[Cite as In re E.H.,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

IN RE: :

E.H., et al. : CASE NO. CA2021-11-012

: OPINION 4/8/2022 :

:

:

APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. 20213055, 20213056, and 20213057

Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant Prosecuting Attorney, for appellee, Preble County Children Services

The Kollin Firm, llc, and Nathan D. Boone, for appellant, C.M.

Kirsten Knight, for appellee, T.H.

HENDRICKSON, J.

{¶1} Appellant ("Mother") appeals the decisions of the Preble County Court of

Common Pleas, Juvenile Division, granting permanent custody of her three children, Ev.H,

El.H., and C.H., to appellee, Preble County Department of Jobs and Family Services

("PCDJFS" or "the Agency"). For the reasons outlined below, we affirm in part and reverse Preble CA2021-11-012

in part the juvenile court's decisions, and remand the matter to the juvenile court for further

proceedings consistent with this opinion.

Facts and Procedural History

{¶2} This case involves Mother's three children, Ev.H. born August 20, 2018, El.H.

born August 7, 2019, and C.H. born January 10, 2021. The children's father ("Father") has

separately appealed from the juvenile court's decisions.

{¶3} In May 2019, PCDJFS received a referral that Mother and Father were being

arrested for domestic violence and that law enforcement requested a caseworker to

respond and accept custody of Ev.H. Upon responding, the caseworker observed unsafe

conditions for the child's age, including a heater set to a high degree placed on the floor

next to piles of garbage and near the child. The caseworker also observed dirty diapers

throughout the floor space, a nearly empty and open can of baby formula, and that the

child's diaper was soaked through her clothing. The caseworker met with Mother and

Father in the Preble County Jail shortly thereafter, at which point Mother and Father

admitted to marijuana use and denied having jobs or income. As a result of these events,

PCDJFS requested, and was granted, temporary custody of Ev.H. in juvenile court Case

No. 20193025.

{¶4} On August 7, 2019, El.H. was born. At the time of his birth, PCDJFS did not

request custody of the child, as the agency did not have any "current concerns for needing

custody." Instead, PCDJFS requested protective supervision of El.H. in order to monitor

Mother's care of him in the home. On September 26, 2019, Mother attended a visit with

Ev.H. at the Agency. Because El.H. was not with Mother during the visit, PCDJFS

requested Mother to submit to a drug screen, which she refused to do. At that point, a

caseworker discovered a prescription vial of urine in Mother's bra. Upon questioning,

Mother indicated the urine was "for somebody else." As a result of these events, the Agency

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requested, and was granted, temporary custody of El.H. in juvenile court Case No.

20193063.

{¶5} The record reflects the Agency moved for permanent custody of Ev.H. and

El.H. prior to C.H.'s birth, and an initial permanent custody hearing was held before the

juvenile court in December of 2020.

{¶6} On January 10, 2021, PCDJFS received a referral that Mother gave birth to

C.H. PCDJFS was then advised by a doctor that Mother tested positive for amphetamines

and methamphetamines during her pregnancy in August and September. Thus, due to the

child's exposure to the illegal substances and Mother's history of substance abuse, the

Agency requested, and was granted, temporary custody of C.H. in juvenile court Case No.

20213001.

{¶7} On June 16, 2021, PCDJFS filed three new complaints with the juvenile court.

According to the complaints, PCDJFS intended to dismiss the children's previous cases,

i.e., Case Nos. 20193025, 20193063, and 20213001, because their dispositions were not

held within 90 days. The new complaints alleged that all three children were dependent

children and that Ev.H. was also an abused child. The new complaints were based on the

events summarized above, and further alleged that Father was released from the MonDay

Program in February 2021 and had tested positive for amphetamines on April 15, 2021.

{¶8} The new complaints sought permanent custody of the children as the juvenile

court's original dispositional order. The request for permanent custody was based upon the

Agency's allegation that neither Mother nor Father had remedied the concerns that led

PCDJFS to remove the children and that PCDJFS continues to have concerns regarding

the parents' substance use, domestic violence, income, and housing. Thus, when

considering the totality of the circumstances, the Agency believed that a grant of permanent

custody was required to ensure the health, welfare, and safety of the children.

