[Cite as In re AJ, 2016-Ohio-248.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

CRAWFORD COUNTY 

 

IN RE: 

 A.J. CASE NO. 3-15-12 

ADJUDGED NEGLECTED CHILD. 

[BRITTANY C. JOHNSON – O P I N I O N 

 APPELLANT]. 

 

Appeal from Crawford County Common Pleas Court 

Juvenile Division 

Trial Court No. F2145134 

Judgment Affirmed 

Date of Decision: January 25, 2016 

 

APPEARANCES: 

 

Geoffrey L. Stoll for Appellant, Brittany C. Johnson 

 Michael J. Wiener for Appellee, Crawford County JFS 

 Brian N. Gernert for Appellee, Brian K. Schultow 
Case No. 3-15-12 

-2- 

ROGERS, J., 

{¶1} Appellant, Brittany Johnson (“Brittany”), appeals the judgment of the 

Court of Common Pleas of Crawford County, Juvenile Division, granting 

permanent custody of her minor child, A.J., to the Crawford County Department 

of Job and Family Services (“CCDJFS”). On appeal, Brittany argues that (1) 

CCDJFS did not make a good faith effort to reunify parent and child and (2) the 

trial court’s decision was not supported by clear and convincing evidence. For the 

reasons that follow, we affirm the judgment of the trial court. 

{¶2} On July 22, 2014, CCDJFS filed a complaint in the Court of Common 

Pleas of Crawford County, Juvenile Division, alleging that A.J. was a neglected 

child pursuant to R.C. 2151.03(A)(2). The complaint stemmed from the fact that 

Brittany gave birth to A.J. while serving a 4 year and 11 month prison sentence. 

{¶3} Later that day, a shelter-care hearing was held, and CCDJFS was 

granted temporary custody of A.J. 

{¶4} On August 4, 2014, A.J.’s maternal grandmother, Shari Johnson 

(“Shari”), and A.J.’s maternal great-grandmother, Joanna Johnson (“Joanna”), 

filed a motion to intervene seeking temporary custody of A.J. or, in the alternative, 
Case No. 3-15-12 

-3- 

visitation rights.1

 The State filed its response, claiming that both Shari and Joanna 

were unfit to care for A.J. In its response, the State stated that 

[t]he agency ha[s] knowledge of * * * [Shari] as she previously had 

involvement with [CCDJFS] or its predecessor agency, the Crawford 

County Children’s Services Board. In 1995 through Case Nos. 

C955578 / C955579 / C95580 / C95581, [Shari’s] children were 

found to have been in a neglected / dependent condition. In 2011, 

through Case No. C2115109, [Shari’s] child was found to have been 

in a neglected condition. [Shari] was also listed as the alleged 

perpetrator in additional substantiated neglect cases with the agency. 

Based upon the prior adjudications alone, a home-study evaluation 

on [Shari] would not pass. 

CCDJFS did initiate a home-study evaluation of [Joanna,] at the 

mother’s request for possible placement. Based upon the 

investigation conducted by the caseworker, [Joanna] did not pass the 

home-study evaluation as there is a registered sex-offender * * * 

residing in the residence, additionally [Joanna] was listed as the 

alleged perpetrator in a substantiated neglect case with the agency. 

Related to the within proceedings, but not necessarily the homestudy evaluation, [Joanna,] during a previous child-welfare 

proceeding, indicated that due to her health and various personal 

reasons, as well as her inability to take the child to various 

appointments, she was unable to care for said child and asked that 

said child be removed from her custody. Said child was thirteen (13) 

at the commencement of the companion case. Considering the 

potential specialized medical needs of [A.J.] if [Joanna] was not able 

to care for a thirteen (13) year old, and take her to all of her various 

appointments, she certainly would not be in a position to provide the 

necessary care for [A.J.], [an] infant. 

(Docket No. 7, p. 2-3). By entry dated February 5, 2015, the trial court denied the 

Johnsons’ motion. 

