[Cite as In re K.B., 2014-Ohio-3654.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

IN RE: : 

 CASE NOS. CA2014-02-042 

 K.B., et al. : CA2014-02-043 

 CA2014-02-044 

 : 

 O P I N I O N

 : 8/20/2014 

 : 

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. JN2010-0118 

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for appellant 

Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315 

High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Children Services 

Thomas Hodges, 708 Walnut Street, Suite 600, Cincinnati, Ohio 45202, for K.G. 

Dawn Garrett, 9453 Waterstone Boulevard, Cincinnati, Ohio 45249, for M.W. 

John Ford, Legal Aid Society of Southwest Ohio, LLC, 10 Journal Square, Third Floor, 

Hamilton, Ohio 45011, Guardian Ad Litem for K.B. 

Amy Ashcraft, 240 East State Street, Trenton, Ohio 45067, Guardian Ad Litem for K.K. and 

Z.B. 

 M. POWELL, J.

{¶ 1} Appellant, the biological mother of three children, appeals a decision of the 

Butler County Juvenile Court granting legal custody of one child to his father, legal custody of 
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another child to his grandmother, and permanent custody of the third child to a children 

services agency. 

{¶ 2} Butler County Department of Job and Family Services filed a complaint on 

March 30, 2010 alleging that appellant's three children were neglected and dependent. At 

the time, appellant's two sons, Z.B. and K.B., were six and eleven years old respectively, and 

her daughter, K.K., was two years old. The agency was granted temporary custody and the 

children were placed in a foster home. 

{¶ 3} The complaint was filed after the agency received a report that K.K. was 

hospitalized at Shriner's Hospital with severe burns after pulling a pot off the stove. The 

report stated that appellant was belligerent and threatening toward hospital staff, telling a 

social worker that she would be killed the next day. The report also indicated that appellant 

threatened to take the child out of the hospital against medical advice and that the child's 

condition was deteriorating and she would most likely need surgery. The report further stated 

that appellant was taken to University Hospital for a psychological evaluation due to her 

behavior. 

{¶ 4} According to the complaint, when appellant returned from University Hospital, 

she was asked to sign a contract agreeing that she would not be aggressive towards 

Shriner's hospital staff or security. Appellant refused to sign the document. Appellant's 

behavior escalated and she was arrested for menacing and disorderly conduct. The 

complaint also alleged that appellant had an extensive history of criminal charges dating from 

2004 to present. This history included four menacing charges, two charges for disorderly 

conduct, one assault charge, and one charge of domestic violence. 

{¶ 5} The complaint further alleged that appellant had previous involvement with 

Children Services and a history of belligerent, uncooperative, combative and threatening 
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attitude toward agency staff. The complaint stated that the agency had received reports in 

2009 that appellant was homeless and had threatened to drown herself and her children. 

The complaint indicated that appellant has a history of bipolar disorder and was not 

compliant with treatment or medications. 

{¶ 6} The children were adjudicated neglected and dependent and temporary 

custody with the agency was continued. A case plan was prepared with reunification as the 

goal. Over the next year, appellant made some measure of progress. Visitation progressed 

from being supervised at the agency to unsupervised overnight and weekend visits. At a 

review hearing in late May 2011, K.K. was placed in the temporary custody of her mother, 

with the boys returning to their mother's custody at the end of the school year in early June. 

The court indicated it would consider returning legal custody to the mother at the August 

review hearing if things continued to progress. 

{¶ 7} At the August 2011 review hearing, some concern was expressed that appellant 

was homeless and living with her sister after being evicted for failing to pay rent, although 

appellant was to move into a new home soon. Concern was also expressed that during the 

summer, the children were living with or staying with other people for long periods of time, 

such as K.B. living in Alabama with his father and K.B. staying for weeks with his paternal 

grandmother. The court further expressed concern because appellant had prematurely 

stopped going to counseling, the children were no longer in therapy, and appellant had been 

arrested after a domestic violence incident with her brother. 

{¶ 8} In early December 2011, appellant was charged with domestic violence for an 

incident involving K.K., who had a large bump on her head. Consequently, the children were 

placed back in the temporary custody of the agency and placed in foster homes. In February 

2012, Z.B. was placed in the home of his paternal grandmother. On April 13, 2012, the 
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agency filed a motion requesting permanent custody of K.B. and K.K. and requesting that 

legal custody of Z.B. be granted to his paternal grandmother. 

{¶ 9} A hearing on the motions began on October 17, 2012 and continued over 

several dates, finally concluding on March 6, 2013. The magistrate issued decisions on 

August 2, 2013, placing Z.B. in the legal custody of his paternal grandmother, placing K.B. in 

the legal custody of his father, and granting permanent custody of K.K. to the agency. After a 

hearing, the trial court overruled objections to the magistrate's decision. 

