and convincing evidence, that (1) the child ’ s best interest would be

served by the award of permanent custody , and (2) any of the following

conditions applies:

(a) The child is not abandoned or orphaned, has not been

in the temporary custody of one or more public children

services agencies or private child placing agencies for

twelve or more months of a consecutive twenty

- two

month period, or has not been in the temporary cus tody of

one or more public children services agencies or private

child placing agencies for twelve or more months of a

consecutive twenty

- two

- month period if, as described in

division (D)(1) of section 2151.413 of the Revised Code,

the child was previously in the temporary custody of an

equivalent agency in another state, and the child cannot be

placed with either of the child ’ s parents within a

reasonable time or should not be placed with the child ’ s

parents.

(b) The child is abandoned.

(c) The child is or phaned, and there are no relatives of the

child who are able to take permanent custody

. (d) The child has been in the temporary custody of one or

more public children services agencies or private child

placing agencies for twelve or more months of aAthens App. No. 2 2 CA 16 13

consec utive 22

- month period, or the child has been in the

temporary custody of one or more public children services

agencies or private child placing agencies for twelve or

more months of a consecutive twenty

- two

- month period

and, as described in division (D)(1) of section 2151.413 of

the Revised Code, the child was previously in the

temporary custody of an equivalent agency in another

state.

(e) The child or another child in the custody of the parent

or parents from whose custody the child has been removed

has been adjudicated an abused, neglected, or dependent

child on three separate occasions by any court in this state

or another state.

{¶33} In the case at bar, the trial court found that R.C.

2151.414(B)(1)(d ) applies

. Appellant does not disput e this finding.

Therefore, we do not address the issue

.

{¶34} R.C. 2151.414(D)(1) requires a trial court to consider all

relevant, as well as specific, factors to determine whether a child ’ s best

interest will be served by granting a children services age ncy permanent

custody. The specific factors include: (1) the child ’ s interaction and

interrelationship with the child ’ s parents, siblings, relatives, foster parents

and out

- of

- home providers, and any other person who may significantly

affect the child; ( 2) the child ’ s wishes, as expressed directly by the child or

through the child ’ s guardian ad litem, with due regard for the child ’ s

maturity; (3) the child ’ s custodial history; (4) the child ’ s need for a legally

secure permanent placement and whether that type of placement can beAthens App. No. 2 2 CA 16 14

achieved without a grant of permanent custody to the agency; and (5)

whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.

{¶35} Determining whether granting permanent custody to a children

services agency will promote a child ’ s best interest involves a delicate

balancing of “all relevant [best interest] factors,” as well as the “five

enumerated statutory factors.” In re C.F. , 113 Ohio St.3d 73, 2007

- Ohio

1104, 862 N.E.2d 816, ¶ 57, citing In re Schaefer , 111 Ohio St.3d 498,

2006

- Ohio

- 5513, 857 N.E.2d 532, ¶ 56; accord In re C.G. , 9th Dist. Summit

Nos. 24097 and 24099, 2008

- Ohio

- 3773, ¶ 28; In re N.W. , 10th Dist.

Franklin Nos. 07AP

- 590 and 07AP

- 591, 2008

- Ohio

- 297, ¶ 19. However,

none of the best interest facto rs requires a court to give it “greater weight or

heightened significance.” C.F. at ¶ 57. Instead, the trial court considers the

totality of the circumstances when making its best interest determination. In

re K.M.S. , 3d Dist. Marion Nos. 9

- 15

- 37, 9

- 15

- 38, and 9

- 15

- 39, 2017

- Ohio

142, ¶ 24; In re A.C. , 9th Dist. Summit No. 27328, 2014

- Ohio

- 4918, ¶ 46.

In general, “[a] child ’ s best interest is served by placing the child in a

permanent situation that fosters growth, stability, and security.” In re

C.B.C. , 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016

- Ohio

- 916, ¶

66, citing In re Adoption of Ridenour , 61 Ohio St.3d 319, 324, 574 N.E.2d

1055 (1991).Athens App. No. 2 2 CA 16 15

{¶36} In the case at bar, we do not believe that the trial court ’ s best

interest determination is against t he manifest weight of the evidence. The

agency presented substantial clear and convincing evidence that placing the

child in its permanent custody would serve the child ’ s best interest.

