[Cite as In re D.S.,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

IN THE MATTER OF: : OPINION

D.S., : DEPENDENT CHILD : CASE NOS. 2015-T-0062 and 2015-T-0063

Civil Appeals from the Trumbull County Court of Common Pleas, Juvenile Division, Case No. 2011 CH 00093.

Judgment: Affirmed.

Susan Porter Collins, Trumbull County Children Services Agency, 2282 Reeves Road, N.E., Warren, OH 44483 (For Plaintiff-Appellee, Trumbull County Children Services Board).

John H. Chaney, III, Daniel Daniluk, L.L.C., 1129 Niles-Cortland Road, S.E., Warren, OH 44484 (For Defendant-Appellant, Donald Sims, Sr.).

Gregory J. Wysin, 2037 Brady Lake Road, Kent, OH 44240 (For Defendant-Appellant, Lameka Hunt McClusky).

Giustina Chinchic, Law Office of Mark Finamore, 285 Seneca Avenue, N.E., Warren, OH 44481 (Guardian ad litem).

THOMAS R. WRIGHT, J.

{¶1} Appellants, Lameka Hunt McCluskey “mother” and Donald Sims, Sr.

“father,” are the biological parents of D.S. Mother and father separately appeal the decision of the Trumbull County Court of Common Pleas, Juvenile Division, that

permanently terminates their parental rights with respect to their son, D.S., and awards

his permanent custody to the Trumbull County Children Services Board (“TCCSB” or

“the agency”) for adoption planning and placement under R.C. 2151.414. We

consolidated their appeals. Appellants argue that the trial court’s decision was against

the manifest weight of the evidence; that the TCCSB did not engage in reasonable case

planning efforts or attempt to remedy mother’s problems that led to D.S.’s displacement;

and that the trial court erred in not granting father’s motion to continue the custody

hearing. For the following reasons, we affirm the decision of the juvenile court.

{¶2} On December 19, 2011 at approximately 10 p.m., the Warren City Police

Department removed five-year-old D.S. from the home of his paternal grandmother.

D.S. had been in the care and custody of his grandmother pursuant to a power of

attorney because his father was incarcerated since 2008 and his mother lived in

Georgia. Someone had notified the agency that D.S.’s grandmother had drug issues.

She consented to testing and tested positive for cocaine.

{¶3} Accordingly, the agency filed a complaint requesting temporary custody of

D.S., born August 21, 2006, or temporary custody to another appropriate person. The

agency likewise filed an emergency ex parte motion for temporary custody pending the

disposition of its complaint. D.S. was placed in emergency temporary custody on

December 20, 2011.

{¶4} The trial court ordered TCCSB to initiate a home study request of the

mother’s home in Georgia pursuant to the Interstate Compact for the Placement of

Children “ICPC.” She subsequently moved the court to return legal custody of D.S. to

2 her or to place him in her care. The trial court adjudicated D.S. a dependent child and

placed him in the temporary custody of TCCSB on February 17, 2012. During this

period, mother exercised weekly telephone visits with D.S. The phone visits were

temporarily suspended for two months as a result of her failure to follow the rules and

as a result of her threats toward TCCSB staff.

{¶5} Father was released from prison in August of 2012. His case plan was

modified and he had weekly visits with D.S.

{¶6} The agency moved for permanent custody of D.S. on April 1, 2013, which

was subsequently dismissed in light of father’s efforts toward reunification. The court

extended the agency’s temporary custody for six months and set the permanent

custody trial in June 2013. Although Georgia had received TCCSB’s second request for

placement of D.S. in Georgia, the TCCSB still never received an approval or denial of

mother’s home for placement.

{¶7} On October 17, 2013, the trial court granted mother and father’s motions

to continue the permanent custody hearing in order to allow them both to complete their

respective case plans. Mother was still residing in Georgia at the time and was visiting

with D.S. via weekly telephone calls. The court explained that it was still awaiting

affirmation from the State of Georgia relative to its request for its approval of the

mother’s home in Georgia before it could send D.S. to Georgia to live with her. Father

was present at the hearing and acknowledged what was required of him in order to

satisfy his son’s desire to be returned to him:

{¶8} “THE COURT: * * * you’ve signed, you’ve agreed – are you going to make

this happen for little [D.S.]? * * *

3 {¶9} “[FATHER]: Yes, sir.

{¶10} “THE COURT: Do you understand the consequences if you miss one of

these [case plan requirements]?

{¶11} “* * *

{¶12} “THE COURT: What’s the consequences?

{¶13} “[Father]: I can lose my son.”