 

1

 In the Johnsons’ motion to intervene, Shari is identified as A.J.’s maternal aunt and Joanna is identified as 

A.J.’s maternal grandmother. In reviewing the record, it appears, in fact, that Shari is A.J.’s maternal 

grandmother and Joanna is A.J.’s maternal great-grandmother. 
Case No. 3-15-12 

-4- 

{¶5} On August 18, 2014, a hearing was held on the complaint, and the trial 

court found, by clear and convincing evidence, that A.J. was neglected pursuant to 

R.C. 2151.03(A)(2). 

{¶6} The following month, CCDJFS opened a home study, through the 

Interstate Compact on the Placement of Children (“ICPC”), on A.J.’s father, Brian 

Schultow, who was living in Pennsylvania. 

{¶7} On October 10, 2014, a dispositional hearing was held. Based on 

Schultow’s desire to be considered as a placement for A.J., CCDJFS established a 

case plan for Schultow setting forth the following objectives: (1) obtain and 

maintain a stable hazard-free residence for himself and A.J. for at least 90 days; 

(2) maintain income to ensure that he will be able to meet all of A.J.’s basic needs; 

(3) sign all requested releases of information; and (4) cooperate with CCDJFS and 

case plan goals. These objectives stemmed from the fact that Schultow was 

recently released from prison and was living in a half-way house. 

{¶8} By entry dated October 20, 2014, the trial court approved and adopted 

CCDJFS’s case plan. 

{¶9} On January 22, 2015, CCDJFS filed its semiannual administrative 

review report. In its report, CCDJFS stated that Schultow had made insufficient 

progress toward meeting his case plan objectives. The report stated, in relevant 

part: 
Case No. 3-15-12 

-5- 

 [Schultow] does have employment. He does not have any cognitive 

or physical delays. * * * It is unclear how [Schultow] and [Brittany] 

view their own strength and problem areas as they have little to no 

contact with the agency. Worker did request an ICPC home study 

from Dauphin County Child and Youth in Pennsylvania for 

[Schultow] at his new address; worker has not yet received any 

results of this home study. [Schultow] did not show up for his visit 

with [A.J.] that was scheduled for 10/10/14 at 1pm. [Schultow] has 

not fully cooperated with the ICPC home study as he has not 

obtained a physical exam which is needed to complete the home 

study. 

[Schultow] reports that he has an apartment; however, there has been 

no verification of this through ICPC in Pennsylvania. The amount 

of his income is unknown; therefore, it is unclear if he has sufficient 

income to support an infant, including daycare, while he works. 

[Schultow] has not fully cooperated with the ICPC parent home 

study. He has never met [A.J.], who will be six months old on 

January 22, 2015. [Schultow] scheduled two visits with his daughter 

in the last six months and did not attend either visit. 

(Docket No. 20, p. 4). 

{¶10} Based on this information, on January 29, 2015, the State filed a 

motion for permanent custody, pursuant to R.C. 2151.413, and a hearing was set 

for April 13, 2015. 

{¶11} Thereafter, Brittany sent a letter to the trial court insisting that A.J.’s 

great-aunt, Jodi Johnson (“Jodi”), care for A.J. 

{¶12} On April 3, 2015, the State filed a motion to continue. In its motion, 

the State explained that 

[CCDJFS] just received the ICPC home study evaluation for 

[Schultow], which approved his prior place of residence. An 

additional home-study evaluation is now required of [Schultow] as 
Case No. 3-15-12 

-6- 

he has changed his residence since the original evaluation was 

completed. Furthermore, despite the demonstrated lack of 

commitment to [A.J.] by his failing to ever visit the child, in order to 

allow [Schultow] the opportunity to develop a bond with the child 

such that it might become appropriate to place [A.J.] with 

[Schultow], a short continuance is necessary herein. 

(Docket No. 36, p. 1). The hearing was rescheduled for May 26, 2015. 