{¶ 10} Appellant now appeals the trial court's decisions regarding custody of her three 

children. She raises the following four assignments of error for our review: 

{¶ 11} THE TRIAL COURT'S DECISION AND ORDER GRANTING PERMANNET 

CUSTODY OF K.K. TO THE BUTLER COUNTY DEPARTMENT OF JOB AND FAMILY 

SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶ 12} THE TRIAL COURT'S DECISION AND ORDER GRANTING LEGAL 

CUSTODY OF K.B. TO FATHER WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

{¶ 13} THE TRIAL COURT'S DECISION AND ORDER GRANTING LEGAL 

CUSTODY OF Z.B. TO PATERNAL GRANDMOTHER WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

{¶ 14} THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE 

PREJUDICE OF MOTHER IN ALLOWING THE ADMISSION OF HEARSAY EVIDENCE. 

Permanent Custody Hearing

{¶ 15} At the permanent custody hearing, agency caseworker Tara Eve testified that 

she had previously worked with the family in a voluntary case in 2008. She was the 

caseworker on the current case when it began in April 2010 until September 2011. Eve 
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indicated that she was concerned with the family being in an environment where appellant 

could not control her anger and frustration. The goal was for appellant to learn coping skills 

to control her anger through counseling and therapeutic services and to not present her 

anger and frustration in front of the children. 

{¶ 16} The caseworker testified that although parents can become angry and upset at 

agency workers when their children are removed, appellant's behavior escalated to a point 

where there was considerable derogatory profanity and the caseworker felt threatened. The 

caseworker testified that appellant did not understand why her children were removed and 

the caseworker tried to explain to appellant that her threatening behavior at the hospital and 

appellant's instability were the reason for the removal. The caseworker testified that after a 

therapeutic session to discuss the case and throughout her continued involvement with 

appellant, things between them improved. 

{¶ 17} The caseworker indicated the agency received several requests to perform 

home studies for possible family members as alternative placements for the children, but 

none of these studies were completed due to the relatives withdrawing from the process. 

She indicated there was some delay in getting the children into counseling, but they started 

attending prior to reunification with appellant. 

{¶ 18} The caseworker testified that appellant has a history of instability regarding 

housing and there were inconsistent stories regarding how K.K. was burned. She discussed 

the case plan requirements and stated that although appellant did an adult diagnostic 

assessment of function with Dr. Onady, appellant refused to do a psychological evaluation 

and that a parenting class was not part of the case plan because appellant was previously 

unsuccessful in the Development of Living Skills program. She indicated visits initially went 

poorly because appellant was focused on the caseworker and had discussions in front of the 
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children, but the visits improved over time. She testified that although there were still 

concerns, she was in favor of reunification in May 2011. 

{¶ 19} During the period of reunification, the caseworker met with the family frequently. 

She indicated that during the summer of 2011, appellant lost her housing due to eviction and 

was living with her sister. She also testified that during the course of the case, appellant was 

incarcerated several times, including an arrest for a domestic violence incident with her 

brother. 

{¶ 20} Carla Day testified that she was the caseworker from August 2011 forward. 

She indicated that at the time she received the case, the children were in the temporary 

custody of appellant, although none of the children were physically living with appellant. The 

concerns at the time included housing and the need for the family to follow through with 

mental health treatment. The caseworker stated that appellant quit therapy for a while 

because she was overwhelmed. In addition, K.K. had been excluded from the therapeutic 

preschool program she was enrolled in because appellant failed to follow through with the 

paperwork and requirements. The caseworker testified that the children were removed from 

the home by the Middletown Police in December 2011 because of a concern that K.K. had 

been abused by appellant. 

{¶ 21} The relationship between the second caseworker and appellant deteriorated 

and in January 2012, appellant said she no longer trusted the caseworker and did not want to 

meet with her unless her attorney was present. The caseworker testified that she observed 

appellant having difficulty getting along with several members of the agency and displaying 

angry, aggressive, rude and demeaning behavior. She described an incident in which she 

was transporting appellant and when appellant got angry, she threw a glass bottle at her 

nephew in the car. After the children were removed the second time, family therapy was 
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recommended. Appellant started family therapy, but recommendations were made that 

appellant not attend until her own mental health stability would allow her to do so. 

{¶ 22} Day stated that the agency filed the motions for permanent and legal custody 

because of the amount of time the children had spent in foster care and because there were 

no further case plan services the agency could offer appellant that would increase the 

likelihood of safety for the children. The caseworker indicated she had no concerns 

regarding Z.B.'s placement with his paternal grandmother. She stated that in her limited 

contacts with K.B.'s father, he presented as a responsible parent and she would likely 

support placement with him if the Alabama home study were approved. The caseworker 

further indicated that for K.K. there were no possible alternative placements. 

{¶ 23} The caseworker stated that her current concerns regarding reunification now 

were the instability of housing and that appellant's behavior and aggression had not subsided 

in any way that would indicate the children would be safe over an extended period of time. 

There was also concern that appellant had multiple arrests, had failed to follow through with 

the case plan when she had the children, and current visits with the children were not going 

well. The caseworker testified that appellant was now involved in counseling, but indicated 

that the counselor's focus was on appellant, while the agency's focus was on safe parenting 

for the children. 