{¶14} As of the December 3, 2013 hearing, the court noted that neither parent

was a viable option for placing D.S. Georgia had not approved mother’s home for

placement, and father’s home failed to satisfy the minimum standards. The agency

renewed its motion for permanent custody of D.S. in September 2013. Mother

subsequently relocated to Trumbull County, Ohio with her two other sons. TCCSB

created an amended case plan in response to her relocation.

{¶15} D.S. was the subject of an in camera interview on January 30, 2014 during

which it was explained to him that adoption was final and meant that he would not be

able to ever live with either his mom or dad again. Upon being asked if he wanted to be

adopted, he replied no. D.S. was also repeatedly asked if he would rather live with his

mom or his dad. He consistently answered that he wanted to live with his mom and

dad.

{¶16} The trial on the agency’s motion for termination of parental rights was

conducted on March 24, 2014, March 27, 2014, March 28, 2014, April 2, 2014, and

concluded on May 21, 2014. The following testimony was presented.

{¶17} Carmella Hill testified for the agency. Hill is employed by Coleman

Behavioral Health as an Independently Licensed Professional Counselor and acts as

4 the director of behavioral health for Coleman. Hill assessed D.S.’s mother in January of

2014 to determine what services, if any, she needed. Mother had recently moved back

to Ohio and wanted to secure housing, to continue her medication regimen, and get her

children returned to her. Mother had previously suffered and was treated for dysthymic

disorder, and Hill diagnosed her with depression. At the time of her assessment,

mother was homeless and living at a mission. Hill recommended counseling and

psychiatric services. Mother thereafter followed Hill’s recommendations and saw a

counselor, psychiatrist, and a nurse practitioner.

{¶18} Jennifer Sheridan also testified for the agency. She is the collection

supervisor for Scotchie & Associates where she conducts and oversees drug screens.

She attempted to screen father on four separate occasions. Once he tested positive for

marijuana and on the other three occasions, he refused to consent to the screening.

{¶19} Sheridan explained that they screened mother three times and she tested

negative two of the three times and positive once for Percocet, which had been

prescribed to her. On another occasion, mother was unable to provide enough of a

specimen to be tested, and mother signed an admission regarding the use of THC on

January 28, 2014.

{¶20} Sonya Thompkins, an outpatient therapist at Valley Counseling, also

testified for the agency. She is a licensed, clinical counsel who primarily works with

children in foster care. She counseled D.S. since October 2013. She describes D.S. as

a funny and loveable boy who is very detached during therapy sessions. He does not

want to discuss his foster care or his emotions. Thompkins believes that D.S. had not

5 fully grasped his situation, explaining that he “is holding on and holding out for getting

back home” with his mom and dad.

{¶21} During the first day of trial, March 24, 2014, D.S.’s father was detained by

the Trumbull County Sheriff’s Department in response to a federal warrant for his arrest.

The next day of trial convened and father’s counsel indicated that father was picked up

on a probation violation. As a result, counsel moved the court to continue the duration

of the trial. The trial court denied the motion suggesting that father participate

telephonically. This never occurred. Father was still incarcerated two months later on

the final day of trial.

{¶22} Erica Beil, a substitute care caseworker from the Trumbull County

Children Services, testified. Beil has been D.S.’s caseworker since he entered foster

care more than two years before her testimony. She explained that the agency

obtained custody of D.S. after it was reported that his grandmother was abusing crack

while he was in her care. She tested positive, and D.S. and his cousins were removed

by the Warren City Police. He was adjudicated a dependent in January 2012 and has

been in agency custody since that time.

{¶23} Beil confirmed that case plans were developed for each parent, but that

neither successfully completed their plans. She confirmed that the father has not

secured stable, independent housing; that he never verified sufficient income to support

D.S.; and that he has not consistently visited D.S.

{¶24} Beil confirmed that father was in federal custody for eight months and that

upon his release in August 2012 through the date of her testimony, March 2014, that

father attended a little more than half of his weekly scheduled visits with D.S. Father did

6 not visit D.S. at all in February or March of 2014, and he visited with D.S. twice in

January of 2014. At one of the January visits father appeared impaired and was asked

to submit to a drug screening. He refused and became combative. At another January

visit, father refused to submit to a drug screening and then left without visiting.

{¶25} Beil testified that father was to pay $50 per month in child support since

December 2012, but has paid nothing. She likewise confirmed that father previously

had his parental rights terminated regarding his child with another woman based on his

abandonment of that child. However, Beil admitted on cross-examination that the

reasons for the removal of that child were all directly related to the mother’s actions and

that there was no way to confirm whether father had notice of those proceedings since

he apparently lived in Columbus at the time.