Child’s Interactions and Interrelationships

{¶37} The trial court n oted that Appellant attended supervised visits

with the child and appropriately interacted with the child. The court further

observed that “[m]ore importantly, [the] child appears to do well in the

foster home and appears to be bonded with that family.”

{¶38} Appellant faults the trial court for considering that all of his

visits were supervised at the visitation center. He points out that the agency

would not permit him to have unsupervised visits due to the sexual abuse

allegation, which Appellant vehemently denies. Appellant argues that the

agency’s concern regarding the sexual abuse allegation is completely

unfounded. In doing so, he points to Oshita’s testimony and claims that

Oshita testified that the allegation w as “not substantiated.” However, Oshita

did not testify that the allegation was unsubstantiated. Instead, she explained

that the agency could have found the allegation substantiated, indicated, or

unsubstantiated and that the agency found the allegation involving Appellant

to be indicated. Thus, Appellant’s assertion that Oshita testified that theAthens App. No. 2 2 CA 16 16

allegation was unsubstantiated is inconsistent with the te stimony presented

at the permanent custody hearing.

Child’s Wishes

{¶39} The record shows that the child is far too young to be able to

express his wishes directly to the court. The guardian ad litem

recommended that the court grant the agency permanent c ustody of the

child. In re I.A.

- W. , 8th Dist. Cuyahoga No. 111217, 2022

- Ohio

- 1766, ¶

37; In re S.M. , 4th Dist. Highland No. 14CA4, 2014

- Ohio

- 2961, ¶ 32 (both

recognizing that R.C. 2151.414 permits juvenile courts to consider a child ’ s

wishes as child dire ctly expresses or through the guardian ad litem ).

Custodial History

{¶40} The child has been in the agency’s temporary custody since

shortly after his birth and he has remained in the same foster home

throughout the case. The child also has been in the agency’s temporary

custody for at least 12 months out of a consecutive 22

- month period

.

Legally Secure Permanent Placement

{¶41} “Although the Ohio Revised Code does not define the term

‘legally secure permanent placement,’ this court and others have generally

interpreted the phrase to mean a safe, stable, consistent environment where a

child ’ s needs will be met.” In re M.B. , 4th Dist. Highland No. 15CA19,Athens App. No. 2 2 CA 16 17

2016

- Ohio

- 793, ¶ 56, citing In re Dyal , 4th Dist. Hocking No. 01CA12, *9

(Aug. 9, 2001) (implying that “legally secure permanent placement” means a

“stable, safe, and nurturing environment”); see also In re K.M. , 10th Dist.

Frank lin Nos. 15AP

- 64 and 15AP

- 66, 2015

- Ohio

- 4682, ¶ 28 (observing that

legally secure permanent placement requires more than stable home and

income but also requires environment that will provide for child's needs); In

re J.H. , 11th Dist. Lake No. 2012

- L

- 126, 2013

- Ohio

- 1293, ¶ 95 (stating that

mother unable to provide legally secure permanent placement when she

lacked physical and emotional stability and that father unable to do so when

he lacked grasp of parenting concepts); In re J.W. , 171 Ohio App.3d 248,

20 07

- Ohio

- 2007, 870 N.E.2d 245, ¶ 34 (10th Dist.) (Sadler, J., dissenting)

(stating that a legally secure permanent placement means “a placement that

is stable and consistent”); Black ’ s Law Dictionary 1354 (6th Ed. 1990)

(defining “secure” to mean, in part, “not exposed to danger; safe; so strong,

stable or firm as to insure safety”); Id. at 1139 (defining “permanent” to

mean, in part, “[c]ontinuing or enduring in the same state, status, place, or

the like without fundamental or marked change, not subject to fluctuation, or

alteration, fixed or intended to be fixed; lasting; abiding; stable; not

temporary or transient”). Thus, “[a] legally secure permanent placement is

more than a house with four walls. Rather, it generally encompasses a stableAthens App. No. 2 2 CA 16 18

environment w here a child will live in safety with one or more dependable

adults who will provide for the child's needs.” M.B. at ¶ 56.

{¶42} In the case before us, the trial court determined that Appellant

would be unable to provide the child with a legally secure permanent

placement due to Appellant’s lackad aisical attitude about complying with

the case plan requirements. The court found that although Appellant made

progress on his case plan, the agency or the child’s GAL had to encourage or

push Appellant to comply with the case plan. The court determined that

Appellant’s “lack of initiative creates a substantial risk of neglect or

dependency down the road if the child were returned to” him.