{¶ 24} Rhonda Sneed, an agency worker who supervised visitations when the children 

were first removed testified that visits were "up and down" and depended on appellant's 

mood, but she was usually able to settle appellant down and visits were productive. She 

indicated appellant's interaction with the first caseworker was "rocky" but got better and 

appellant's interaction with staff depended on her mood. 

{¶ 25} Robin Hostetler, a therapist who began conducting in family therapy in February 
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2012, after the children were removed the second time, testified that her goal was to work 

towards reunification and help the family with relationships and communication. She said 

she met with the family for one hour a week and then supervised visitation for an hour. She 

testified that at the beginning, she thought she had a pretty good relationship with appellant, 

but appellant became more volatile and combative and their relationship went downhill as 

time passed. The therapist testified that although she gave feedback when appellant was 

doing things well, problems arose any time she made suggestions regarding parenting skills 

or concerns over how the children were behaving. She indicated appellant would respond 

with silence, or an attitude with rolling her eyes, and that appellant often had abrasive 

responses to the emotions of the children. 

{¶ 26} Hostetler testified progress was inconsistent. She indicated appellant's moods 

are flexible and not stable at all, and the children are guarded in their interactions with 

appellant. Her concerns involved appellant's instability and the therapist explained that while 

the children love their mother, they are confused and fearful of her behavior. She stated that 

visits where appellant's attorney and GAL attended went "uncharacteristically well" and 

appellant was not as aggressive, and had more careful, guarded behaviors. 

{¶ 27} The therapist indicated that appellant's behavior led to her recommendation 

that appellant stop attending the family therapy because the therapist's relationship with 

appellant was becoming more harmful to the children. She indicated because of the issues 

involved, she felt a new therapist would be beneficial for the family. 

{¶ 28} The second family therapist, Mary Oenbrink, also testified and explained that 

she performs family therapy with the children and supervises visits. She indicated that the 

therapeutic visits were needed because visits were unpredictable and appellant needed to be 

supervised and given feedback on her interactions with the children. She stated that she 
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initially would give appellant feedback on visits prior to her visitation time, but appellant would 

become frustrated before the visit and have difficulty with the children. She stated that she 

now gives the information to appellant's therapist so she can process it and there is less 

likelihood appellant will become angry and frustrated before the visit. She indicated she has 

seen appellant verbally aggressive with the children and the children do not feel safe being 

able to express themselves to appellant. She indicated when she began family therapy the 

children were resistant and were concerned that what they said would get back to appellant. 

{¶ 29} Oenbrink indicated that her biggest concern with the visits was appellant's 

unpredictability and that appellant becomes angry about minor things like they were major 

incidents. She also expressed concern regarding some of appellant's conversations with 

K.K. and stated that appellant "stresses the children out" when visits are volatile. She 

explained that appellant will get angry and then "cold" in her reactions with the children. 

{¶ 30} Kristin Hoffman, a licensed social worker who is the program director at the 

visitation center where visitations took place after the second removal, testified that she 

covered one of the family's visits personally, observed other visits and has been asked to 

intervene in visits. She described a conflict with the case manager in February 2012 in which 

a deputy was involved and she tried to deescalate the situation. 

{¶ 31} Hoffman indicated a new therapist was assigned because of consistent 

complaints from appellant. She testified she has seen "physical advancement" from 

appellant towards the caseworker, but no contact. She indicated that appellant has made 

some progress, but still struggles significantly with control of her emotions. Hoffman 

explained that appellant is not currently in family therapy because she has not reached the 

point of emotional stability needed to reengage in family therapy. 

{¶ 32} Dr. Alice Onady, a psychiatrist at Community Behavioral Health, testified that 
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she began seeing appellant in October 2010. Appellant was initially seeing another 

psychiatrist at the office, but because of a disagreement, Dr. Onady agreed to see appellant. 

Appellant was diagnosed as bi-polar with a paranoid personality disorder. Dr. Onady 

indicated this diagnosis includes mood swings, angry outbursts, conflicts with others, 

depression, agitation and poor coping skills. Dr. Onady indicated appellant meets with an 

individual therapist and then met with appellant every two to three months for medication 

management. 

{¶ 33} Dr. Onady indicated that on more than one occasion, appellant had problems 

and conflicts with the office staff. Dr. Onady testified that she discharged appellant from 

treatment because of several situations in which appellant was inappropriate with her staff. 

When the psychiatrist attempted to discuss appellant's behavior with her on the day of an 

incident, and told appellant she could not work with her if she were disruptive, appellant said 

she did not want to continue treatment. She indicated that while she deals with patients who 

have mental health problems, it is not common to terminate patients in this manner. 

{¶ 34} Dr. Onady testified appellant made progress during treatment, and overall there 

was some improvement, but it was not consistent. She indicated some concern with 

appellant's ability to parent as the psychiatrist indicated appellant needs to be able to control 

her anger. 