{¶26} Beil testified that father’s lack of contact and failure to complete his case

plan display his lack of commitment to D.S. She confirmed that father was not home for

his scheduled home inspection and that he no longer maintains that address as his

residence. When father did finally meet Beil for the postponed home inspection, the

home did not satisfy the issues previously identified as lacking.

{¶27} Beil also confirmed that mother never participated or completed the

interstate home study, which was sent to Georgia twice. Mother then moved to Ohio

with her other two children who are now likewise in the custody of the agency. Mother’s

other children had twice been in agency custody.

{¶28} Upon mother’s relocation to Ohio, she stayed at the father’s house for a

few days with her other two children before moving to a shelter. Mother’s visits with

D.S. have been consistent since her move to Ohio. Her telephone visits during her

7 Georgia residency were interrupted for two months when they were suspended as a

result of mother’s “grilling” D.S. on the phone and requests for him to relay messages to

father. Beil described D.S. as having “an incredibly difficult time remaining focused”

during these telephone visits.

{¶29} Upon her return to Ohio, mother and D.S. had weekly, one-hour visits

supervised by camera, but the supervision was escalated when she broke the agency’s

visitation rules. The same day she was given the rules, she violated them by

whispering to D.S. and discussing his father with him. Mother repeatedly told D.S.

about visits with his father that were not scheduled and that never occurred, which

would upset him. Mother also asked repetitive questions of D.S., told him how to act,

and demanded hugs and kisses. At times, D.S. would run from mother, and she would

chase him around the room. Mother was likewise disrespectful to the agency staff,

including Beil, and one of the visits had to end early which resulted in mother refusing to

allow D.S. to leave. Mother has likewise failed to pay any of her child support

payments.

{¶30} D.S. had been in the agency’s custody for two years before the March

2014 permanent custody trial. Before that, he had been in the care of his father and/or

grandmother. D.S. had not lived with his mother for three years when he came into the

agency’s care.

{¶31} Beil confirmed that D.S. has a very loving relationship with his father and

that they interact in an appropriate manner. She described them as having a strong

bond. She explained that D.S. was very upset when his father did not appear for his

scheduled visits. Although father told Beil he had been working, she asked for a

8 release to secure his employment records, but father never executed it. She confirmed

on cross-examination that the recent decline in father’s visits could be a result of

father’s frustrations with the process. Beil agreed that father’s inability to afford

appropriate housing and utilities has been an issue. She also agreed that D.S. was

taken while father was in prison and that D.S.’s removal did not directly stem from any

actions by father. Father contacted her upon his release from prison in an effort to get

D.S. returned to him.

{¶32} Beil also noted that father does not have his license to drive an automobile

and that he uses a bicycle for transportation. Father planned to use his own father for

emergency transportation for D.S. to comply with his case plan. Father assisted Beil in

securing his psychological evaluation. Father complied with some of the case plan

requirements, but was still unable to maintain employment, pay child support, and

secure independent housing.

{¶33} As for D.S.’s relationship with his mother, Beil describes him as “hard

pressed by Mom to reciprocate her affections. I’ve witnessed many occasion where

Mom is overly affectionate * * * where [D.S.] is squirming to get away.” Beil explained

that D.S. does not get excited for visits with his mother and he is not upset when they

are over. Beil explained that D.S. was excited to visit with his half siblings, but then they

did not get along well and would argue. D.S. has not lived with his mother since he was

two years old. Mother’s counsel claims that father had hid D.S.’s location from her, but

there was no evidence presented on this issue.

{¶34} Beil confirmed on cross-examination that mother relocated to Ohio in

January of 2014. Beil also confirmed that the failure in securing mother’s home study in

9 Georgia was a result of failures at the county level and not based on mother’s

willingness to cooperate. She agreed that mother was “frantic about the process * * *.”

Beil agreed that mother has made “considerable effort to try to reconnect with her child

and develop that bond[.]” Mother brought him clothing and an electric scooter at

Christmas. Beil confirmed that mother asked for photos of her and D.S. every time she

visited with him. She made an unannounced visit to mother’s home one week before

the trial and that based on her cursory review of mother’s home, it appeared

appropriate. Mother’s income in Georgia was via social security in some form. Beil has

not attempted to confirm whether mother has a stable income since her relocation to

Ohio. At the time of her visit to mother’s home, Beil likewise did not attempt to

determine if mother had complied with her newest case plan.

{¶35} No other relatives have come forward and offered to care for D.S. Beil

believes that D.S. is an adoptable child, and she recommends that permanent custody

be granted to the agency. She explained that to her an adoptable child determination

includes the fact that D.S. functions well in a family setting and whether she believes a

family would “come forward” for him. Beil believes that D.S. can bond to an adoptive

family and that he is generally a very friendly, open, and giving child.

