[Cite as In re D.Y., 2017-Ohio-5754.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

IN THE MATTER OF: 

 D.Y. 

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Appellate Case No. 27450 

Trial Court Case No. 2007-7918 

(Juvenile Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 7th day of July, 2017. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ALICE PETERS, Atty. Reg. No. 0093945, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 

West Third Street, 5TH Floor, Dayton, Ohio 45422 

 Attorney for Appellee, Montgomery County Children Services Board 

 

CHRISTOPHER EPLEY, Atty. Reg. No. 0070981, 10 West Second Street, Suite 2400, 

Dayton, Ohio 45402 

 Attorney for Appellant 

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HALL, P.J. 

{¶ 1} Montgomery County Children Services (MCCS) has a very long history with 

the mother in this case. She has six children and has now lost custody of them all. All of 

them are in the permanent custody of MCCS. The case before us concerns the permanent 

custody of the youngest child, 11-year-old “Dana1.” We conclude that the decision to grant 

MCCS permanent custody of her is not contrary to the manifest weight of the evidence 

and is not an abuse of the court’s discretion. So we affirm. 

I. Background 

{¶ 2} In 2007, MCCS filed a dependency complaint as well as a motion for ex parte 

custody of Dana. The motion was granted, and MCCS was given interim temporary 

custody. Later, Dana was adjudicated dependent, and in 2009, her father was given legal 

custody. In 2011, after allegations of abuse by Dana’s caregivers surfaced, MCCS was 

again given temporary custody of her. Later that year, the juvenile court suspended 

parental visitation because of Dana’s mental-health issues. MCCS’s temporary custody 

was extended in 2012 and extended again the following year. Early in 2013, Dana was 

placed in a planned permanent living arrangement. 

{¶ 3} In 2015, MCCS moved for permanent custody of Dana. A magistrate 

sustained the motion in January 2016, and Mother filed objections with the juvenile court. 

Mother argued, among other things, that the magistrate was incorrect in finding that it was 

in Dana’s best interest for MCCS to have permanent custody. The juvenile court overruled 

all of Mother’s objections and sustained MCCS’s motion, granting it permanent custody 

 

1 We use this pseudonym to protect the identity of the minor child. 
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of Dana and terminating Mother’s parental rights. 

{¶ 4} Mother appealed. 

II. Analysis 

{¶ 5} Mother assigns two errors to the juvenile court. The first alleges that the court 

erred by finding that granting permanent custody to MCCS is in Dana’s best interest. And 

the second alleges that the permanent-custody decision is against the manifest weight of 

the evidence. 

{¶ 6} The United States Supreme Court has described the interest of parents in 

the care, custody, and control of their children as “perhaps the oldest of the fundamental 

liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 

2054, 147 L.Ed.2d 49 (2000). And the Ohio Supreme Court has recognized that “there is 

an essential and basic civil right to conceive and raise children.” In re K.H., 119 Ohio 

St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 39. But “[t]he fundamental interest of 

parents is not absolute.” In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, 

¶ 11. “The state has broad authority to intervene to protect children from abuse and 

neglect.” State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court, 

Prob. Div., Ohio Sup.Ct. Slip Opinion No. 2016-Ohio-7382, ¶ 58 (O’Connor, C.J., 

dissenting), citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. 

{¶ 7} The termination of parental rights is governed by R.C. 2151.414. Division 

(B)(1) of that statute requires a court to determine, “by clear and convincing evidence, 

that it is in the best interest of the child to grant permanent custody of the child to the 

agency that filed the motion for permanent custody,” and that certain other conditions 

apply. Clear and convincing evidence has been defined as “ ‘that measure or degree of 
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proof which is more than a mere “preponderance of the evidence,” but not to the extent 

of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which 

will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought 

to be established.’ ” In re K.H. at ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 

N.E.2d 118 (1954), paragraph three of the syllabus. 

{¶ 8} A court’s decision to terminate parental rights “will not be overturned as 

against the manifest weight of the evidence if the record contains competent, credible 

evidence by which the court could have formed a firm belief or conviction that the essential 

statutory elements for a termination of parental rights have been established.” (Citations 

omitted.) In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. “We review 

the trial court’s judgment for an abuse of discretion.” In re L.C., 2d Dist. Clark No. 2010 

CA 90, 2011-Ohio-2066, ¶ 14, citing In re C.F. at ¶ 48 (applying the abuse-of-discretion 

standard to trial court’s findings under R.C. 2151.414). 