{¶13} On May 26, 2015, A.J.’s guardian ad litem filed a report 

recommending that permanent custody of A.J. be awarded to CCDJFS. In 

support, A.J.’s guardian ad litem noted that Schultow had neither met A.J. nor 

been cooperative with CCDJFS. 

{¶14} That same day, a permanent custody hearing was held. When 

Schultow failed to appear, his attorney offered the following explanation: 

Obviously, I have tried to send mail to him. Most – well, all of those 

letters have been returned since our last hearing date. I tried at 

multiple addresses and was unable to get anything through to him. I 

have spoken to him on the telephone and kind of explained the 

situation. Obviously, for whatever reason, I have not been able to 

speak to him as of late, but I’m sure that had he been able to be here, 

he would have been here today. 

May 26, 2015 Hrg., p. 10. 

{¶15} The hearing proceeded, and the State called Sue Bauer, foster care 

and adoption coordinator at CCDJFS, as its sole witness. 

{¶16} Bauer testified that CCDJFS obtained temporary custody of A.J. in 

July 2014, after Brittany gave birth to A.J. while incarcerated. She explained that, 
Case No. 3-15-12 

-7- 

prior to placing A.J. in foster care, CCDJFS opened a home study on several of 

Brittany’s relatives in hope of finding a suitable relative placement for A.J. 

{¶17} Bauer stated that during Joanna’s home study, CCDJFS learned that 

a registered sex-offender was living in the home. Moreover, the living conditions 

were unfit for a child—Joanna’s home consisted of the upper level of a beauty 

salon and lacked basic resources. For these reasons, Joanna was not approved as a 

relative placement for A.J. 

{¶18} Bauer stated that during Jodi’s home study, CCDJFS learned that she 

had been previously charged with child endangering in January 2002. 

Additionally, at the time of the home study, Jodi lacked income. For these 

reasons, Jodi was not approved as a relative placement for A.J., and ultimately, 

A.J. was placed in foster care. 

{¶19} Bauer stated that a few months later, in September 2014, CCDJFS 

opened a home study on Schultow through ICPC, but by January 2015, CCDJFS 

had not received a finalized report from ICPC demonstrating Schultow’s ability to 

care for A.J. According to Bauer, CCDJFS requested information from ICPC, but 

ICPC did not respond. As a result, CCDJFS closed Schultow’s home study in late 

January 2015. 

{¶20} Although Bauer acknowledged that a home study can take up to one 

year to complete, she stated that Schultow’s home study was closed because “it 
Case No. 3-15-12 

-8- 

took so long for [ICPC] to complete it and we needed permanency for the child.” 

May 26, 2015 Hrg., p. 28. She added that “[Schultow] was free to work on his 

case plan and visit his child and so on. He did not do that.” Id. at p. 30. 

{¶21} Bauer admitted that shortly thereafter, in early February 2015, she 

received a finalized report from ICPC indicating that Schultow’s residence had 

been approved and that he could meet A.J.’s day-to-day needs, including food and 

child-care. The report showed that Schultow had numerous contacts with Jewish 

Social Services, the agency conducting Schultow’s home study, between 

September 2014 and January 2015 and concluded that “Mr. Schultow would be 

considered as a permanent resource for [A.J.] as long as he can show proof of 

residency, stability, at the time of placement.” Id. at p. 31. Bauer added, however, 

that the report failed to include verification of Schultow’s income. 

{¶22} Upon receiving this report, Bauer stated that CCDJFS did not reopen 

Schultow’s interstate home study because “since [February 2015], [Schultow] had 

not remained stable enough in his living environment for us to have any idea 

whether we would ever open another one.” Id. at p. 39. In fact, Bauer added that 

she currently did not have a valid address for Schultow. 

