[Cite as In re N.L.,
2020-Ohio-166.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 19AP-397
[N.L.], : (C.P.C. No. 17JU-8751)
[R.L., : (ACCELERATED CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on January 21, 2020
On brief: Anzelmo Law, and James A. Anzelmo, for
appellant.
On brief: Robert J. McClaren, for appellee, Franklin County
Children Services.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations, Juvenile Branch
BRUNNER, J.
{¶ 1} Appellant, R.L., biological father of the child, N.L., who is the subject of
proceedings for permanent child custody, from which this appeal is taken, appeals a
decision by the Domestic Relations Division, Juvenile Branch of the Franklin County Court
of Common Pleas entered on May 24, 2019 granting permanent custody of his biological
child, N.L., to Franklin County Children Services ("FCCS"). Because R.L.'s trial counsel did
not object to the introduction of testimony by the guardian ad litem ("GAL") and R.L.
essentially adopted that testimony, there was no plausible basis for excluding the GAL's
testimony. Thus, we overrule R.L.'s first assignment of error. Because we also find that the
trial court's conclusions in weighing the factors set forth in R.C. 2151.414 were not against
the manifest weight of the evidence, we affirm the grant of permanent custody to FCCS.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} N.L. was born in April 2017. (July 10, 2017 Compl. at 1; Tr. at 12, filed Sept. 6,
2019.) At birth, N.L. weighed 3 pounds and 5 ounces and both he and his mother tested
No. 19AP-397 2
positive for cocaine, opiates, and methadone. (July 10, 2017 Compl. at 1; Tr. at 16.)
Consequently, on July 10, 2017, FCCS filed a complaint alleging that N.L. was an abused,
neglected, and dependent child. (July 10, 2017 Compl.)
{¶ 3} A temporary custody order issued in favor of FCCS on July 11, 2017. (July 11,
2017 Mag. Order.) Because N.L. had remained in the neonatal intensive care unit for
several months after his birth, the result of this order was that N.L. was released from the
hospital directly into the care of a foster family and has never lived with his biological
mother (A.S.) or father (the appellant, R.L.). (Tr. at 22, 39.) Shortly after the temporary
custody order issued, on July 17, the court appointed a GAL for N.L. (July 17, 2017 Mag.
Order.) Two months later, the court substituted a new GAL for the previous GAL. (Sept.
14, 2017 Mag. Order.) That GAL remained in place throughout the life of the case,
ultimately filing two reports relating N.L.'s status and prospects. (Oct. 2, 2017 GAL Report;
April 30, 2019 GAL Report.)
{¶ 4} Three months after the initial custody order, the court adjudicated N.L. to be
an abused, neglected, and dependent child. (Oct. 10, 2017 Jgmt. Entry.) On June 8, 2018,
FCCS filed the first motion for permanent custody of N.L. essentially alleging that A.S. and
R.L. were drug addicts who had abandoned N.L. by failing to visit N.L. or comply with
substantially any portion of the case plan. (June 8, 2018 PCC Mot. at 4-5.) In December
2018, FCCS filed a second motion alleging many of the same grounds and adding that A.S.
had since given birth to another child who also tested positive at birth for opiates and
cocaine. (Dec. 11, 2018 2d PCC Mot. at 4-6.)
{¶ 5} On May 7, 2019, the trial court held a hearing on the question of permanent
custody. (Tr. at 1.) Neither of N.L.'s biological parents appeared on time for the hearing.
(Tr. at 4-11.) N.L.'s mother, A.S., never appeared for any part of the hearing, reporting
through her attorney that she was in the hospital for a leg infection. (Tr. at 4-10.) But A.S.
never produced any proof or documentation to support this excuse. Id. R.L. arrived during
the testimony of the first witness. (Tr. at 19.)
{¶ 6} The first witness called by FCCS was the caseworker for N.L.'s case. She
confirmed that N.L. was born at 33 weeks' gestation with cocaine and various opioids in his
system and that the first several months of N.L.'s life were spent in a neonatal intensive care
unit. (Tr. at 16-17, 39.) She said that A.S. and R.L. rarely visited N.L. in the hospital and
No. 19AP-397 3
that, due to substance abuse concerns, FCCS had sought and received temporary custody
of N.L. while he was still in the hospital. (Tr. at 18, 20-21.) The upshot of this, explained
the caseworker, was that N.L. had been continuously in the custody of FCCS since July 10,
2017. (Tr. at 22.)