{¶36} On cross-examination, Beil agreed that there was not an issue concerning

father and drug testing until the latest motion for permanent custody by the agency.

She also agreed that father consistently “had a roof over his head” since his release

from prison, but the accommodations were consistently too small and did not meet

specific requirements for D.S.’s placement. Father had a difficult time securing a

suitable residence based on his felony background. Beil confirmed that the agency

10 even wrote letters to the local Metropolitan Housing Authority in an effort to help father

secure a suitable living space for D.S.

{¶37} At the time of the custody hearing, father was again incarcerated and

mother had two other children in foster care in addition to D.S. D.S. had been in the

agency’s care for more than two years. Father had previously been released from

prison in August of 2012, but was still not in a position to take care of D.S. a year later in

August 2013.

{¶38} Dr. David Chiarella, a pediatric and adolescent psychologist, also testified

and explained the reasoning ability of a typical seven-year-old. He stated that although

a seven-year-old can state his preference regarding custody and visitation issues, he

does not believe that a seven-year-old “has the necessary reasoning ability in order to

understand particularly the potential risks and benefits of those decisions, [or] the

potential consequences of those decisions.”

{¶39} Becky Peters, visitation coordinator and licensed social worker at TCCSB,

also testified. She has supervised and monitored some of D.S.’s visits with his parents.

She described D.S.’s visits with his father as usually calm and affectionate, but on one

occasion, father was agitated and short with D.S. She watched him throw a big, bouncy

ball at D.S.’s head in a “mean way.” Peters then entered the room to watch the visit,

and D.S. and father were coloring. D.S. asked his dad to hang his drawing on his

refrigerator and father told him no because he had too much “junk” on it. Peters

confirmed that father’s visits had become less consistent and that father had not visited

with D.S. at all in February or March of 2014. She described D.S. as very sad and

upset when his father missed a scheduled visit.

11 {¶40} Peters explained that mother always came to her visits and was always

very affectionate. She brought D.S. snacks and gifts, and she was interested in his

school work. She described D.S. as becoming “limp” in response to his mother’s

affections. D.S. is more relaxed during his visits with father; whereas he is hyper and

aggressive during mother’s visits. Peters agreed that his mother has made every effort

possible to let D.S. know that she is his mother and that she loves him. However,

Peters also had to speak with mother about violating agency rules. Mother often

whispered during visitation and talked about D.S.’s father, which was upsetting. Mother

also asked D.S. to have a foster parent meet her somewhere for a visit, which was

inappropriate. At another visit, mother made a threat toward D.S.’s foster parents,

which resulted in the agency ending the visit and calling the police.

{¶41} Trudy Seymour, supervisor of substitute care at TCCSB, testified that she

oversaw D.S.’s case plan progress and visitation. Seymour likewise communicated with

parents and counsel regarding D.S.’s case. She oversaw mother’s phone visitation with

D.S. while she lived in Georgia. Mother only missed one phone appointment and she

often included D.S.’s siblings in the calls. Seymour explained that mother would tend to

talk about when D.S. would return home and ask D.S. to relay messages to his father,

which were against agency rules. The State of Georgia never sent the agency an

approval regarding interstate placement of D.S. in mother’s Georgia home. D.S. was in

the agency’s care for 24 months at the time of the hearing, and mother lived in Georgia

for 20 of those 24 months.

{¶42} Upon mother’s return to Ohio, Seymour was involved with her in-person

visits. On one occasion, mother was advised not to discuss father, but she almost

12 immediately told D.S. that she was staying with his father and that they wanted him to

come home and be a family. Mother also waited in her car to waive goodbye when D.S.

left with his foster family, which was a safety issue. On another occasion, Seymour said

she had to call the police, but no further details were provided as to why the police were

contacted.

{¶43} Seymour provided mother contact information for the local housing

authority upon her return to Ohio. She also confirmed that mother’s two other children

were in agency care at the time of D.S.’s hearing. Seymour agreed on cross-

examination that the agency had already moved for permanent custody before mother

relocated to Ohio, indicating that D.S. had been in its “care too long and the Agency had

to move forward with best interest and go to permanent custody.”

{¶44} Mother testified, but on cross-examination only. She confirmed that she is

married and her husband is incarcerated in Georgia. She said they plan on moving to

Columbus, Ohio upon his release. She has three children including D.S., who has not

lived with her since he was two. She confirmed that another of her children was in the

care of children services in Franklin County, Ohio and again in Georgia. Both of her

other sons are currently in foster care “by her choice.” She explained that she was

never approved for the interstate placement of D.S. since she could not afford to pay for

the $1,500 psychological evaluation. So, she moved to Ohio in an effort to get D.S.

back.