{¶23} Bauer stated that CCDJFS’s goal was to achieve permanency for 

A.J., who had been in foster care since birth. She acknowledged that from the 

case’s inception, CCDJFS believed that A.J. would be placed for adoption. 
Case No. 3-15-12 

-9- 

{¶24} According to Bauer, A.J. had bonded with her foster parents, who 

had been caring for her since she was three days old. She explained that 

[A.J.’s] a happy baby. She’s starting to crawl around and play with 

the dog. [A.J.’s foster parents] take her to church and to their 

family’s functions and they have a large circle of support within 

their family and the church family also. * * * At a recent visit, the 

foster parent got up and walked around the corner to get something, 

and [A.J.] began to wimper [sic] and started crawling after her, 

because she was worried about her being out of her eyesight. 

Id. at p. 19-20. 

{¶25} By entry dated June 23, 2015, the trial court granted permanent 

custody to CCDJFS. In doing so, the trial court made the following findings: 

From all the information presented, the court finds by clear and 

convincing evidence that the child should not or could not be placed 

with either parent because [Brittany] will be incarcerated and not be 

available to care for the child for more than eighteen months as 

provided in O.R.C. Sec. 2151.414(E)(12) and that [Schultow] has 

continuously failed to substantially remedy the conditions causing 

the child to be placed outside the home and has demonstrated a lack 

of commitment toward the child as provided in O.R.C. Sec. 

2151.414(E)(1) and (4); and that this situation is not likely to 

improve in the near foreseeable future as provided in O.R.C. Sec 

2151.414(B)(2); that there are no suitable and appropriate family 

members or relatives to assume long-term placement of the child; 

and that considering the factors established in O.R.C Sec. 

2151.414(D) that it would be in the best interests of the child to 

grant permanent custody to the public child caring agency. 

(Docket No. 44, p. 8). 
Case No. 3-15-12 

-10- 

{¶26} It is from this judgment that Brittany appeals, presenting the 

following assignments of error for our review.2

 

Assignment of Error No. I 

CRAWFORD COUNTY DEPARTMENT OF JOB AND 

FAMILY SERVICES DID NOT ACT IN GOOD FAITH / 

MAKE A GOOD FAITH EFFORT TO REUNIFY PARENT 

AND CHILD. 

Assignment of Error No. II 

CLEAR AND CONVINCING EVIDENCE DID NOT EXIST 

TO JUSTIFY A FINDING THAT IT WAS IN THE BEST 

INTEREST OF THE MINOR CHILD TO TERMINATE 

PARENTAL RIGHTS AND AWARD PERMANENT 

CUSTODY OF THE MINOR CHILD TO CRAWFORD 

COUNTY DEPARTMENT OF JOB AND FAMILY 

SERVICES. 

{¶27} Due to the nature of Brittany’s assignments of error, we elect to 

address them out of order. 

Assignment of Error No. II 

{¶28} In her second assignment of error, Brittany argues that the trial 

court’s decision to grant permanent custody of A.J. to CCDJFS was not supported 

by clear and convincing evidence. Specifically, Brittany argues that her parental 

rights were improperly terminated insofar as A.J. could have been placed with 

Schultow or Jodi. We disagree. 

 

2

 Schultow did not file a notice of appeal in this case and is not an appellant herein. Brittany’s assignments 

of error rest on the premise that her parental rights should not have been terminated insofar as A.J. could 

have been placed with either Schultow or Jodi. 
Case No. 3-15-12 

-11- 

{¶29} Initially, we note that “the right to raise a child is an ‘essential’ and 

‘basic’ civil right.” In re Hayes, 79 Ohio St.3d 46, 48 (1997), citing In re Murray, 

52 Ohio St.3d 155, 157 (1990). These rights, however, are not absolute. In re 

Thomas, 3d Dist. Hancock No. 5–03–08, 2003–Ohio–5885, ¶ 7, citing Murray at 

157. Parental rights “are always subject to the ultimate welfare of the child, which 

is the polestar or controlling principle to be observed.” In re Cunningham, 59 

Ohio St.2d 100, 106 (1979). 