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{¶9} On June 24, 2021, the juvenile court held a temporary disposition hearing,

where all parties agreed to temporary custody to the agency. The juvenile court then

appointed a Court Appointed Special Advocate ("CASA") for the children. Although Mother

and Father initially denied the allegations of the complaints, they subsequently entered

pleas of "admit" and Ev.H., El.H., and C.H. were adjudicated dependent and Ev.H. was also

adjudicated abused.

{¶10} By the time the permanent custody hearing was held on August 20, 2021,

Ev.H. was placed in a kinship care with her half-sister's grandparents and El.H. and C.H.

were placed together in foster care. At the time of the hearing, Ev.H. had been in her kinship

care placement for almost two years and El.H. and C.H. had been in the same foster home

since January 2021, when C.H. was less than one week old. The record indicates the

children are doing well in their respective placements, are developmentally on track, and

are bonded with their caretakers. Additionally, the record reflects that both sets of

caretakers wish to adopt the children if permanent custody is awarded to the agency.

{¶11} A case plan was filed with the juvenile court. The case plan required Mother

and Father to, among other requirements, submit to random drug screens, attend parenting

classes, attend domestic violence classes, and complete drug, alcohol, and psychological

assessments. The record indicates Mother and Father completed some of their case plan

services, but struggled to consistently take or test negative during their drug screens. That

is, both Mother and Father refused to provide a urine sample during the pendency of this

case and tested positive for illegal substances on more than one occasion.

{¶12} At the permanent custody hearing, the juvenile court heard testimony from

both Mother and Father, as well as S.M., EV.H.'s kinship placement, El.H. and C.H.'s foster

father, the PCDJFS caseworker handling the case, and Mother's therapist. Following this

hearing, the juvenile court issued a decision granting permanent custody of the children to

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the Agency. In so holding, the juvenile court determined that, notwithstanding the

reasonable efforts of PCDJFS, Mother and Father have failed continuously and repeatedly

to substantially remedy the conditions which caused the children to be removed. The

juvenile court also found that when considering the evidence, the reports, the exhibits, the

record, and the pleadings, PCDJFS had proved by clear and convincing evidence that a

grant of permanent custody was in the children's best interests.

Appeal

{¶13} Mother now appeals the juvenile court's decision granting permanent custody.

In support of her appeal, Mother raises the following assignments of error:

{¶14} Assignment of Error No. 1:

{¶15} THE PREBLE COUNTY DEPARTMENT OF CHILDREN AND FAMILY

SERVICES FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT

PERMANENT CUSTODY IS IN THE MINOR CHILDREN'S BEST INTERESTS.

{¶16} Assignment of Error No. 2:

{¶17} THE PREBLE COUNTY DEPARTMENT OF CHILDREN AND FAMILY

SERVICES FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT

APPELLANT HAD NOT REMEDIED THE CONDITION WHICH CAUSED THE REMOVAL

OF THE CHILD FROM THE HOME.

Permanent Custody Determination

{¶18} As an initial note, a public children services agency may seek permanent

custody of a child in an abuse, neglect, or dependency proceeding in one of two ways. It

may either request in the complaint that the juvenile court grant permanent custody as the

original dispositional order or the agency may later seek permanent custody after an initial

dispositional order granted that agency temporary custody. In re T.K.K., 12th Dist. Butler

No. CA2012-01-008,

, ¶ 22; In re C.S., 12th Dist. Warren No. CA2018-07-

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080,

. In this case, PCDJFS sought permanent custody in its

complaint as the original dispositional order, therefore the statutory provision of R.C.

2151.353(A)(4) applies. In re W.R., 12th Dist. Fayette No. CA2011-08-016, 2012-Ohio-

382, ¶ 30.