{¶ 35} Corinne Pearson, a therapist at Access Counseling, indicated that she first met 

with appellant in August 2010 and prepared a treatment plan that focuses on the negative 

consequences of anger. Pearson has been working with appellant to facilitate impulse 

control thought modeling and increasing sensitivity to consequences. Pearson indicated that 

appellant struggled through 2011 with minimal progress, but has made dramatic progress 

since May 2012. The therapist stated that appellant still has "much to do." When 
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questioned, she indicated that it was difficult to estimate, but reunification may be possible in 

six months with supports in place. 

{¶ 36} Deanna Proctor, the CEO of Access Counseling, testified that she has not had 

any problems with appellant and has seen growth over the past year. She indicated 

appellant now processes things before reacting. Debra Cotter, the clinical director at Access, 

also indicated that she first met appellant in 2010 when she assigned Pearson as appellant's 

therapist and that she has seen improvement in appellant. She indicated appellant does a 

better job at managing her emotional behavior. 

{¶ 37} Theresa Paul, a mental health therapist, testified that she was approached by 

Corrine Pierson, appellant's therapist, to provide supplemental material on anger 

management. She testified that she presented tools and skills to appellant to use and 

worked with appellant to examine her thoughts, feelings and behaviors and how they are 

connected. Paul indicated that appellant was receptive and understood the material. She 

indicated that appellant has the tools to manage her anger, but cannot predict how appellant 

will implement them. 

{¶ 38} Donna Vondrell, the case manager for K.K.'s preschool, testified that she met 

with appellant about seven months prior to her testimony, and again about a month prior. In 

the first meeting, she indicated appellant became irate with people and felt that they were not 

"on her side." The case manager indicated she saw a great difference in how appellant 

handled herself at the second meeting and was able to "hold her tongue." She indicated that 

during the second meeting, she could tell appellant wanted to say something, but knew it was 

not in her best interest. 

{¶ 39} Nancy Baker, the director of K.K.'s preschool, testified that she is responsible 

for the operation of the program and the staff. She explained that the therapeutic preschool 
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addresses both academic studies and social-emotional skills. The preschool is working with 

K.K. on individual therapy to address her anger and aggressing issues and to develop 

effective coping skills. She indicated that K.K. was excluded from the program for a few 

weeks at the end of November 2011 because she was missing a physical examination and 

shot record which appellant failed to submit. When K.K. was placed back into foster care, 

her caregiver submitted the documentation and K.K. resumed preschool. 

{¶ 40} Baker also testified that she scored assessments taken by K.K. and appellant in 

order to determine therapy needs. K.K. scored in the clinical range on the anger and 

aggression scale and on the disassociation scale. Appellant scored on the high-risk indexes 

in the areas of expectations of children scale, parental empathy towards children's needs 

scale and use of corporal punishment scale. 

{¶ 41} Jennifer Minnick, a professional clinical counselor at K.K.'s therapeutic 

preschool program, indicated that she has been working with the child to improve and 

increase self-expression, specifically anger-related behavior. She indicated that K.K. has 

anger issues and does not have good coping skills. The child responds by screaming, crying, 

hitting, kicking and punching when she does not get her way or is disappointed. 

{¶ 42} Minnick indicated she is working with the child to develop safer, more effective 

ways to process her feelings. The counselor indicated that K.K.'s behavior changes 

negatively around visits. The child expresses that she wants visits to go well , but she is 

worried about what is going to happen. The child worries about whether something the 

children say in the visit will make appellant angry. The counselor indicated that K.K. requires 

significant understanding and patience, along with a good routine and schedule. She 

indicated being with a caregiver who responds with volatile behavior would exacerbate the 

situation. 
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{¶ 43} Middletown Police Officer Gary Bender testified that on December 18, 2012, he 

received a disturbance call at one o'clock in the morning. The police officer found appellant 

involved in a verbal argument with another person and arrested appellant on a bench 

warrant. 

{¶ 44} Appellant testified that she works two part-time jobs and is trying to receive 

Social Security disability benefits because of her mental health problems. She stated that 

she doesn't trust anyone at Children's Services and that the people who are saying her 

children are stressed are lying because they do not want appellant to have her children. She 

stated that if her children are upset at visits, it is because they want to come home. She 

denied that her paranoia has anything to do with how she views Children's Services. 

{¶ 45} Several witnesses testified on behalf of appellant, including her sister, other 

family members and acquaintances. The witnesses indicated appellant is a good mother, 

loves her children and they have not seen her physically touch the children. Some of the 

witnesses indicated appellant is not angry unless she is pushed or provoked. 

{¶ 46} The foster parent for K.K. testified that he had all three children in his home 

after the first removal and maintained a relationship with the children after they were reunited 

with their mother. He indicated that when he initially took the children home on reunification, 

appellant did not appear prepared to parent them. He took food and groceries to appellant's 

house and helped with the children a few times while encouraging and supporting appellant. 

After the children were removed the second time, they went to another foster home for a 

time, then K.K. and K.B. were placed back in his home, although only K.B. is currently in his 

home. He indicated that K.B. "shuts down" after visits with his mother and takes a day or 

two to bounce back. 