{¶30} After a child has been adjudicated neglected and temporary custody 

has been granted to a children services agency, the agency may file a motion for 

permanent custody under R.C. 2151.415(A)(4). In re Esparza, 3d Dist. Marion 

Nos. 9–06–25, 9–06–27, 2007–Ohio–113, ¶ 25. Under R.C. 2151.414(B)(1), 

before a court can terminate parental rights and award permanent custody to an 

agency of the state, it must find that (1) the grant of permanent custody to the 

agency is in the best interest of the child, and (2) any of the following apply: 

(a) The child cannot be placed with either parent within a 

reasonable time or should not be placed with either parent. 

* * * 

{¶31} In determining whether a grant of permanent custody is in the best 

interest of the child, R.C. 2151.414(D)(1) sets forth a non-exhaustive list of factors 

for the court to consider. These factors include: 
Case No. 3-15-12 

-12- 

(a) The interaction and interrelationship of the child with the 

child’s parents, siblings, relatives, foster caregivers and out-ofhome 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; 

* * * 

(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; 

* * *. 

R.C. 2151.414(D)(1)(a)-(b), (d). 

{¶32} After it has been determined that a grant of permanent custody is in 

the best interest of the child, the court must determine whether “the child cannot 

be placed with either parent within a reasonable time or should not be placed with 

either parent.” In making this determination, R.C. 2151.414(E) provides the 

following instruction: 

If the court determines, by clear and convincing evidence * * * that 

one or more of the following exist as to each of the child’s parents, 

the court shall enter a finding that the child cannot be placed with 

either parent within a reasonable time or should not be placed with 

either parent: 

(1) Following the placement of the child outside the child’s home * 

* * the parent has failed continuously and repeatedly to 

substantially remedy the conditions causing the child to be 

placed outside the child's home; 
Case No. 3-15-12 

-13- 

* * * 

(4) The parent has demonstrated a lack of commitment toward the 

child by failing to regularly support, visit, or communicate with 

the child when able to do so, or by other actions showing an 

unwillingness to provide an adequate permanent home for the 

child; 

* * * 

(16) Any other factor the court considers relevant. 

(Emphasis added.) In other words, “the trial court only needs to find one of the 

factors listed in (E) as to each parent before it ‘shall’ render a finding that a child 

cannot be placed with either parent.” In re Matthews, 3d Dist. Marion Nos. 9–07–

28, 9–07–29, 9–07–34, 2008–Ohio–276, ¶ 26, quoting R.C. 2151.414(E). 

{¶33} A permanent custody determination generally must be supported by 

clear and convincing evidence. In re Hiatt, 86 Ohio App.3d 716, 725 (4th 

Dist.1993). 

{¶34} Clear and convincing evidence is 

[t]he measure or degree of proof that will produce in the mind of the 

trier of fact a firm belief or conviction as to the allegations sought to 

be established. It is intermediate, being more than a mere 

preponderance, but not to the extent of such certainty as required 

beyond a reasonable doubt as in criminal cases. It does not mean 

clear and unequivocal. 

In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986). When “the degree of proof 

required to sustain an issue must be clear and convincing, a reviewing court will 

examine the record to determine whether the trier of facts had sufficient evidence 
Case No. 3-15-12 

-14- 

before it to satisfy the requisite degree of proof.” Cross v. Ledford, 161 Ohio St. 

469, 477 (1954). In other words, “the decision of a trier of fact relating to a 

motion for permanent custody of children will not be overturned, so long as the 

record contains competent credible evidence from which the trial court could have 

formed a firm belief or conviction that the essential statutory elements have been 

established.” In re Robinson, 3d. Dist. Allen No. 1-08-24, 2008-Ohio-5311, ¶ 13. 

{¶35} First, we consider whether the trial court’s finding that it was in 

A.J.’s best interest to grant permanent custody to CCDJFS was supported by 

competent, credible evidence. 