{¶ 7} The caseworker laid out the case plan objectives that would, if completed,
have permitted reunification. Essentially, these were that the parents were to complete
random drug screens, to submit to an alcohol and drug assessment, to follow the
recommendations of that assessment, to maintain verified employment, to obtain stable
and verifiable housing, and to submit to mental health assessments. (Tr. at 23, 79-80.)
Both parents admitted that their housing situation was not suitable for N.L. (Tr. at 27-28,
86.) Neither parent completed even a single drug screen and neither submitted to the
alcohol and drug assessment. (Tr. at 29, 34.) Neither parent took any steps toward
submitting to a psychological evaluation. (Tr. at 34.) Though R.L. generally was employed,
verification of that fact was inconsistent. (Tr. at 28-29.) Finally, as of the time of the
hearing in May 2019, the last time R.L. had visited N.L. was December 20, 2017. (Tr. at 34-
35.) A.S. had not visited since September 18, 2018. Id. Visits were permitted and all either
parent had to do to obtain a visit was to call and schedule one. (Tr. at 35.) In short, despite
attempts by FCCS to contact the parents at least every 60 days, the parents failed to respond
and neither parent met substantially any of the case plan objectives. (Tr. at 50, 83-84, 93-
94.)
{¶ 8} The caseworker stated that she made contact with some relatives of R.L. but
that none were willing and able to take custody of N.L. (Tr. at 38-39.) However, the
caseworker also testified that N.L. had been in the same foster home since his discharge
from the neonatal intensive care unit, that he had bonded with his foster parents (referring
to them as "momma" and "dada") and the other children in the home. (Tr. at 39.) The
caseworker testified that N.L.'s younger sister also lived in the foster home as of the time of
hearing and that N.L. referred to her as "baby" and gave her kisses. (Tr. at 41.) According
to the caseworker, the foster parents were willing to adopt both N.L. and his little sister.
(Tr. at 40.)
{¶ 9} The GAL testified that he had visited N.L. consistently at his foster parents'
home and that N.L. appeared to regard his foster parents as his true parents. (Tr. at 111-
No. 19AP-397 4
12.) He admitted that he never observed a visit between N.L. and R.L. (or A.S.) because the
visits were so infrequent. (Tr. at 112-13.) As he put it, "So due to basically no visitation
between either parent, I have not been able to see [N.L.] interact with biological parents."
(Tr. at 113.) He opined that N.L. was too young, as of the time of hearing, to articulate his
wishes. (Tr. at 117.) But based on observing N.L. in his foster home, the GAL stated that it
was unlikely that N.L. would wish to leave his foster family. (Tr. at 117.) In summing up,
the GAL noted that both N.L. and his younger sister were born positive for drugs and that
both A.S. and R.L. had completely failed to screen or even register for drug screening. (Tr.
at 118-21.) According to the GAL, after two years with no progress, N.L.'s need for
permanence justified a grant of permanent custody to FCCS. Id.
{¶ 10} R.L. testified twice, once as on cross, and once on direct during the
presentation of his own case. (Tr. at 98, 123.) He testified that A.S. is his wife and had been
married since 2012. (Tr. at 99.) He admitted that he and A.S. were still living in unsuitable
housing and that neither of them could take care of N.L. as of the hearing date. (Tr. at 99-
101, 129-30, 152-57.) R.L. also implied that he had "no real objections" to N.L. being in the
custody of the foster parents:
Q. Do you love [N.L.]?
A. I really don't know [N.L.]
Q. But do you want to have him in your custody?
A. I'm not -- I mean, like I said before, I have no real
objections –
Q. Could -
A. - they're great people.
(Tr. at 132.) In answer to questions from his attorney, R.L. stated that he did not want N.L.
out of his life. Id. Yet, he later further admitted that he wanted to make an unselfish
decision for N.L. and that the foster parents were doing a better job than he could do. (Tr.
at 154-55.) R.L. admitted that A.S. had a problem with drugs and also that he, himself,
refused to submit to drug testing at the time of hearing on the grounds that he would test
positive. (Tr. at 101-06, 125-26.) R.L. also endorsed the testimony of the GAL, stating that
"everything he said is correct." (Tr. at 144.)