{¶ 47} Z.B.'s paternal grandmother testified that she has been his custodian since 
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January 2012 and that he stayed with her most of the summer of 2011. She indicated that 

Z.B. becomes upset after visits and it takes days to reassure him. She stated that she is 

willing to raise Z.B. until he is 18. She indicated that she would supervise visits with his 

mother and/or father and would follow all court orders if the child were in her legal custody. 

{¶ 48} K.B.'s father testified at the hearing that he graduated from high school and 

attended one and one-half years of college. He stated that he first met K.B. in 2011 when 

the child came to stay with him in Alabama for the summer. He testified that he has been 

working full time since December 2010 and that his wife works as a surgical technician at a 

hospital. He testified that he has criminal convictions for possession of drugs in 2004 and 

was in federal prison for possession of a firearm until October 2010. K.B.'s father testified 

that he coaches football, basketball and baseball in the small town where he lives. He 

testified that he would be willing to take legal custody of K.B. and provided a letter signed by 

several community members expressing support for him. 

Permanent Custody of K.K.

{¶ 49} Before a natural parent's constitutionally protected liberty interest in the care 

and custody of her child may be terminated, the state is required to prove by clear and 

convincing evidence that the statutory standards for permanent custody have been met. 

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review 

of a juvenile court's decision granting permanent custody is limited to whether sufficient 

credible evidence exists to support the juvenile court's determination. In re Starkey, 150 

Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding 

by the juvenile court that the evidence was clear and convincing only if there is a sufficient 

conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th 

Dist.). 
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{¶ 50} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and 

award permanent custody to a children services agency if it makes findings pursuant to a 

two-part test. First, the court must find that the grant of permanent custody to the agency is 

in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the 

court must find that any of the following apply: the child is abandoned; the child is orphaned; 

the child has been in the temporary custody of the agency for at least 12 months of a 

consecutive 22-month period; or where the preceding three factors do not apply, the child 

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

either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Warren Nos. 

CA2009-10-139, CA2009-11-146, 2010-Ohio-1122, ¶ 22. 

{¶ 51} The juvenile court found by clear and convincing evidence, and appellant does 

not dispute, that K.K. has been in the temporary custody of the agency for more than 12 

months of a consecutive 22-month period as of the date the agency filed the permanent 

custody motion. However, appellant does dispute the juvenile court's finding that granting 

permanent custody of the children to the agency is in the child's best interest. 

{¶ 52} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a 

permanent custody hearing: 

[T]he court shall consider all relevant factors, including, but not 

limited to the following: 

(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; 

(c) The custodial history of the child, including whether the child 

has been in the temporary custody of one or more public children 
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services agencies or private child placing agencies for twelve or 

more months of a consecutive twenty-two month period * * *; 

(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. 

{¶ 53} With respect to R.C. 2151.414 (D)(1)(a), the juvenile court found that K.K. and 

appellant love each other and have a bond and that K.K. enjoys seeing appellant and her 

brothers at visitations. The court also found that the guardian ad litem reported that K.K. has 

behavioral issues in the days surrounding visits and this behavior was confirmed by K.K.'s 

therapist. The court also noted there was testimony that while K.K. is excited about visits, 

she also worries because sometimes her statements anger appellant and K.K. has 

expressed fear toward her. The court also indicated that during the period appellant was 

participating in family therapy with the children, the therapists testified that K.K. did not want 

to share her feelings based on appellant's intimidating demeanor in the sessions. 

{¶ 54} The court also found that K.K. has been placed in several foster homes during 

the case, and in September 2012 moved to her current foster home where she has 

remained. The court found that the guardian ad litem reported K.K. is very comfortable in the 

home and with her foster mother. The court also found that there was no evidence K.K. has 

ever had contact with her father. During the case, three men were listed as K.K.'s father and 

eventually her biological father was identified through DNA testing. K.K.'s father failed to 

appear at any of the hearings or to contact the agency about his daughter. 

{¶ 55} With respect to R.C. 2151.414(D)(1)(b), the juvenile court indicated that no in 

camera interview with K.K. was requested or performed. The court found there was evidence 

that K.K. has stated that she would like to live with appellant. The court also found that K.K.'s 
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guardian ad litem recommended that K.K. be placed in the permanent custody of the agency. 

{¶ 56} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that K.K. has 

been in the temporary custody of the agency for more than 12 of 22 months. The court 

indicated that as of the date of the last hearing on March 6, 2013, K.K. had been residing in 

foster care for approximately 30 months. 

{¶ 57} With respect to R.C. 2151.414 (D)(1)(d), the juvenile court found that it is clear 

that K.K. is in need of a legally secure placement as she has resided in foster care for 

approximately 30 months during the case. The court further found that the agency presented 

clear and convincing evidence that appellant is not in a position to assume her parental 

responsibilities at this time or in the near future. The court found appellant has been 

diagnosed with bi-polar disorder, personality disorder and post-traumatic stress disorder. 