{¶36} Again, in making a best-interest finding, R.C. 2151.414(D)(1) 

provides a non-exhaustive list of factors to consider. These factors include: 

(a) The interaction and interrelationship of the child with the 

child's parents, siblings, relatives, foster caregivers and out-ofhome 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; 

* * * 

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

whether that that type of placement can be achieved without a 

grant of permanent custody to the agency; 

* * * 

R.C. 2151.414(D)(1)(a)-(b), (d). 
Case No. 3-15-12 

-15- 

{¶37} Here, the trial court relied on the above-mentioned factors in finding 

that it would be in A.J.’s best interest to grant permanent custody to CCDJFS. In 

its entry, the trial court stated that 

The record should reflect that the court took judicial notice that the 

written report of the Guardian Ad Litem, as required by O.R.C. Sec. 

2151.414(C) was officially filed of record before the hearing and 

was taken into consideration in this decision. 

* * * 

There was testimony presented as to the evaluation of other family 

members or relatives for consideration of long-term alternative 

placement. Although requested, there were no names or information 

of any paternal family members or relatives provided to the agency 

for home-study evaluation. [Shari] has had previous involvement 

with neglect and dependency adjudication of her own children which 

would disqualify her from consideration. [Joanna] was found to 

have inadequate living space, a registered sex offender residing 

upstairs and during a previous child-welfare proceeding placement 

asked for the child to be removed from her custody due to her health 

and various personal problems. [Jodi] was found to have a previous 

child-welfare case in Richland County, a previous child endangering 

charge from 2002 and not employed at the time of the inquiry. 

* * * 

[Schultow] does not appear to be motivated or committed to 

completing the things necessary to be considered for placement of 

this child and that there is no true interpersonal parent-child 

relationship in existence. That it would be in the best interest of 

[A.J.] to provide her with a stable nurturing environment from 

another home and family. 

(Docket No. 44, p. 7). 
Case No. 3-15-12 

-16- 

{¶38} It is clear that there was no interaction or interrelationship between 

Schultow and A.J. At the time of the permanent custody hearing, Schultow had 

never met A.J.; the only caregivers in A.J.’s life were her foster parents who she 

knew “as her parents.” (Docket No. 43, p. 2). For these reasons, A.J.’s guardian 

ad litem recommended that permanent custody be granted to CCDJFS. 

{¶39} In her brief, Brittany argues that permanency could have been 

achieved by placing A.J. with Jodi. Specifically, Brittany argues that CCDJFS did 

not investigate whether Jodi’s prior charge of child endangering adversely 

impacted her ability to care for A.J. In response, CCDJFS argues that because 

Jodi was convicted of child endangering, she could not be approved as a relative 

caregiver pursuant to Ohio Adm.Code 5101:2-42-18(I). 

{¶40} In considering whether a relative can be approved as a minor child’s 

caregiver, a children services agency is guided by the requirements set forth in 

Ohio Adm.Code 5101:2-42-18. Under this section, a minor child generally cannot 

be placed in a home where any of its adult occupants have been “convicted of or 

pleaded guilty to” certain enumerated offenses, including child endangerment. 

(Emphasis added.) Ohio Adm.Code 5101:2-42-18(I). Additionally, where the 

victim of the offense is under the age of 18, the relative is barred indefinitely. 

{¶41} Here, Bauer testified that Jodi was charged with child endangering in 

January 2002 and that her case was “ultimately closed”; however, the record is 
Case No. 3-15-12 

-17- 

silent as to whether Jodi was convicted of, or pleaded guilty to, the offense. May 

26, 2015 Hrg., p. 22. 

{¶42} Nonetheless, Bauer testified that Jodi’s charge of child 

endangerment, as well as her lack of income, formed the basis for Jodi’s rejection 

as a relative caregiver. Although we cannot say that Jodi was automatically 

excluded by application of Ohio Adm.Code 5101:2-42-18(I), Bauer’s testimony 

established an appropriate basis for rejecting Jodi as a relative caregiver. 