{¶43} Appellant disagrees with the trial court’s finding that he lacked

initiative and that agency caseworkers had to pro d him into complying with

the case plan. Appellant contends that “he was motivated to gain custody

over E.R. and was doing the best he could being a single father with limited

income.” He asserts that he complied with the case plan requirements and

that the trial court based its decision primarily upon the GAL ’s testimony,

which Appellant claims was highly subjective and based upon a high

standard of living.

{¶44} We find nothing in the record to indicate that the trial court’s

factual finding that the ag ency and the GAL had to encourage or pushAthens App. No. 2 2 CA 16 19

Appellant to comply with the case plan is against the manifest weight of the

evidence. Instead, the testimony presented at the hearing shows that the

agency or the GAL needed to inform Appellant what he needed to do to

make his home appropriate, rather than Appellant recognizing the items

needed to make his home appropriate. For instance, the GAL testified that

Appellant did not appear to have adequate food in the home, considering that

he had two teenaged boys li ving with him, and that she had to tell him that

he needed to obtain more food for the family. She stated that after she

brought the matter to Appellant’s attention, Appellant obtained more food

for the family.

{¶45} Moreover, although Appellant emphasizes that he completed

the case plan requirements, as we have observed many times in the past, a

parent’s case plan compliance may be a relevant, but not necessarily

conclusive, factor when a court considers a permanent c ustody motion. In re

B.P. , 4th Dist. Athens No. 20CA13, 2021

- Ohio

- 3148, ¶ 57; In re T.J. , 4th

Dist. Highland No. 2016

- Ohio

- 163, ¶ 36, citing In re R.L. , 9th Dist. Summit

Nos. 27214 and 27233, 2014

- Ohio

- 3117, ¶ 34 (“although case plan

compliance may be rel evant to a trial court's best interest determination, it is

not dispositive of it”); In re S.C. , 8th Dist. Cuyahoga No. 102349, 2015

-

Ohio

- 2280, ¶ 40 (“ Compliance with a case plan is not, in and of itself,Athens App. No. 2 2 CA 16 20

dispositive of the issue of reunification”); accord In re K.M. , 4th Dist. Ross

No. 19CA3677, 2019

- Ohio

- 4252, ¶ 70, citing In re W.C.J. , 4th Dist. Jackson

No. 14CA3, 2014

- Ohio

- 5841, ¶ 46 (“[s]ubstantial compliance with a case

plan is not necessarily disposi tive on the issue of reunification and does not

preclude a grant of permanent custody to a children’s services agency”); In

re N.L. , 9th Dist. Summit No. 27784, 2015

- Ohio

- 4165, ¶ 35 (“substantial

compliance with a case plan , in and of itself, does not esta blish that a grant

of permanent custody to an agency is erroneous”). “Indeed, because the trial

court’s primary focus in a permanent custody proceeding is the child’s best

interest, ‘it is entirely possible that a parent could complete all of his/her

case plan goals and the trial court still appropriately terminate his/her

parental rights.’ ” W.C.J. at ¶ 46, quoting In re Gomer , 3d Dist. Wyandot

Nos. 16

- 03

- 19, 16

- 03

- 20, and 16

- 03

- 21, 2004

- Ohio

- 1723, ¶ 36; accord In re

K.J. , 4th Dist. Athens No. 08CA14, 20 08

- Ohio

- 5227, ¶ 24 (“when

considering a R.C. 2151.414(D)(1)(d) permanent custody motion, the focus

is upon the child’s best interests, not upon the parent's compliance with the

case plan ”). Thus, a parent’s case plan compliance will not preclude a trial

c ourt from awarding permanent custody to a children services agency when

doing so is in the child’s best interest. Id.Athens App. No. 2 2 CA 16 21

{¶46} Here, even if Appellant complied with the approved case plan

requirements, the agency also recommended that Appellant undergo a

mental health evaluation to address its concern regarding the indicated

sexual abuse allegation. Oshita testified that as long as the abuse allegation

remained indicated, the child could not be placed in Appellant’s custody.

A ppellant, however, refused to complete a mental health evaluation.

{¶47} The GAL additionally thought that a mental health evaluation

was needed due to so me angry outbursts she had noticed when talking to

Appellant and due to Appellant’s admission that he has anger issues.

Appellant, however, refused to complete a mental health evaluation.