{¶45} Upon her return and while staying at a shelter for abused women and

children, mother claims that the staff there caused one of her sons to suffer asthma

attacks by making loud noises while he was sleeping. She called for emergency

13 medical transportation to the hospital to check her son’s asthma and her blood

pressure. Mother takes Prozac and Vistaril to treat her depression and she was taking

both at the time. She explained that she voluntarily placed her other two sons in foster

care until she is able to secure safe housing for them.

{¶46} D.S.’s guardian ad litem, Tina Chinchic, gave her report at the hearing and

explained that she has been overseeing his best interests since December 2011. D.S.

expressed his desire to live with his father early on. Because his best interests

conflicted with his desires, she secured an attorney to represent him. The GAL

unequivocally concluded that D.S. was in need of permanency and that after 28 months

of agency custody, he needs stability and a “solid game plan for a home and a life.”

She explained how D.S. had thrived with his first foster family and that both of his

parents have issues and cannot provide the stability that he needs. She recommended

that D.S. be permanently placed with the agency to be adopted because that is in his

best interest. The GAL also believes that the agency has made “reasonable efforts by

submitting two interstate compacts” to Georgia; that the agency made “reasonable

efforts” toward assisting the father by providing counseling, evaluations, and

transportation services; and that the agency generally made reasonable efforts to

reunify the family.

{¶47} Seymour was called as a rebuttal witness. She confirmed that mother

completed ten parenting classes during the intermission between trial dates from April

2, 2014 to May 21, 2014. However, the report recommended additional parenting

classes. Mother also attended outpatient counseling during this time and continued to

14 visit D.S. regularly during this time. However, Seymour explained that mother still had

not complied with the agency’s visitation rules.

{¶48} The magistrate subsequently issued a ten-page decision on June 4, 2014

that permanently terminated mother and father’s parental rights with respect to D.S.

The decision addressed each best interest factor and found that clear and convincing

evidence warranted that the permanent custody of D.S. be awarded to TCCSB. Both

parents and D.S. filed objections.

{¶49} Notwithstanding the magistrate’s decision and pending objections, the trial

court authorized both mother and father an additional opportunity to submit suitable

home studies. Both failed to do so. The trial court set forth the following in its February

25, 2015 pretrial order:

{¶50} “A pretrial was held this past month to see if there were any new

placement opportunities for either parent. Nothing new was offered at the pretrial, and

the court concludes that Father remains in the care of federal authorities and Mother is

in a shelter. The Court was informed that the father will ‘soon’ be released from federal

control and have [sic] a home for himself and [D.S.] Both parents are physically in

Franklin County, Ohio. Neither can immediately take [D.S.] * * * [A]nd in order to

achieve permanency, the agency * * * must continue to have custody of [D.S.] and the

Father [is] granted until May 11, 2015, at 9 AM to file * * * a Franklin County Homestudy

approving him, his home and those who reside with him, for placement of [D.S.] Upon

failure to do so, the Decision [of the magistrate] will be approved.”

{¶51} Father never complied with this additional opportunity to establish that he

could afford D.S. a suitable home. Thus, on May 11, 2015, the trial court overruled all

15 objections, granted permanent custody of D.S. to the agency, and terminated

appellants’ parental rights. Mother and father timely filed their instant appeals.

{¶52} Mother asserts two assigned errors for our review:

{¶53} “The trial court committed reversible error when it found that TCCSB made

reasonable efforts to eliminate the continued removal of D.S. from his home or make it

possible to return into his mother’s legal custody when TCCSB made no request for a

bypass of the requirements of 2151.419(A), and none was granted.

{¶54} “The trial court committed reversible error when it found, against the

manifest weight of the evidence presented at trial that permanent custody was in the

best interest of D.S., and that TCCSB engaged in reasonable case planning and diligent

efforts to assist Ms. McCluskey to remedy the problems that initially caused D.S. to be

placed outside of her home pursuant to R.C. 2151.414(E)(1).”

{¶55} Father asserts two assignments of error on appeal:

{¶56} “The trial court erred by refusing to grant Father’s motion for continuance

of the custody hearing, where the Court was specifically advised regarding the reason

for Father’s absence, and Father had appeared at the previous custody hearing, had

been actively involved in the case, and had outlined his intention to testify at the custody

hearing.

{¶57} “The trial court erred in granting TCCSB’s motion for permanent custody

and terminating Father’s parental rights, where TCCSB failed to establish that

permanent custody was in the best interest of the minor child, D.S. (D.O.B.