No. 19AP-397 5
{¶ 11} On May 24, 2019, the trial court issued a judgment entry granting permanent
custody of N.L. to FCCS. (May 24, 2019 Jgmt. Entry.) The trial court found that N.L. had
been abandoned, that no other suitable relative could take custody, and N.L.'s biological
parents had failed to successfully complete any essential components of the case plan. Id.
at 8-11.
{¶ 12} R.L. now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 13} R.L. presents two assignments of error for review:
[1.] The trial court plainly erred by admitting the testimony of
the guardian ad litem.
[2.] Children services failed to establish, by clear and
convincing evidence, that it should be given permanent custody
of N.L.
III. DISCUSSION
A. First Assignment of Error - Whether the Trial Court Plainly Erred in
Admitting the GAL's Testimony
{¶ 14} R.L. argues that, although his counsel did not object to the GAL offering
testimony in this case and although he testified that "everything" the GAL said was
"correct," we should find that the GAL should not have been permitted to testify. (R.L.'s
Brief at 5-7; Tr. at 144.) He bases this argument on the notion that the GAL insufficiently
investigated the case and that allowing his testimony without the foundation of robust
investigation constitutes civil plain error. (R.L.'s Brief at 5-7.) See State v. Morgan, 153
Ohio St.3d 196,
2017-Ohio-7565, ¶ 37-40.
{¶ 15} The Ohio Rules of Evidence provide only one potential basis to exclude the
GAL's testimony:
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness' own
testimony.
Evid.R. 602. The GAL in this case presented evidence that he had personal knowledge of
N.L.'s situation. He testified that for the nearly two years in which he had been GAL for
N.L., he had visited regularly at the foster home and had seen him grow from a baby into a
No. 19AP-397 6
two-year-old toddler. (Tr. at 111-12.) The GAL testified that he had observed the
interactions, had observed that the foster parents' household was the only home N.L. had
ever known. Id. Based on that personal knowledge, he offered a lay opinion that N.L., a
two-year-old child, would not want to be removed from the only home and the only parents
he had ever known. (Tr. at 117.) The GAL did not attempt to opine about matters of which
he had no knowledge and testified clearly that he could provide no information about the
nature of N.L. and R.L.'s interaction because visits were so infrequent that he had never
had the opportunity to witness one. (Tr. at 112-13.) Nothing about the GAL's testimony
suggests that he should have been prohibited from testifying.
{¶ 16} Moreover, even if there had been some basis on which to exclude the GAL's
testimony, R.L. does not explain how he was unfairly prejudiced by it or why the failure to
exclude it would not have been harmless. Civ.R. 61; see Cahill v. Owens, 10th Dist. No.
15AP-925, 2016-Ohio-4972, ¶ 22, quoting Hayward v. Summa Health Sys.,
139 Ohio St.3d
238,
2014-Ohio-1913, ¶ 25 ("We examine whether 'without th[at] error[]' the factfinder
'probably would not have arrived at the same verdict.' "). R.L. himself plainly admitted that
"everything" the GAL said was "correct," that N.L. was thriving in foster care, that he and
his wife could not take care of N.L., and that he had not visited N.L. since December 2017.
(Tr. at 107, 132, 144, 152-57.) According to this evidence, admitting the GAL's testimony
was not prejudicial to R.L.'s chances of obtaining custody of his son, especially in the
circumstance as here where R.L. plainly admitted that the GAL's testimony was correct.
{¶ 17} We overrule R.L.'s first assignment of error.
B. Second Assignment of Error - Whether the Trial Court Erred in Granting
Permanent Custody of N.L. to FCCS
{¶ 18} When proceeding under R.C. 2151.414(B)(1), a decision to award permanent
custody requires the trial court to take a two-step approach. First, the trial court must find
whether any of the following apply:
(a) The child is not abandoned or orphaned, has not 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 has not
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 if, as
described in division (D)(1) of section 2151.413 of the Revised
Code, the child was previously in the temporary custody of an
No. 19AP-397 7
equivalent agency in another state, and the child cannot be
placed with either of the child's parents within a reasonable
time or should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child
who are able to take permanent custody.
(d) 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.