{¶43} With no available relative caregivers, nine-month-old A.J.’s need for 

permanency could only be achieved through CCDJFS or Schultow, and at the time 

of the permanent custody hearing, Schultow’s whereabouts were unknown. 

{¶44} Based on the foregoing, we find that there was competent, credible 

evidence to support the trial court’s finding that it was in A.J.’s best interest to 

grant permanent custody to CCDJFS. 

{¶45} Next, we consider whether there was competent, credible evidence to 

establish that A.J. could not be placed with either parent within a reasonable time 

or should not be placed with either parent pursuant to R.C. 2151.414. 

{¶46} Again, in making this determination, R.C. 2151.414(E) provides that 

[i]f the court determines, by clear and convincing evidence * * * that 

one or more of the following exist as to each of the child’s parents, 

the court shall enter a finding that the child cannot be placed with 

either parent within a reasonable time or should not be placed with 

either parent: 
Case No. 3-15-12 

-18- 

(1) Following the placement of the child outside the child’s home * 

* * the parent has failed continuously and repeatedly to 

substantially remedy the conditions causing the child to be 

placed outside the child's home; 

* * * 

(4) The parent has demonstrated a lack of commitment toward the 

child by failing to regularly support, visit, or communicate with 

the child when able to do so, or by other actions showing an 

unwillingness to provide an adequate permanent home for the 

child; 

* * * 

(12) The parent is incarcerated at the time of the filing of the motion 

for permanent custody or the dispositional hearing of the child 

and will not be available to care for the child for at least 

eighteen months after the filing of the motion for permanent 

custody or the dispositional hearing. 

* * * 

(16) Any other factor the court considers relevant. 

(Emphasis added.) 

{¶47} Pursuant to R.C. 2151.414(E)(4), the trial court found that Schultow 

demonstrated a lack of commitment toward A.J. As noted above, at the time of 

the hearing, Schultow had never met A.J., despite the fact that his case plan 

allowed and encouraged supervised visits. Although visits with A.J. were 

scheduled, Schultow never attended. 

{¶48} Similarly, although given both written and verbal notice, Schultow 

did not attend the permanent custody hearing (or any other custody-related 
Case No. 3-15-12 

-19- 

proceeding) or offer an explanation as to his absence. Again, at the time of the 

permanent custody hearing, Schultow’s whereabouts were unknown. 

{¶49} In her brief, Brittany argues that Schultow’s limited financial 

resources prevented him from traveling to Ohio to visit with A.J. and attend 

custody-related proceedings. However, Brittany’s argument is purely speculative; 

the record is devoid of any indication that Schultow cited a lack of funds as a 

reason for not attending visits with A.J. or custody-related court proceedings. For 

example, in its entry adjudicating A.J. a neglected child, the trial court noted that 

“the reputed father likewise failed to appear due to a tooth abscess.” (Docket No. 

12, p. 2). Notably, even if Brittany’s claim were true, there was nothing 

preventing Schultow from demonstrating a commitment to A.J. from 

Pennsylvania. See In re Willis, 3d Allen No. 1-02-17, 2002-Ohio-4942, ¶ 30 

(recognizing active involvement where father continually wrote letters to child’s 

foster parents and the children services agency inquiring as to child’s well-being 

and the progression of the child-custody case). 

{¶50} With regard to the number of factors required to be found under R.C. 

2151.414(E), “the trial court only needs to find one of the factors listed in (E) as to 

each parent before it ‘shall’ render a finding that a child cannot be placed with 

either parent.” In re Matthews, 2008–Ohio–276 at ¶ 26, quoting R.C. 

2151.414(E). Based on the foregoing, we find that there is competent, credible 
Case No. 3-15-12 

-20- 

evidence that Schultow demonstrated a lack of commitment toward A.J. pursuant 

to R.C. 2151.414(E)(4), and therefore, the trial court properly concluded that A.J. 

could not or should not be placed with Schultow. 