{¶ 58} The court determined that "[t]hroughout this case, the chief concern of the 

agency and this court has been mother's inability to consistently manage her explosive anger 

and the intimidating behavior that accompanies the anger." The court noted that the case 

was initiated because of appellant's behavior at the hospital after K.K. suffered burns in 

March 2010. Although the children were placed back in appellant's temporary custody, they 

were removed a second time in December 2011 due to concerns that appellant had 

physically and emotionally abused K.K. 

{¶ 59} The court found that throughout the case, the evidence demonstrated that 

appellant has a volatile temper. The court reviewed angry episodes with many of the 

therapists, police officers and caseworkers. The court also noted that Dr. Onady accepted 

appellant as a patient after a disagreement with another doctor, but appellant was then 

terminated from Dr. Onady's care due to abusive treatment of the office staff. The court 

further noted that both family therapists testified that appellant had angry and combative 
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behavior which led to their decision to terminate her from family therapy sessions. 

{¶ 60} The court indicated that appellant's therapist testified at length that she has 

made some improvements in her ability to use anger management techniques she has 

learned in therapy. The court concluded, however, that it was not convinced based on the 

three years the case was pending, that appellant has demonstrated a sufficient ability to curb 

her volatility on a regular basis. The court noted that it was not until mid-2012, after the case 

was already over two years old, that appellant finally began to exhibit some progress in her 

anger management. The court stated that during appellant's testimony, "she virtually 

seethed with anger against BCDJFS, squarely blaming her predicament on the caseworkers 

and agency's supervisors." 

{¶ 61} The court concluded that appellant took little responsibility for her own actions 

and how those actions have caused the children to languish in foster care or with relatives. 

The court found that appellant "continues to argue that society in general is to blame for her 

problems, despite all of the help that she has been provided by BCDJFS and the case plan 

providers, including her own therapist and guardian ad litem." 

{¶ 62} The court found that based on reviewing all of the evidence, it was not 

convinced the children would be safe from further emotional and physical abuse if placed 

back in appellant's custody. The court reviewed the testimony of the therapists involved in 

the case and found that appellant has not been receptive to any criticism or direction from the 

family therapists and has insisted that her own therapist and guardian ad litem be present at 

visits to keep her calm. The court found there were concerns about appellant's ability to 

handle her children in an emotionally sound manner if they were returned. In addition, the 

court found that appellant's therapist testified that because of K.K.'s own behavioral and 

emotional issues, she needs a caregiver capable of providing understanding, patience, 
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unconditional love and good routines to meet her needs. The court concluded that there are 

serious concerns about whether appellant is stable enough to meet her children's needs in a 

crisis in a calm, patient manner, when she is unable to attend visits without help and cannot 

engage in family therapy with her children. 

{¶ 63} The court also considered the fact that despite appellant's recent progress in 

anger management with her therapist, police were called in December 2012 because of a 

reported argument involving appellant. The court noted that on that date, appellant was 

arrested for an outstanding warrant and while the case has been pending, appellant was 

arrested several times, usually involving issues of anger and confrontation. Finally, the court 

found that although caseworkers testified they spoke with numerous persons, there are no 

other appropriate persons available to parent the child. Based on a review of the facts 

relevant to this factor, the court determined that a legally secure placement cannot be 

achieved for K.K. without a grant of permanent custody to the agency. 

{¶ 64} With regard to other best interest factors, the court found that K.K.'s father 

abandoned her based on the fact that he has had no contact with the child since the case 

began in March 2010. The court also reviewed the history of the case and determined that 

after 36 months, appellant failed to remedy the conditions that caused K.K. to be placed 

outside her home. Based on a review of all the factors, the court concluded that it was in 

K.K.'s best interest to be placed in the permanent custody of the agency. 

{¶ 65} On appeal, appellant raises issues regarding her progress in mental health 

treatment and other aspects of the case plan, her love and bond with the children, and the 

effect of granting permanent custody of K.K. on her relationship with her brothers, and she 

argues that she is making progress. She also disputes much of the testimony and attributes 

problems with children services to personality conflicts. 
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{¶ 66} Appellant's arguments on appeal largely center on differing views of appellant's 

progress and the manner of her interaction with persons involved, including the children. 

However, issues of credibility are for the trier of fact, not the appellate court, to determine. In 

re G.N., 170 Ohio App.3d 7, 2007-Ohio-126, ¶ 24 (12th Dist.). It is well-established that the 

juvenile court had the opportunity to view the witnesses and observe their demeanor, 

gestures and voice inflections, and use these observations in weighing the credibility of the 

testimony. In re B.J., 12th Dist. Butler No. CA2011-10-192, 2012-Ohio-3127, ¶ 20. Deferring 

to the trial court on matters of credibility is "crucial in a child custody case, where there may 

be much evidence in the parties' demeanor and attitude that does not translate to the record 

well." Davis v. Flickinger, 77 Ohio St.3d 415, 419 (1997).