(e) The child or another child in the custody of the parent or
parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or another
state.
R.C. 2151.414(B)(1)(a) through (e).
{¶ 19} Once the trial court finds that at least one of these circumstances applies, the
trial court then must determine whether, "by clear and convincing evidence," the movant
has shown that a grant of permanent custody is in the "best interest of the child." R.C.
2151.414(B)(1). Clear and convincing evidence is that degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the facts to be established. Cross
v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. It is more than a mere
preponderance of the evidence but does not require proof beyond a reasonable doubt.
Id.
{¶ 20} In this case, R.L. forthrightly admitted that he had not visited N.L. since
Christmas 2017, a period of more than 16 months. (Tr. at 107.) This constitutes
presumptive abandonment. See R.C. 2151.011(C) ("[A] child shall be presumed abandoned
when the parents of the child have failed to visit or maintain contact with the child for more
than ninety days, regardless of whether the parents resume contact with the child after that
period of ninety days."); see also R.C. 2151.414(B)(1)(b). It is also undisputed that N.L. had
No. 19AP-397 8
been in the continuous custody of FCCS since July 10, 2017. (Tr. at 22.) R.C.
2151.414(B)(1)(d).1
{¶ 21} As an alternative to abandonment or length of time in FCCS' custody, the trial
court also discussed the alternative ground of R.C. 2151.414(B)(1)(a)—where (when neither
abandonment nor length of custody applies) "the child cannot be placed with either of the
child's parents within a reasonable time or should not be placed with the child's parents."
(May 24, 2019 Jgmt. Entry at 10.) When one of the factors listed in R.C. 2151.414(E) are
satisfied, "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). In
this case, the trial court found divisions (E)(1), (E)(4), and (E)(10) satisfied with respect to
R.L. (May 24, 2019 Jgmt. Entry at 10.) That is, the trial court found that N.L.'s parents had
continuously failed to remedy the conditions that caused N.L.'s removal in the first place,
had demonstrated a lack of commitment to N.L. by failing to attempt to remedy these
conditions, and had abandoned N.L. Id. We discern no error in these conclusions. Further,
R.L. candidly testified that neither he nor his wife could care for N.L. as of the hearing date
and the other evidence showed that in the two years the case had been pending neither
parent had made any significant effort to comply with the case plan or even visit their child.
(Tr. at 27-29, 34-35, 50, 83-86, 93-94, 99-101, 107, 113, 118-21, 129-32, 152-57.)
{¶ 22} The trial court did not err in finding the first portion of R.C. 2151.414(B)(1) to
be satisfied and therefore properly turned to consider whether it was "in the best interest
of the child to grant permanent custody of the child to the agency that filed the motion for
permanent custody." Id. R.C. 2151.414(D) sets forth relevant factors to consider in
determining the best interests of the child:
(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;
1Because FCCS did not seek to proceed under R.C. 2151.414(B)(1)(d), the trial court merely noted it as a
possible additional justification. (May 24, 2019 Jgmt. Entry at 10-11.)
No. 19AP-397 9
(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;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a) through (e). The additional factors referenced in R.C.
2151.414(D)(1)(e) are:
(7) The parent has been convicted of or pleaded guilty to one of
[a number of offenses apparently inapplicable in this case].
(8) The parent has repeatedly withheld medical treatment or
food from the child when the parent has the means to provide
the treatment or food, and, in the case of withheld medical
treatment, the parent withheld it for a purpose other than to
treat the physical or mental illness or defect of the child by
spiritual means through prayer alone in accordance with the
tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm
two or more times due to alcohol or drug abuse and has rejected
treatment two or more times or refused to participate in further
treatment two or more times after a case plan issued pursuant
to section 2151.412 of the Revised Code requiring treatment of
the parent was journalized as part of a dispositional order
issued with respect to the child or an order was issued by any
other court requiring treatment of the parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily
terminated with respect to a sibling of the child pursuant to this
section or section 2151.353 or 2151.415 of the Revised Code, or
under an existing or former law of this state, any other state, or
No. 19AP-397 10
the United States that is substantially equivalent to those
sections, and the parent has failed to provide clear and
convincing evidence to prove that, notwithstanding the prior
termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety
of the child.
R.C. 2151.414(E)(7) through (11).