{¶19} Pursuant to R.C. 2151.353(A)(4), the juvenile court must satisfy a two-prong

test to grant permanent custody in the original dispositional order. The juvenile court must:

(1) determine that the child cannot be placed with one of the child's parents within a

reasonable time or should not be placed with either parent by considering the factors in

R.C. 2151.414(E); and (2) determine that permanent custody is in the best interest of the

child by considering the factors in R.C. 2151.414(D)(1). In re A.A., 12th Dist. Clermont No.

CA2015-12-098,

. The public children services agency must prove

by clear and convincing evidence that the statutory standards have been met before the

court may award the agency permanent custody and terminate a natural parent's

constitutionally protected liberty interest in the care and custody of the child. In re K.W.,

12th Dist. Butler No. CA2015-06-124,

, citing Santosky v. Kramer,

,

(1982).

{¶20} On review, an appellate court is generally limited to determining whether

sufficient, credible evidence exists to support the decision to grant permanent custody. In

re W.J.T., 12th Dist. Butler No. CA2019-03-047,

. Nevertheless, an

appellate court may review the judgment as to whether it is against the manifest weight of

the evidence. In re A.A.,

, citing In re T.P., 12th Dist. Butler No.

CA2015-08-164,

. To determine whether the judgment is against the

manifest weight of the evidence, an appellate court will weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether in

resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a

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manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.

In re T.P. at ¶ 19, citing Eastley v. Volkman,

,

.

When an appellate court weighs the evidence, there exists a presumption in favor of the

findings made by the finder of fact and any evidence prone to more than one construction

will be construed to sustain the judgment. In re C.Y., 12th Dist. Butler Nos. CA2014-11-

231 and CA2014-11-236 thru CA2014-11-238,

, ¶ 25.

{¶21} As to the first prong, R.C. 2151.414(E) provides sixteen factors that a court

may consider. If one or more of the factors exist, "the court shall enter a finding that the

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

with either parent[.]" R.C. 2151.414(E). Therefore, the plain language of the statute only

requires a finding of one R.C. 2151.414(E) factor to satisfy this part of the test.

{¶22} In this case, the juvenile court determined that R.C. 2151.414(E)(1) applies,

as Mother and Father had not substantially remedied the conditions that led to the children's

removal, and therefore the children could not, and should not, be placed with either parent

within a reasonable period of time. In support of its finding, the juvenile court pointed to

Mother and Father's illegal drug use and Father's alcohol abuse, which was related to each

of the children's removal, as well as the removal of Mother's older child in 2016. The juvenile

court noted the parents' recent positive tests in the months prior to the permanent custody

hearing, as well as their extensive criminal histories involving illegal drugs. The juvenile

court also determined that Mother and Father had failed to remedy the Agency's concerns

regarding their finances and marginal living arrangements, which have existed since

PCDJFS became involved with Ev.H. in 2018.

{¶23} On appeal, Mother argues the juvenile court erred in finding she had not

substantially remedied the conditions that led to the children's removal from her care

because she had completed a significant portion of her case plan. According to Mother,

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the statute merely requires substantial remedy of the conditions, not absolute remedy,

which she has accomplished.

{¶24} After our review of the record, there is sufficient, credible evidence to support

the juvenile court's finding pursuant to R.C. 2151.414(E)(1). The record reflects that the

children were initially removed due to domestic violence between Mother and Father,

cleanliness and appropriateness of the home, and concerns regarding Mother and Father's

income and substance abuse.

{¶25} At the hearing, the caseworker testified that although Mother and Father had

"checked the boxes" of their case plan, the Agency remained concerned with Mother and

Father's substance abuse, Father's alcohol abuse, and Mother's ability to parent and care

for the children on a full-time basis with her ongoing mental health and substance abuse

concerns.

{¶26} Regarding Mother's ongoing substance abuse, the caseworker testified that

Mother refused to provide a urine sample on one occasion, which led to the removal of

El.H., and also tested positive for methamphetamine and amphetamine the month prior to

the hearing. After relapsing, Mother indicated that she began attending Narcotics

Anonymous but was not involved in any formal treatment. The caseworker described

Mother's continued substance abuse particularly concerning given Mother's history

throughout this case and "past cases as well," during which Mother displayed an

inconsistent ability to remain sober. The caseworker concluded that Mother's ability to

appropriately care for the children while she is using is a concern for the Agency.