{¶ 67} We have carefully reviewed the evidence in this case and find that the trial 

court's findings are supported by the record. The trial court considered and weighed the 

evidence in light of each of the factors, including the effect of granting permanent custody on 

the sibling relationship, and in a thorough decision made findings that are supported by the 

record. Appellant's first assignment of error is overruled. 

Legal Custody of K.B. and Z.B.

{¶ 68} In her second and third assignments of error, appellant argues that the trial 

court's decisions to award legal custody of K.B. to his father and to award legal custody of 

Z.B. to his paternal grandmother are against the manifest weight of the evidence. 

{¶ 69} Unlike permanent custody, legal custody does not terminate the parent-child 

relationship; rather the parent retains residual parental rights and responsibilities. In re M.A., 

12th Dist. Butler No. CA2011-02-030, 2012-Ohio-545, ¶ 16. When determining legal custody 

pursuant to an action involving an abused, neglected or dependent child, the paramount 

concern is the best interest of the child and the court should consider the totality of the 
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circumstances affecting the best interest of the child. Id. 

{¶ 70} An appellate court reviews a juvenile court's custody determination for an abuse 

of discretion. Id. at ¶ 1. An abuse of discretion implies that the trial court acted 

unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). The discretion afforded to a juvenile court in custody matters "should be accorded 

the utmost respect, given the nature of the proceeding and the impact the court's 

determination will have on the lives of the parties concerned. The knowledge a trial court 

gains through observing the witnesses and the parties in a custody proceeding cannot be 

conveyed to a reviewing court by a printed record." In re A. W.-G., 12th Dist. Butler No. 

CA2003-04-099, 2004-Ohio-2298, ¶ 6, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). 

{¶ 71} Accordingly, an appellate court will not reverse a judgment as being against the 

manifest weight where the "award of custody is supported by a substantial amount of credible 

and competent evidence." In re T.M., 12th Dist. Butler No. CA2007-01-019, 2007-Ohio-6034, 

¶ 28, citing Davis v. Flickinger, 77 Ohio St.3d 415 (1997).

{¶ 72} Appellant argues in her second assignment of error that the court abused its 

discretion in awarding legal custody of K.B. to his father because the child had little prior 

contact with his father, the Alabama home study was denied due to the father's criminal 

history and because K.B. will be separated from other family members due to the distance 

between Alabama and Ohio. 

{¶ 73} The trial court considered the best interest factors as they relate to K.B. and 

found that K.B. did not have a relationship with his father until the summer of 2011. The 

court found that the father testified that he did not learn of K.B.'s existence until a few years 

ago. The court indicated that during the case, the father was in prison part of the time, but 

during the summer of 2011, appellant sent K.B. to Alabama for several weeks to visit his 
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father. During this time, K.B. also met many of his paternal relatives who reside in the same 

area, including his father's other children. 

{¶ 74} The court also found that the father appeared in court on June 15, 2012 and 

began driving to Ohio to attend court hearings and also attended visits with K.B. at the 

agency. The court indicated that the father attended all subsequent hearings except one 

where the court excused his attendance due to vacation time issues. The court further found 

that the father would typically drive all night from Alabama to be present at hearings. The 

court found the father has been employed with the same company for over a year, has 

several children he supports and coaches football and basketball. The court also found that 

the father has numerous relatives living nearby to provide a support system. The court noted 

that the caseworker observed a visit and indicated that the two have a comfortable, warm 

relationship and the father is encouraging and supportive of the child. 

{¶ 75} The court continued by noting that the interstate home study on father was 

denied due to the father's criminal history and current probationary status. However, the 

court determined that the father was very open about his criminal history and the last 

conviction was in 2008 for possession of a firearm by a felon. In addition, K.B.'s current 

foster family was requesting that the child be placed in another foster home. The court also 

considered the guardian ad litem's recommendation that K.B. be placed in the legal custody 

of his father. The court also considered whether K.B. could be placed with appellant and for 

the same reasons as discussed above regarding K.K., found that K.B. could not be placed 

with appellant. 

{¶ 76} The court considered the evidence and the factors weighing against the father, 

but found that since his release from prison, the father appears to have achieved stability in 

his life. The court found that these facts, along with consideration of K.B.'s current age of 14 
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and the lack of any concerns during K.B.'s visit in 2011, weighed in favor of placing K.B. with 

his father. 

{¶ 77} After reviewing the record, we find no error in the trial court's decision to place 

K.B. in the legal custody of his father. Although there were some concerns based on the 

father's criminal history and the amount of prior contact, the court weighed these facts with 

the father's current stability, familial support system, and dedication to his son and 

determined it was in K.B.'s best interest to be placed with his father. The trial court's decision 

is not against the manifest weight of the evidence. Accordingly, appellant's second 

assignment of error is overruled. 

{¶ 78} In her third assignment of error, appellant argues that the court abused its 

discretion in awarding legal custody of Z.B. to his paternal grandmother because appellant 

was making progress in therapy. She essentially reiterates the same arguments in her first 

assignment of error, arguing that the evidence was conflicting regarding her behavior and 

that she has been actively involved in mental health treatment. 