{¶ 23} In reviewing a trial court's decision as to whether the statutory elements are
satisfied in a permanent custody case, we use a manifest weight of the evidence standard.
In re M.E.G., 10th Dist. No. 06AP-1256, 2007-Ohio-4308, ¶ 51; In re G.S., 10th Dist. No.
05AP-1321,
2006-Ohio-2530, ¶ 4. In the time since In re M.E.G. and In re G.S. were
decided, the Supreme Court of Ohio has "carefully distinguished the terms 'sufficiency' and
'weight,' " even in civil cases, "declaring that 'manifest weight' and 'legal sufficiency' are
'both quantitatively and qualitatively different.' " Eastley v. Volkman,
132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 10, in passim, quoting State v. Thompkins,
78 Ohio St.3d 380 (1997),
paragraph two of the syllabus.
Weight of the evidence concerns "the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. … Weight is not a
question of mathematics, but depends on its effect in inducing
belief."
(Emphasis sic.) Eastley at ¶ 12, quoting
Thompkins at 387; Black's Law Dictionary 1594
(6th Ed.1990).
1. Factor (D)(1)(a) – Relationship Between N.L. and Biological Father,
Siblings, and Foster Parents
{¶ 24} By R.L.'s own admission, he and N.L. do not have a relationship. (Tr. at 132.)
The GAL and caseworker testified that N.L. is thriving in the care of his foster parents (the
only parents he has ever known) whom he refers to as "momma" and "dada." (Tr. at 39,
111-12.) His younger sister is placed with the family also and he appears bonded to her
referring to her as "baby" and giving her kisses. (Tr. at 41.)
{¶ 25} The trial court's discussion on this factor shows it considered evidence that is
capable of inducing belief and that supports its conclusions that granting permanent
custody to FCCS is in the best interest of N.L. (May 24, 2019 Jgmt. Entry at 9.) In short,
No. 19AP-397 11
we find that the trial court's findings concerning what was in the best interest of N.L. were
not against the manifest weight of the evidence and we discuss them more fully as follows.
2. Factor (D)(1)(b) – The Wishes of N.L.
{¶ 26} N.L.'s very young age did not permit him to verbally articulate his wishes. (Tr.
at 117.) The record shows that the foster parents' household was the only home N.L. had
ever known. (Tr. at 111-12.) The GAL offered a reasonable lay opinion that N.L., a two-year-old child, would not want to be removed from the only home and the only parents he
has ever known. (Tr. at 117.) The trial court accurately noted that N.L. was too young to
articulate his wishes. (May 24, 2019 Jgmt. Entry at 9.) Nevertheless it noted that, in light
of the GAL's testimony and the other facts of the case, it was reasonable to conclude that
N.L.'s wish, could it have been articulated, would have been to stay with his foster parents
and be adopted. Id. The trial court's findings on this factor are not against the manifest
weight of the evidence.
3. Factor (D)(1)(c) – N.L.'s Custody History
{¶ 27} It is undisputed that N.L. was in the custody of the agency from July 10, 2017,
through the time of hearing in May 2019. (Tr. at 22.) That is "twelve or more months of a
consecutive twenty-two-month period," as contemplated in R.C. 2151.414(D)(1)(c).
{¶ 28} It was therefore not against the manifest weight of the evidence for the trial
court to have concluded that the record clearly and convincingly showed that N.L.'s history
with the agency militated in favor of granting the motion for permanent custody.
4. Factor (D)(1)(d) – N.L.'s Need for Secure Placement and Whether
that can be Achieved Without Granting Custody to FCCS
{¶ 29} N.L., who was born in April 2017, and who was taken directly from the
neonatal intensive care unit to his foster home, had been in agency custody his entire life at
the time of the hearing in May of 2019. (Tr. at 16-17, 22, 39.) Neither of his parents showed
any interest in completing virtually any aspect of the case plan that might have resulted in
reunification. (Tr. at 50, 83-84, 93-94.) Both struggled with what clearly appeared to be
drug addiction. (Tr. at 20-21.) The evidence also showed that, at the time of the hearing,
N.L. was in a foster home with a family that wanted to adopt him permanently and he was
thriving in that environment. (Tr. at 39-41, 111-12.)