{¶27} The testimony at the hearing also revealed that while Mother engaged in

mental health and substance abuse treatment at Recovery and Wellness, she was not

truthful in her self-reporting, which affected her treatment and diagnoses. Mother's therapist

testified that during her treatment at Recovery and Wellness, Mother was diagnosed with

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opiate use and sustained remission and cannabis use disorder, adjustment disorder, major

depressive disorder, and a posttraumatic stress disorder. Mother's diagnoses and

treatment were based on her self-reporting, and the therapist relied upon Mother's truthful

reporting of her history and symptoms. Thus, Mother's untruthful reporting impacted the

treatment she received and the opinion of her therapist.

{¶28} According to Mother's therapist, Mother's mental health treatment was

inconsistent, though she continued in substance abuse group treatment and graduated in

November 2020. Mother was making progress in her treatment until her final appointment

in June of 2021. At that point, Mother missed an appointment and "never got back on

schedule" despite her therapist attempting to reengage Mother in service.

{¶29} Mother's therapist indicated that it would be up to Mother whether she wanted

to continue her mental health services. Although a termination session did not occur in

Mother's treatment, her therapist felt she was "in a good spot" as of June of 2021. However,

the therapist indicated her opinion was related to Mother's mental health treatment, not her

substance abuse treatment, and was based on Mother's self-report that she had been

substance free since 2019. Mother's therapist did not have concerns regarding Mother's

substance abuse, but acknowledged that if she learned that Mother had substance abuse

related "needs" in August and September of 2020 and July of 2021, it would have been a

concern for her. According to the Agency, continued sobriety is necessary to truly resolve

concerns with substance abuse.

{¶30} When considering the above, we find the record clearly and convincingly

supports the juvenile court's determination that Mother was unable to substantially remedy

the Agency's concern regarding her substance abuse. As the juvenile court noted, and the

caseworker testified at the hearing, the parents' substance abuse was related to the

removal of all three children, and was the primary concern connected to El.H. and C.H.'s

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removal. As such, it was imperative for Mother to remedy the Agency's concerns in this

regard. This is because, and as acknowledged by both Mother and Father at the hearing,

substance abuse can affect one's ability to parent his or her children.

{¶31} Despite the importance of alleviating the agency's concerns regarding their

substance abuse, the record indicates both parents failed to prioritize their sobriety or

treatment throughout the case. For example, both parents were inconsistent in their

treatment and attempted to deceive the agency with fraudulent urine samples on separate

occasions, and both failed to successfully reengage in services after relapsing shortly

before the permanent custody hearing.

{¶32} The record also reflects that Mother's ability to parent the children while

struggling with her ongoing substance abuse and mental health issues remained

concerning to the Agency. On appeal, Mother claims she was never given an opportunity

to demonstrate her ability to parent the children for extended periods of time, as the Agency

never expanded her visitation, and therefore, the Agency's concerns in this regard should

not weigh against her. After our review, we disagree with Mother's claims. Although Mother

consistently visited with the children at the Agency, those visits were described as a "roller

coaster," and would either go "really well" or Mother would be mentally "off" and "not there."

Additionally, despite Mother's ability to provide for the children's needs during those visits,

the caseworker remained concerned that Mother's drug use and mental health concerns

impacted her ability to properly care for three children under the age of three "for longer

than an hour." According to the caseworker, having the children for more than an hour

during supervised visits would be a "huge adjustment" for Mother.

{¶33} While Mother is correct that the Agency did not expand her visitation, the

record indicates that expanded visitation was not available to Mother due to her

"inconsistency" and in light of her positive drug screens. As such, PCDJFS's concerns

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regarding Mother's ability to care for and parent the children on a full-time basis are valid.