{¶ 79} In the same manner as in K.K. and K.B.'s cases, the court considered whether 

Z.B. could be placed with appellant and found that he could not be placed with her within a 

reasonable time. The court indicated that Z.B.'s father was incarcerated for a period of time 

from 2011-2012 and since his release, the grandmother has supervised visits between Z.B. 

and his father. The court considered the guardian ad litem's report and recommendation that 

Z.B. be placed with his paternal grandmother. 

{¶ 80} The court indicated the grandmother has continued to meet the child's needs 

and provide a stable home for the child for over a year. She enrolled Z.B. in football and 

baseball. The grandmother helps Z.B. with his homework every day and the child achieves 

good grades and has made friends at school. The court also indicated that it considered the 
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in camera interview with the child. Based on consideration of all the facts, the trial court 

concluded that it was in Z.B.'s best interest to be placed in the legal custody of his 

grandmother. 

{¶ 81} After reviewing the record in this case, we find no error in the trial court's 

decision. For the reasons discussed above, the court did not err in finding Z.B. could not be 

placed with appellant. The grandmother has been providing a safe, stable home for the child 

for over a year where he is doing well. The guardian ad litem recommended that legal 

custody of the child be granted to the grandmother. The trial court's decision is not against 

the manifest weight of the evidence. Appellant's third assignment of error is overruled. 

Hearsay

{¶ 82} In her fourth assignment of error, appellant argues that the trial court erred in 

allowing hearsay evidence in the form of a report from K.K.'s preschool and the testimony of 

caseworker Carla Day. Appellant concedes that these issues were not raised in objections 

and are therefore subject to review for plain error. 

{¶ 83} Hearsay is inadmissible in hearings on motions for permanent custody. In re 

W.R., 12th Dist. Fayette No. CA2011-08-016, 2012-Ohio-382, ¶ 22. However, it is wellestablished that as the fact-finder, a trial court is presumed to have considered only properly 

admissible evidence unless the record affirmatively demonstrates otherwise. In re A.F., 12th 

Dist. Butler No. CA2011-12-233, 2012-Ohio-2958, ¶ 33. Therefore, the admission of hearsay 

evidence in cases involving the termination of parental rights, even if error, is not considered 

prejudicial unless it is shown that the judge relied on improper evidence in making his 

decision. In re C.J., 8th Dist. Cuyahoga No. 100532, 2014-Ohio-2403. 

{¶ 84} Appellant first argues that the trial court erred in admitting a report prepared by 

the director of K.K.'s preschool. She argues that the report included information from other 
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preschool workers and the director testified that she was asked to prepare the report for 

court. She argues that the information in the report included K.K.'s issues with anger and 

aggression and that the director testified extensively over objection about the content of the 

information. Appellant also argues that the court erred in allowing caseworker Carla Day to 

testify that the Middletown police believed that appellant physically abused K.K. in the 

December 2011 incident. 

{¶ 85} Appellant contends that the prejudicial effect of this information is "apparent" 

because the court indicated the paramount issue in the case was appellant's anger and 

children's reaction to the anger. She further contends that prejudice from the statement 

regarding Middletown police is apparent because the court indicated it was concerned about 

the children's safety and the only allegation of physical harm was from the December 2011 

incident. 

{¶ 86} Regardless of whether the evidence is hearsay, appellant fails to establish that 

she was prejudiced in any manner by either the preschool director's report or by the 

statement involving the Middletown police. In both instances, the evidence was presented in 

other form. 

{¶ 87} First, the evidence in the preschool director's report was corroborated by other 

witnesses who testified regarding matters in the report, including the director herself and 

K.K.'s therapist at the preschool. In addition, several witnesses testified regarding appellant 

and K.K.'s behavior. Accordingly, as there was other evidence of appellant's anger issues, 

and K.K.'s issues, appellant has not established that this report was the basis for the trial 

court's determinations regarding appellant's anger and K.K.'s emotional issues. In addition, 

when the court admitted the report, it indicated that it would consider the portions of the 

report regarding matters the director personally observed, but the court stated that the report 
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also included hearsay, which it would not consider. Given that the court clearly understood 

the report contained hearsay and stated it would not consider those portions of the report, 

appellant has not established any prejudice by its admission. 

{¶ 88} With regard to the statement regarding the Middletown Police Department, 

appellant has also failed to establish prejudice from this statement. The record contains 

several statements regarding the removal of the children in December 2011, and that 

appellant was charged with domestic violence following the incident. The nature of the 

injuries was the subject of a prior hearing before the court and the basis of an emergency 

shelter care hearing. In addition, appellant has not established that the court relied on this 

incident, and not appellant's propensity for anger and aggression in discussing concern for 

the physical and emotional safety of the children. 

{¶ 89} As appellant has not established she was prejudiced by the statements, 

appellant's fourth assignment of error is overruled. 

{¶ 90} Judgment affirmed 

 HENDRICKSON, P.J., and PIPER, J., concur.