08/21/2006).”

16 {¶58} Mother first claims that the trial court committed reversible error in finding

that the agency met its burden and made reasonable efforts to reunify D.S. with her.

The agency disagrees explaining that it previously put forth the requisite, reasonable

efforts to reunify D.S. with his mother, but that it did not have to make further,

reasonable efforts to reunify once it filed its motion for permanent custody pursuant to

R.C. 2151.419(A)(1).

{¶59} “When the state intervenes to protect a child’s health or safety, ‘[t]he

state’s efforts to resolve the threat to the child before removing the child or to permit the

child to return home after the threat is removed are called “reasonable efforts.”’”

(Citation omitted.) In re C.F.,

,

,

¶29.

Various sections of the Revised Code set forth an agency’s duty to make reasonable

efforts; the concept is not encompassed in a single section.

{¶60} However, the statutory requirement that a court determine whether an

agency has made reasonable efforts to return a child to the parents’ home does not

apply in a permanent custody proceeding. Id at ¶41-42. Instead, the “reasonable

efforts” requirement applies at other, earlier stages of the proceeding.

{¶61} “R.C. 2151.419 does not apply in a hearing on a motion for permanent

custody filed pursuant to R.C. 2151.413 and R.C. 2151.414. * * * [T]his does not mean

that the agency is relieved of the duty to make reasonable efforts.” (Emphasis added.)

In re J.F.F., 5th Dist. Stark No. 2009-CA-00133,

, at ¶24, citing In re

C.F. at ¶42. Instead, “‘the agency may be required under other statutes to prove that it

has made reasonable efforts toward family reunification.’”

However, “[i]f the agency

has not established that reasonable efforts have been made prior to the hearing on a

17 motion for permanent custody, then it must demonstrate such efforts at that time.” In re

{¶62} In the instant case, the trial court found that the agency made reasonable

efforts to safely return D.S. to his parents on several occasions. On April 9, 2013, the

magistrate’s decision notes that reasonable efforts were made by the agency to make it

possible for D.S. to return home safely. The agency’s efforts included, but were not

limited to, providing crisis intervention, assessment services, placement services, home

evaluations, relative search, and referrals to community resources. This decision

likewise notes that the agency’s interstate compact home evaluation was pending

regarding the mother’s home in Georgia.

{¶63} The magistrate’s November 5, 2012 decision made similar findings,

including that reasonable efforts were made by TCCSB to secure home evaluations,

drug screenings, casework counseling and management, and others in order to make it

possible for D.S. to return home safely. This decision also notes that Georgia denied

the agency’s first interstate home study request since mother’s other two children were

temporarily in foster care in Georgia.

{¶64} The magistrate’s March 15, 2012 decision likewise finds that the agency

made reasonable efforts to return D.S. safely home by providing services including, but

not limited to, placement services, home evaluations, investigative and assessment

services, and others. Both mother and father were appointed counsel on this date, and

the GAL was appointed as well. As TCCSB points out, there were no objections filed in

response to these “reasonable efforts” findings.

18 {¶65} Thus, contrary to mother’s claims, the trial court made “reasonable effort”

findings on at least three prior occasions. Further, the magistrate delineated these

reasonable efforts in his June 4, 2014 decision, noting that the reasonable efforts have

been exhausted and neither mother nor father is able to receive custody of D.S.

Furthermore, the evidence reflects that the agency exerted reasonable efforts and

provided services designed to aid both mother and father to remedy their issues in an

effort to return D.S. to them.

{¶66} Encompassed in mother’s first assigned error is her concern that although

the agency developed a later case plan in January of 2014 with a goal of reunification

upon her relocation to Ohio, it did not exert reasonable efforts to implement this

subsequent plan. She claims that although the agency drafted the plan, it had no

intention of fulfilling it and instead focused its efforts on securing D.S.’s permanent

custody with the agency. However, the record reveals that the agency continued to

facilitate mother’s visits with D.S., continued providing mother the requisite

assessments, parenting classes, and other reasonable efforts required of it.

Notwithstanding, and in spite of the agency’s continued efforts, D.S.’s siblings were still

in foster care at the time of the permanent custody trial, and she did not have an

approved placement for D.S.

{¶67} Accordingly, mother’s first assigned error lacks merit and is overruled.

{¶68} Next both mother and father take issue with the trial court’s finding that

permanent custody was in the best interest of D.S. Both raise this alleged error as their

second assigned errors.

19 {¶69} Parents have a constitutionally protected and fundamental right in the

care, custody, and management of their children. In re H.D., 10th Dist. Franklin No.