Appellant’s refusal to complete a mental health evaluation has set a barrier

that prevents the agency from attempting to place the child in his custody, or

even from attempting unsupervised visits. This refusal also supports the trial

court’s finding that Appellant cannot provide the child with a legally secure

permanen t placement.

{¶48} Appellant nevertheless argues that his situation is similar to the

circumstances in In re S.C.

, 189 Ohio App.3d 308, 2010

- Ohio

- 3394, 938

N.E.2d 390 (4th Dist.). In that case, we reversed a trial court’s decision to

place a child in an a gency’s temporary custody primarily because the trial

court relied upon an outdated, two

- year

- old psychological report. Id. at ¶ 33Athens App. No. 2 2 CA 16 22

(stating that trial court’s permanent custody decision “should not be made

primarily on the basis of a two

- year

- old psychol ogical evaluation when

conditions regarding both [the parent’s] sobriety and his home environment

have demonstrably changed”). Here, however, the trial court did not rely

upon an outdated, two

- year

- old psychological report. Instead, the trial court

cited current conditions to support its decision.

{¶49} In sum, the totality of the circumstances support s the trial

court’s finding that placing the child in the agency’s permanent custody is in

the child’s best interest. The child has been in the agency’s temporary

custody for the vast majority of his young life and has lived with the same

foster family thr oughout that time. The evidence shows that the child is

bonded with the family and integrated into their household. The trial court

could have reasonably determined that e ven if Appellant’s physical home

environment meets the child’s basic needs, disrupt ing the child’s life by

removing him from the only home that he has ever known and placing him

in a home where Appellant may or may not be able to recognize the needs of

a young child would not be in the child’s best interest. Moreover, the

agency remaine d concerned about the indicated sexual abuse allegation and

Appellant’s refusal to complete a mental health assessment. Based upon allAthens App. No. 2 2 CA 16 23

of the foregoing reasons, we are unable to find that the trial court’s best

interest determination is against the manife st weight of the evidence.

{¶50} Accordingly, we overrule Appellant’s first assignment of error.

SECOND ASSIGNMENT OF ERROR

{¶51} In his second assignment of error, Appellant asserts that the

trial court erred by failing to notify him of his right to appeal

. Appellant

points out that Juv.R

. 34 ( J ) requires trial courts, at the end of dispositional

hearings, to advise parties of their right to appeal contested proceedings.

Appellant contends that the court’s error prejudiced his ability to file proper

documentation with his pro se notice of appeal.

{¶52} In the case at bar , at the end of the permanent custody hearing

the court indicated that it would take the matter under advisement. The

court did not mention that Appellant would have a right to appeal the court’s

decision if the court granted the agency permanent custody of the child

.

W hen the court issued its written decision it stated that the decision did not

affect any party’s right to appeal . The decision also included language to

notify the parties that the decision was a final, appealable order. Even if the

trial court erred, however , we note that Appellant perfect ed his appeal within

30 days of the trial court’s judgment a nd successfully sought appointed

counsel

. Moreover, given that Appellant has appealed, no remedy exists.Athens App. No. 2 2 CA 16 24

Thus, the issue is moot

. See , e.g., In re Carrie O. , 6th Dist. Huron No. H

05

- 007, 2006

- Ohio

- 858 (finding failure

- to

- advise error moot due to

existence of appeal) ; In re Brown , 4th Dist. Scioto No. 98CA2598, 1999

WL 305225, *4 (May 10, 1999) (concluding that failing to advise juvenile of

right to appeal did not prejudice juvenile , who filed a pro se appeal ) ; see

generally Bryan v. Chytil , 4th Dist. Ross No. 20CA3723, 2021

- Ohio

- 4082, ¶

185, quoting Miner v. Witt , 82 Ohio St. 237, 92 N.E. 21, syllabus (1910)

(stating that a case is moot when an event occurs that “renders it impossib le

for the court to grant any relief” )

.

{¶53} Accordingly, based upon the foregoing reasons, we overrule

Appellant’s second assignment of error.

CONCLUSION

{¶54} Having overruled Appellant’s two assignments of error, we

affirm the trial court’s judgment

.

JUDGMENT AFFIRMED

.Athens App. No. 2 2 CA 16 25

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be

assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing

the Athens County Common Pleas Court , Juvenile Division, to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

Hess, J. and Wilkin, J. concur in Judgment and Opinion.

For the Court,

_____________________________ Jason P. Smith

Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final

judgment entry and the time period for further appeal commences from

the date of filing with the clerk.