{¶51} Accordingly, we overrule Brittany’s second assignment of error. 

Assignment of Error No. I 

{¶52} In her first assignment of error, Brittany argues that CCDJFS failed 

to make a good faith effort to reunify Schultow and A.J. We disagree. 

{¶53} There are two instances in which the Revised Code imposes a duty 

on the part of a children services agency to make reasonable efforts to reunite a 

parent with their child where the agency has removed the child from the home. 

See R.C. 2151.419(A)(1); 2151.414(E)(1). Neither instance applies in this case. 

{¶54} First, R.C. 2151.419(A)(1) provides that 

at any hearing held pursuant to section 2151.28, division (E) of 

section 2151.31, or section 2151.314, 2151.33, or 2151.353 of the 

Revised Code at which the court removes a child from the child’s 

home or continues the removal of a child from the child’s home the 

court shall determine whether the public children services agency * 

* * has made reasonable efforts to prevent the removal of the child 

from the child’s home, to eliminate the continued removal of the 

child from the child’s home, or to make it possible for the child to 

return safely home. 

(Emphasis added.) 

{¶55} Here, the permanent custody hearing was not held pursuant to any of 

the enumerated sections in R.C. 2151.419(A)(1). Instead, the permanent custody 
Case No. 3-15-12 

-21- 

hearing was held pursuant to R.C. 2151.414 based on a motion made under R.C. 

2151.413(A). By its plain terms, R.C. 2151.419(A) does not apply. In re Bradley, 

3d Dist. Allen No. 1-05-56, 2006-Ohio-2367, ¶ 62; In re Samples, 7th Dist. 

Jefferson, No. 05 JE 39, 2006-Ohio-1056, ¶ 75 (“[W]e hereby hold that R.C. 

2151.419(A)'s requirement of reasonable efforts to reunify is not applicable to 

orders granting permanent custody upon motions filed under R.C. 2151.413.”); In 

re S.S., 10th Dist. Franklin No. 05AP-204, 2005-Ohio-4282, ¶ 16-17 (“[B]ecause 

R.C. 2151.419 does not apply to R.C. 2151.413 or to hearings held pursuant to 

R.C. 2151.414, the ‘reasonable efforts’ requirement of R.C. 2151.419(A) is 

inapposite to the facts and circumstances of this case.”). 

{¶56} Second, R.C. 2151.414(E)(1) requires a finding that the minor child 

could not or should not be placed with a parent when 

Following the placement of the child outside the child’s home and 

notwithstanding reasonable case planning and diligent efforts by the 

agency to assist the parents to remedy the problems that initially 

caused the child to be placed outside the home, the parent has failed 

continuously and repeatedly to substantially remedy the conditions 

causing the child to be placed outside the child's home. 

(Emphasis added.) 

{¶57} In its entry, the trial court made a finding under R.C. 2151.414(E)(1), 

which necessarily required that CCDJFS have made “diligent efforts” towards 

reunification. However, whether CCDJFS made diligent efforts towards 

reunification pursuant to R.C. 2151.414(E)(4) is immaterial because there was 
Case No. 3-15-12 

-22- 

competent, credible evidence supporting the trial court’s determination under R.C. 

2151.414(E)(4). See, e.g., In re Bradley at ¶ 59. Again, “the trial court only needs 

to find one of the factors listed in (E) as to each parent before it ‘shall’ render a 

finding that a child cannot be placed with either parent.” In re Matthews, 2008–

Ohio–276 at ¶ 26, quoting R.C. 2151.414(E). Because the trial court’s finding 

under R.C. 2151.414(E)(4) was appropriate, we need not consider whether 

CCDJFS complied with R.C. 2151.414(E)(1) and its diligent efforts requirement. 

{¶58} Accordingly, we overrule Brittany’s first assignment of error. 

{¶59} Having found no error prejudicial to Brittany, in the particulars 

assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and WILLAMOWSKI, J., concur. 

/jlr