13AP-707,

; In re Murray,

,

(1990). However, these rights are not unconditional and are subordinate to the best

interest of the child when considering a motion to terminate parental rights. In re

Cunningham,

,

(1979). Thus, in certain

circumstances, the state may terminate one’s parental rights when doing so is in the

best interest of the child.

.

{¶70} R.C. 2151.413(D)(1) requires an agency with custody of a child for twelve

or more of the prior, consecutive 22 months to file a motion requesting permanent

custody of the child, unless it is not in the best interest of the child, or if the agency has

not made reasonable efforts under R.C. 2151.419 as detailed in the parent’s case plan.

{¶71} R.C. 2151.414 sets forth a two-part test governing whether to award

permanent custody to a public services agency. In re J.S., 8th Dist. Cuyahoga Nos.

101991 and 101992,

, ¶47. First, after a hearing, the court must find by

clear and convincing evidence that granting permanent custody of the child to the

agency is in the best interest of the child upon considering all relevant factors including

those in R.C. 2151.414(D). Clear and convincing evidence is evidence sufficient to

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

to be established.” In re Holcomb,

,

(1985).

The clear and convincing standard does not require clear and unequivocal evidence. In

re Estate of Haynes,

,

(1986). In determining

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

20 court must examine the record and determine whether the trier of fact had sufficient

evidence before it to satisfy this burden of proof. State v. Schiebel,

,

(1990). The credibility of witnesses and weight of the evidence are

primarily issues for the trial court, as the trier of fact. In re Ohler, 4th Dist. Hocking No.

04CA8,

.

{¶72} Second, a court must make one of the findings delineated in R.C.

2151.414(B)(1)(a)-(e). In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-

3709, ¶10. In practice, however, courts usually make the second finding first before

embarking on the best interest analysis. In re N.T., 11th Dist. Ashtabula No. 2010-A-

0053,

, ¶57. In the instant case, the trial court found that D.S. had been

in the agency’s care for the past 22 consecutive months, consistent with R.C.

2151.414(B)(1)(d). This finding is undisputed.

{¶73} The best interest determination focuses on the child, not the parent. In re

Mayle, 8th Dist. Cuyahoga Nos. 76739 and 77165,

, *17-18

(July 27, 2000), citing Miller v. Miller,

,

(1988).

While a trial court is required to consider each relevant factor under R.C.

2151.414(D)(1) in making a permanent custody determination, "'no one factor is given

greater weight than the others pursuant to the statute.'" In re T.H., 8th Dist. Cuyahoga

No. 100852,

, quoting In re Schaefer,

, 2006-

Ohio-5513,

. And only one of the enumerated factors needs to be

resolved in favor of an award of permanent custody to the agency for the trial court to

terminate parental rights. In re J.S.,

, at ¶51 citing In re Z.T., 8th Dist.

Cuyahoga No. 88009,

.

21 {¶74} The best interest factors are spelled out in R.C. 2151.414(D)(1), which

states in part:

{¶75} “In determining the best interest of a child at a hearing held pursuant to

division (A) of this section or for the purposes of division (A)(4) or (5) of section

2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall

consider all relevant factors, including, but not limited to, the following:

{¶76} “(a) The interaction and interrelationship of the child with the child’s

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

person who may significantly affect the child;

{¶77} “(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;

{¶78} “(c) The custodial history of the child, including whether the child has been

in the temporary custody of one or more public children services agencies or private

child placing agencies for twelve or more months of a consecutive twenty-two-month

period, or the child has been in the temporary custody of one or more public children

services agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period and, as described in division (D)(1) of section

2151.413 of the Revised Code, the child was previously in the temporary custody of an

equivalent agency in another state;

{¶79} “(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;

22 {¶80} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

{¶81} The relevant factors from (E)(7) to (11) include whether the parents have

had their parental rights involuntarily terminated with respect to a sibling of the child in

issue.

{¶82} In this case, several factors weigh in favor of awarding permanent custody

of D.S. to TCCSB. In overruling objections to the magistrate’s decision, the trial court

concluded that in spite of the agency’s efforts, D.S. had been in its care for more than

three years and that as of June 4, 2014 “the parents had no placement available” for

D.S. It also noted that a subsequent pretrial was held after the trial to see “if there were

any new placement opportunities with either parent. Nothing new was offered at the

pretrial * * *. He is too young to store in foster care. * * * He needs permanency. * * *

He is too young to not have a home and family.”

{¶83} Upon reviewing the record in this case, the trial court had clear and

convincing evidence before it to conclude that it was in D.S.’s best interest to be placed

in permanent custody of TCCSB. D.S. was able to thrive in his stable foster care

environment, but neither his mother nor his father can provide him stability. D.S. has

also demonstrated his ability to strongly bond with his first foster parent.