{¶ 30} The trial court stated the evidence on this factor supporting its finding that
N.L. was in need of legally secure permanent placement that could not be achieved without
No. 19AP-397 12
granting permanent custody to FCCS. We note from the record and the domestic court's
decision that this conclusion was especially accurate in light of the fact that N.L.'s biological
parents were not making sufficient progress to alleviate the symptoms of their apparent
drug addictions and resulting inadequacies in their ability to parent N.L. Thus, this was
not against the manifest weight of the evidence. (May 24, 2019 Jgmt. Entry at 9.)
5. Factor (E)(7) – Convictions of Parents
{¶ 31} There was no evidence that any parent committed any of the relevant offenses
in this case. Thus, the trial court correctly did not discuss this factor. (May 24, 2019 Jgmt.
Entry at 9.)
6. Factor (E)(8) – Withholding Food or Medical Treatment
{¶ 32} Our review of the record shows that this factor was inapplicable and that the
trial court correctly did not discuss it. (May 24, 2019 Jgmt. Entry at 9.)
7. Factor (E)(9) – Risk of Harm from Drug or Alcohol Abuse
{¶ 33} There was evidence that both parents used drugs and had never engaged or
even registered for drug screening. (Tr. at 29, 34, 118-21.) Yet, there was no evidence that
R.L. (who has never had custody of N.L.) "placed [N.L.] at substantial risk of harm two or
more times due to alcohol or drug abuse." R.C. 2151.414(E)(9). Consequently, the trial
court was correct to have failed to find this factor. (May 24, 2019 Jgmt. Entry at 9.)
8. Factor (E)(10) – Whether N.L. has been Abandoned
{¶ 34} R.L. abandoned N.L. when he failed to visit him for a period that was, at the
time of trial, more than 16 months. (Tr. at 107.) R.C. 2151.011(C). Although the trial court
was technically incorrect in stating that no evidence was presented on any of the (E)(7)
through (11) factors, it elsewhere discussed abandonment and correctly determined that
N.L. was abandoned. (May 24, 2019 Jgmt. Entry at 8.) Thus, the trial court's failure to
repeat that finding with respect to division (E)(10) of R.C. 2151.414 is at worst harmless
oversight. Civ.R. 61.
9. Factor (E)(11) – Whether Parents have had Parental Rights
Involuntarily Terminated with Respect to a Sibling of N.L.
{¶ 35} There was evidence at trial that both A.S. and R.L. have several other
children, none of whom reside with them, and evidence was not introduced to prove that
their parental rights had been involuntarily terminated. (Tr. at 44-49, 109.) Thus, the trial
court did not err in failing to address this issue.
No. 19AP-397 13
10. Overall Weighing of the Factors and the Best Interest of N.L.
{¶ 36} At the time of permanent custody hearing, R.L. had not seen his son for more
than 16 months. Visitations were permitted. All he had to do was telephone FCCS and
schedule one. But he did not. He never submitted himself for a single drug screen (did not
at any time even sign up to be screened). Nor did R.L. make any significant effort to
complete any other case plan objective. In fact, he candidly admitted that he could not take
custody of N.L. as of the hearing date and that N.L. was better off with his foster family.
N.L.'s mother, A.S., had also gone many months without visiting N.L., also never even
signed up for drug screens, and also never completed any of the case plan objectives. She
also did not appear for the permanent custody hearing and did not in any way substantiate
her alleged medical excuse for failing to appear.
{¶ 37} Under these circumstances, it was not against the manifest weight of the
evidence for the trial court to have concluded that, by clear and convincing proof, awarding
permanent custody to FCCS was the appropriate outcome. Not only did the trial court not
err significantly in its recitation on any individual factor, it also did not err in weighing them
to reach the ultimate result. Accordingly, R.L.'s second assignment of error is overruled.
IV. CONCLUSION
{¶ 38} Trial counsel did not object to the introduction of testimony by the GAL and
R.L. essentially adopted that testimony, stating that "everything" the GAL said was
"correct." There was no plausible basis for excluding the GAL's testimony and no potential
for unfair prejudice resulted from its introduction. The trial court did not err prejudicially
in considering and weighing the factors set forth in R.C. 2151.414 and its resulting
conclusions were not against the manifest weight of the evidence. We affirm the judgment
of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch in the granting of permanent custody to FCCS.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