{¶34} Additionally, although there was evidence that Mother and Father had

completed their case plan requirements, "the key concern is not whether the parent has

successfully completed the case plan, but whether the parent has substantially remedied

the concerns that caused the child's removal from the parent's custody." In re S.M., 12th

Dist. Clermont No. CA2015-01-003,

, ¶ 24. "[A] parent's successful

completion of the terms of a case plan is not dispositive on the issue of reunification, as the

case plan is simply a means to a goal, but not the goal itself." In re A.R., 12th Dist. Butler

No. CA2015-08-143,

. Accordingly, although Mother did "check the

boxes" and complete most of her case plan services, it is evident Mother had not remedied

the primary concern that led to the children's removal. This was reiterated at the permanent

custody hearing, as the caseworker testified that it is possible for the Agency to have

lingering concerns that prevent reunification despite the parents' completion of all case plan

objectives.

{¶35} Consequently, it is apparent from the record that there was sufficient evidence

to satisfy the first prong of the R.C. 2151.353(A)(4) test. As such, Mother's second

assignment of error is overruled.

{¶36} Turning to the second prong of the test, the juvenile court determined that it

was in the best interests of the children to grant PCDJFS permanent custody. Pursuant to

R.C. 2151.414(D)(1), a juvenile court shall consider, but is not limited to, the following five

factors to determine a child's best interests:

(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;

(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

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maturity of the child;

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

(d) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

{¶37} The Ohio Supreme Court has held that "R.C. 2151.414(D)(1) does not require

a juvenile court to expressly discuss each of the best-interest factors in R.C.

2151.414(D)(1)(a) through (e)." In re A.M., Slip Opinion

. However,

a court reviewing such a decision "must be able to discern from the magistrate's or juvenile

court's decision and the court's judgment entry that the court satisfied the statutory

requirement that it consider the enumerated factors."

While the statute does not define

"consider," the Ohio Supreme Court interprets "consider" as meaning "to reflect on: think

about with a degree of care or caution." Id. at ¶ 25.

{¶38} In making its best interest determination, the juvenile court relied upon its

"findings of fact, the evidence, the reports, the exhibits, the record, the pleadings and the

reports of CASA." In its decision, the juvenile court determined it was in the best interests

of the children for the agency to have permanent custody because the children are doing

well and have all their needs met in their respective foster/kinship homes and that the

children are very bonded to their foster/kinship families. The juvenile court also found that

the children are bonded to each other and that granting permanent custody to the Agency

will allow Ev.H. to visit with C.H. and El.H. and will allow the younger children to remain

together. The juvenile court further found that the children need stability and permanency

that only permanent custody could provide, and that no other relative could be considered

as custodians for the children.

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{¶39} In light of these findings, the juvenile court expressly considered the

enumerated factors of R.C. 2151.414(D)(1)(a) and (d). When considering the record and

the juvenile court's findings of fact, it is also clear that the juvenile court considered R.C.

2151.414(D)(1)(c) and (e). However, neither the juvenile court's entry, nor the testimony at

the permanent custody hearing, provides any insight into the juvenile court's consideration

of R.C. 2151.414(D)(1)(b), which requires the juvenile court to consider the children's

wishes "as expressed directly by the child or through the child's guardian ad litem, with due

regard for the child's maturity."

{¶40} Other districts have held that a juvenile court commits reversible error in

granting permanent custody of a child to a public children services agency where the record

did not contain reliable evidence about the child's wishes. See In re Swisher, 10th Dist.

Franklin Nos. 02AP-1408 and 02AP-1409,

, ¶ 40; In re Miller, 5th Dist.

Licking No. 04 CA 32,

; In re Ridenour, 11th Dist. Lake Nos. 2003-

L-146 thru 2003-L-148,

; In re Staten, 2d Dist. Montgomery No.

CA17146,

, 10-11 (Oct. 23, 1998). In this case, there is no

evidence in our record, let alone "reliable evidence," regarding the children's wishes. That

is, our record is devoid of any testimony or information related to the children's wishes or

their inability to express those wishes due to their young ages.