{¶ 9} A two-part test applies to determine whether to grant a public children 

services agency’s motion for permanent custody. R.C. 2151.414(B)(1) provides that a 

court may grant permanent custody if it clearly and convincingly finds that (1) the child’s 

best interest lies in granting permanent custody to the agency, and (2) any of the statutory 

alternatives apply, one of which is the child has been in the temporary custody of one or 

more public or private children services agencies for 12 or more months of a consecutive 

22-month period, R.C. 2151.414(B)(1)(d). As to the second part of the test, there is no 

dispute that it is satisfied. Dana has been in MCCS’s temporary custody for over 12 

months of a consecutive 22-month period. Indeed, Mother challenges only the juvenile 

court’s finding that granting MCCS permanent custody is in Dana’s best interest. So our 
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review focuses on the first part of the permanent-custody test—the best-interest 

determination and the evidence supporting it. 

{¶ 10} In determining a child’s best interest, R.C. 2151.414 instructs courts to 

consider “all relevant factors,” including five statutory factors: 

(a) The interaction and interrelationship of the child with the child’s parents, 

siblings, relatives, foster caregivers, out-of-home providers, and any other 

person who may significantly affect the child; 

(b) The wishes of the child, as expressed directly by the child or through the 

child’s guardian ad litem, with due regard for the maturity of the child; 

(c) The custodial history of the child * * *; 

(d) The child’s need for a legally secure permanent placement and whether 

that type of placement can be achieved without a grant of permanent 

custody to the agency; 

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply 

in relation to the parents and child. 

R.C. 2151.414(D)(1). “No one element is given greater weight or heightened 

significance.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 57. 

The juvenile court here considered each of these factors. 

(a) Dana’s interactions and interrelationships 

{¶ 11} The court found that the first factor weighs in favor of granting permanent 

custody to MCCS. Angela Hosier, the family’s MCCS caseworker from July 2013 through 

March 2014, testified that more often than not, Mother attended visitation at MCCS. 

Hosier said that during Mother’s visits she never saw anything about the interaction of 
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Mother and Dana that concerned her. But Mother’s interactions with others is a different 

matter. Hosier testified that Mother’s anger could be quickly aroused and that Mother then 

became very loud, argumentative, and aggressive. Mother’s volatile behavior troubled 

her, Hosier said, because Dana reacts much more positively when those around her are 

calm. Hosier testified that Mother has a bond with Dana and wants to be reunited with 

her. 

{¶ 12} Nell Oliver-Elliott was the family’s caseworker for a time in 2013 and again 

from March 2014 to March 2015. She observed Mother and Dana together in 2013 and 

said that the interactions were appropriate and that the two had a strong bond then. But 

Oliver-Elliott testified that she did not see them together during her second tenure as the 

caseworker. 

{¶ 13} Vikki Carter is the family’s current caseworker. She testified that Dana is 

currently in a treatment foster-care home in Cincinnati where she has been since May 

2015. The foster parents have two children, and another foster child is also living in the 

home. Carter said that Dana’s needs are being met in the foster home and that she is 

doing well. One of the foster parents has established a really good relationship with Dana 

and is able to calm her down. Carter said that Dana is incorporated into the family. Dana 

is settled in the foster home, said Carter, and has bonded with her foster family, including 

with the foster parents’ children, whom she considers her brothers. Carter testified that in 

her experience children with issues like Dana’s need to be in a home with structure and 

that Dana’s foster family works hard to provide her that structure. Carter said that Dana 

is responding well. Carter testified that she has not broached the subject of the foster 

family’s role with the family if permanent custody is given to MCCS. But she noted that 
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the foster family is invested in Dana and that Dana seems to be invested in the family. 

Carter said that Dana sometimes says that she wants to live with her foster parents. 

{¶ 14} Dana has not had contact with either of her parents for quite some time 

because of her mental-health issues. From the time Dana went into residential care in 

November 2013 until March 2014, Mother had no visits with her. Indeed, Mother never 

visited Dana while she was in residential care, though Mother did have some phone 

contact and sent Dana Christmas gifts. As it stands right now, Mother has not seen or 

spoken to Dana for about three years. 