{¶84} Although D.S. expressed a strong desire to live with his father, and the

two showed a substantial bond to one another, father’s repeated incarceration and bad

decision making has left D.S. without the structured and safe environment he needs.

Father has not been able to provide a legally secure and permanent placement for D.S.

At the time of the magistrate’s decision, D.S. had been in the agency’s care or in foster

23 care for 31 months. Further, father previously lost permanent custody of another child

to TCCSB.

{¶85} Father places great emphasis on the fact that he was not the reason for

D.S.’s initial placement in the agency’s care and custody. While his acts did not directly

cause the police to be called and result in D.S.’s placement with the agency, father’s

poor decision making did result in his incarceration, which did directly prevent him from

affording D.S. the permanent and safe living environment that he needs.

{¶86} And although mother has exerted recent efforts in an attempt to secure

D.S.’s placement with her, including relocating to Ohio, she likewise has been unable to

provide a secure and permanent placement for D.S. At the time of the custody hearing,

mother’s two other children were in foster care, and they had previously been in foster

care in Georgia. The evidence did not demonstrate that she could provide D.S. a stable

home. In addition, mother’s income was based on child support for another child and

social security. She testified that she could not afford the move from Georgia to Ohio,

which warranted her voluntary placement of her other two boys in foster care. Mother

likewise did not satisfy her minimum financial support obligations.

{¶87} Further, D.S. did not demonstrate the strong bond with mother that he

showed with his father. D.S. was resistant to his mother’s affections, which was likely a

result of the fact that D.S. had not lived with her since he was two-years-old and the fact

that he only had telephone visits with her for more than a year.

{¶88} Finally, the GAL recommended permanent placement with the agency for

the purpose of pursuing D.S.’s adoption because D.S. needs permanency and neither

of his parents could provide the stability that he needs.

24 {¶89} In light of the foregoing, and upon carefully reviewing the record, the

juvenile court’s findings are supported by clear and convincing evidence, were not

against the manifest weight of the evidence, and were within the trial court’s discretion.

The evidence establishes that neither parent can provide the stable home that D.S.

needs and that permanency could not be achieved without granting the agency’s

motion. Thus, both mother and father’s second assignments of error lack merit and are

overruled.

{¶90} As for father’s first assigned error, he claims that the trial court committed

reversible error in not continuing the custody trial in light of his recent incarceration,

inability to participate, and his prior active involvement in the case. We disagree. A trial

court has broad discretion regarding procedural issues, which includes its decision to

grant or deny a continuance. State v. Ahmed,

,

,

, ¶44; State v. Jones,

,

,

(2001).

{¶91} In this case, the trial had already commenced when father was arrested.

Further, he was represented by counsel who was present for the duration of the

proceedings, and the trial court suggested father appear telephonically.

{¶92} The next day of trial convened and father’s counsel indicated that father

was picked up on a probation violation. As a result, counsel moved the court to

continue the duration of the trial. The trial court denied the motion. Father was still

incarcerated two months later on the final day of trial. On this final day of trial, father’s

counsel moved the court to order the federal facility to transport father to the court to

participate in this final day of trial. The trial court denied the motion explaining that the

25 federal facility would not honor this type of state order. The trial court again indicated a

willingness to allow father to participate via conference call, but his counsel indicated

that the federal facility would not facilitate this request.

{¶93} Notwithstanding, father could have submitted his trial testimony via

deposition. In re H.R., 6th Dist. Williams Nos. WM-13-008 and WM-13-009, 2014-Ohio-

635, ¶24-25 (holding in part that it was not error in proceeding with termination of

parental rights hearing since mother, who did not appear out of fear of being arrested on

an unrelated matter, could have submitted her testimony via deposition.)

{¶94} Further, the custody trial had previously been continued to facilitate

father’s efforts to satisfy his case plan requirements, which were still unsatisfied in May

of 2014.

{¶95} Furthermore, father was still incarcerated on February 25, 2015, some

nine months after the trial. Nevertheless, the trial court afforded him another

opportunity to submit an approved home study to enable D.S. to be reunified with him

after his most recent incarceration. Father again failed to comply.

{¶96} Thus, we cannot conclude that the trial court abused its discretion in

denying father’s motion to continue the custody trial. Father has been provided ample

opportunity to establish his ability to provide D.S. with the safe home that D.S. needs,

but he failed to do so. Accordingly, his first assignment of error lacks merit.

{¶97} Based on the foregoing, all of appellants’ assigned errors lack merit, and

the judgment of the Trumbull County Court of Common Pleas, Juvenile Division, is

affirmed.

26