{¶41} This is true even when considering the information provided to the juvenile

court by the appointed CASA, who did not testify at the permanent custody hearing and did

not file her final report and recommendation with the juvenile court. Interestingly, despite

repeated references at the hearing and in the juvenile court's entry to "CASA reports" and

her recommendation, we have no evidence in our record as to whether CASA believed

granting permanent custody to PCDJFS is in the children's best interests. Rather, the single

CASA report included in our record was filed on November 10, 2021, after the permanent

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custody hearing, and only references Ev.H. and her progress in her kinship placement.

Although the record suggests additional CASA reports were prepared prior to the hearing,

and we have attempted to obtain those reports from the juvenile court, such reports were

not provided to this court on appeal. Consequently, we have no evidence in our record as

to what the CASA recommendation was or what information her missing reports include.

Without viewing these reports, we decline to assume that they reference the children's

wishes or their inability to express those wishes due to their ages. See State v. Shaibi, 12th

Dist. Warren No. CA2020-07-038,

.

{¶42} Accordingly, based upon the record before us, we cannot discern from the

juvenile court's decision and the court's judgment entry that the court satisfied the statutory

requirement that it consider the enumerated factor of R.C. 2151.414(D)(1)(b).

{¶43} Given the lack of any evidence concerning the children's wishes or a CASA

report regarding the same, we reverse the decision of the juvenile court and remand this

matter to the juvenile court. Upon remand, the juvenile court is instructed to consider the

children's wishes as expressed by the children themselves or through the CASA and render

a new decision regarding the children's best interests. The juvenile court shall also instruct

the CASA to file her reports with the juvenile court. If the CASA reports do not reference

the children's wishes or their inability to express those wishes due to their ages, the CASA

shall meet with the children and prepare a new CASA report reflecting her findings regarding

the children's wishes and their level of maturity. If the parties have not previously reviewed

the newly filed CASA reports, or in the event a new report is prepared, the juvenile court

shall conduct a hearing on the sole issue of the children's wishes and render a new decision

regarding the children's best interests.

{¶44} In light of the foregoing, we sustain Mother's first assignment of error. The

juvenile court's judgment is therefore affirmed in part, reversed in part, and remanded for

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further proceedings consistent with this opinion.

{¶45} Judgment affirmed in part and reversed in part.

BYRNE, J., concurs.

PIPER, P.J., concurs separately.

PIPER, P.J., concurring separately.

{¶46} I completely concur in the judgment of my colleagues, however, I write

separately to express the significance of the recent Ohio supreme court case In re: A.M.,

Slip Opinion

.

{¶47} The juvenile court in that case listed generically the five factors which must

be considered in R.C. 2151.141(D)(1). The supreme court noted there was no application

of the factors to specific facts of the case and therefore generically listing the factors was

insufficient. While the supreme court noted that each factor does not have to be individually

discussed, it must nevertheless be obvious from the juvenile court's decision that it did

consider each factor. In other words, the juvenile court's discussion or analysis in its

decision or entry must be sufficient to conclude the juvenile court actually reflected upon

the individual factors. In reviewing the juvenile court's decision, the supreme court

determined "obviously" each factor was considered.

{¶48} I write separately because our foregoing opinion may give the impression that

just having information in the record, or in a report, may satisfy the juvenile court's

affirmative duty to "consider" or "reflect upon with a degree of care or caution" each factor.

However, a careful reading will not find that In re: A.M. suggests merely having the

information buried in the record or testimony which might go to a factor, is sufficient to

demonstrate the juvenile court "considered" or "reflected upon" that information or testimony

with a degree of care or caution.

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{¶49} The supreme court went out of its way to explain the need for building public

trust and confidence in these extremely important cases dealing with children and the

parental right to raise one's child. In re A.M. discusses in detail the "best practices" and

"strongly encourages" juvenile courts to give some basis or articulation, at least to some

degree, as to each factor. Support for each factor's consideration leads to an

understandable conclusion. The supreme court also noted that knowing what the juvenile

court considered is fundamental for meaningful appellate review.

{¶50} In re: A.M. represents more than any one isolated paragraph or sentence, as

it is highlighted with rationale and reasoning aimed at elevating judicial accountability as

well as public understanding. Both the majority and dissenting opinions are essential

reading for all involved in permanent custody proceedings.

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