(b) Dana’s wishes 

{¶ 15} The juvenile court found that the second statutory factor is neutral. The court 

found that Dana has said that she wants to live with “Mom” but that she has referred to 

several people as Mom. Dana has said sometimes that she wants to live with her 

biological mother but has said other times that she wishes to live with her current foster 

parents. The court noted that Carter testified that Dana never asked her about seeing 

Mother. 

(c) Dana’s custodial history 

{¶ 16} The juvenile court found that the third factor weighs in favor of granting 

permanent custody to MCCS. The court found that since she was barely two years old, 

Dana has lived with her father, in multiple foster and treatment homes, and in at least two 

residential-treatment facilities. 

(d) Dana’s need for permanency 

{¶ 17} The juvenile court found that the fourth factor weighs in favor of granting 

permanent custody to MCCS, saying that a legally secure, permanent placement cannot 
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be achieved without granting permanent custody to MCCS. Dana has spent a good part 

of her life—over 4 of her 11 years—in the custody of MCCS. Given the length of time that 

she has been removed from the home and the fact that MCCS has twice been granted 

temporary-custody extensions, said the court, Dana is in desperate need of a legally 

secure, permanent placement. The court also noted that Dana’s CASA/GAL 

recommended that MCCS be given permanent custody. 

{¶ 18} The juvenile court noted that MCCS does not believe that reunification is 

possible at any time in the foreseeable future. A case plan for Mother has been in place 

throughout her entire involvement with MCCS. The objectives set out in the plan are the 

same as those in the cases concerning her other children. The juvenile court found that 

while Mother has completed some of the objectives, she still has not completed the most 

critical objectives. Mother has not obtained and maintained permanent housing suitable 

for her and Dana; Mother has not completed mental-health treatment; Mother has not 

completed substance-abuse treatment; Mother has not learned how to work with Dana; 

Mother has not followed the recommendations from her parenting/psychological 

assessment; and Mother has not completed a visitation assessment. 

{¶ 19} The caseworkers testified that if MCCS is granted permanent custody, 

Dana’s case would be transferred to the adoption unit so that a caregiver or foster parent 

can be identified who is willing and able to meet Dana’s needs. The caseworkers 

expressed hope that Dana might be able to stay in her current foster home. 

(e) The factors in R.C. 2151.414(E)(7) to (11) 

{¶ 20} The court found that the final statutory factor weighs in favor of granting 

permanent custody to MCCS. The factor in R.C. 2151.414(E)(10) concerns whether the 
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parent has abandoned the child. A child is presumed abandoned if the parents have failed 

to visit or maintain contact with the child for more than 90 days. R.C. 2151.011(C). This 

presumption persists even if the parents resume contact with the child after the period of 

abandonment. Id. While recognizing that Dana’s behavior led to a ban on visitation, the 

juvenile court found that Mother has not seen Dana for 3 years and has not spoken to her 

since August 2014 and that this lack of visitation and communication exceeds 90 days. 

The factor in R.C. 2151.414(E)(11) concerns whether the parent has had parental rights 

involuntarily terminated with respect to a sibling “and the parent has failed to provide clear 

and convincing evidence to prove that, notwithstanding the prior termination, the parent 

can provide a legally secure permanent placement and adequate care for the health, 

welfare, and safety of the child.” The court found that Mother has had her parental rights 

involuntarily terminated as to all five of her other children. And the court’s findings show 

that Mother failed to prove that she can adequately care for Dana. 

{¶ 21} The manifest weight of the evidence is not against the juvenile court’s 

finding that granting MCCS permanent custody is in Dana’s best interest. The court 

considered the statutory best-interest factors, and the evidence supports the court’s 

findings as to each factor. Based on the evidence and the court’s findings, we cannot say 

that the court abused its discretion by granting MCCS permanent custody of Dana. 

{¶ 22} Both assignments of error are overruled. 

III. Conclusion 

{¶ 23} We have overruled both of the assignments of error presented. The juvenile 

court’s judgment is therefore affirmed. 

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DONOVAN, J. and TUCKER, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Alice Peters 

Jean Steigerwald 

Christopher Epley 

Steven Abshire 

Bradley Baldwin 

Hon. Anthony Capizzi