[Cite as In re E.B.,
2025-Ohio-1999.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
E.B. et al. : No. 24AP-474
(C.P.C. No. 16JU-15064)
(R.B., Father, :
(REGULAR CALENDAR)
Appellant). :
In the Matter of: :
E.B. et al. : No. 24AP-490
(C.P.C. No. 16JU-15064)
(M.S., Mother, :
(REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on June 5, 2025
On brief: David K. Greer for appellant R.B.
On brief: William T. Cramer for appellant M.S.
On brief: Jessica M. Ismond for Franklin County Children
Services.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
EDELSTEIN, J.
{¶ 1} Appellants, R.B. (father of E.B. and B.B.) and M.S. (mother of E.B. and B.B.),
appeal from a decision and judgment entry of the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch, terminating their parental rights and
Nos. 24AP-474 & 24AP-490 2
placing the children in the permanent custody of appellee, Franklin County Children
Services (“FCCS”). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} This case involves FCCS’s request for permanent custody of E.B., who was
born on September 28, 2010, and B.B., who was born on March 6, 2013. Originally, FCCS
filed a complaint on June 28, 2016. The case expired by operation of law, and FCCS filed a
refiled complaint on September 21, 2016. The second complaint again expired by operation
of law. FCCS then filed a third and final complaint on December 19, 2016, alleging E.B. and
B.B. to be abused, neglected, and dependent children. The third complaint alleged the
children were present when mother’s boyfriend was selling heroin from the kitchen of their
home. At the time of the third complaint, father’s whereabouts were unknown.
{¶ 3} The trial court issued a temporary order of custody (“TOC”) to father on
December 20, 2016. The trial court ordered father to complete random drug screens. At a
February 6, 2017 hearing, the trial court adjudicated E.B. and B.B. to be abused,
journalizing the finding in a February 10, 2017 judgment entry. The trial court ordered the
complaint to be amended to reflect that father was at Alvis House, a residential substance
abuse treatment facility, at the time of the filing. In the judgment entry, the trial court
granted father temporary court commitment (“TCC”) of the children and ordered FCCS to
provide protective supervision. Thereafter, the trial court approved and adopted a case
plan for mother and father.
{¶ 4} On April 6, 2017, FCCS filed a shelter care motion to terminate father’s TCC.
The motion alleged father was misusing opioids, kept marijuana in his bedroom, and was
buying opioids for mother. Additionally, the motion alleged father was slumped over and
passed out while the children were running around and that he was not complying with the
required drug screens. On July 10, 2017, the trial court dismissed the motion for a change
in circumstances.
{¶ 5} FCCS filed another motion to modify orders on October 2, 2017, alleging
father was allowing the children to stay with their maternal great-grandmother where
mother also lived. The motion alleged mother had “choked out” the children. (Oct. 10,
Nos. 24AP-474 & 24AP-490 3
2017 Shelter Care Mot. at 2.) On October 23, 2017, the trial court ordered that mother’s
visits be supervised and for father to complete a drug screen.
{¶ 6} On November 9, 2017, FCCS filed another shelter care motion, this time
requesting TCC of the children. The motion alleged father appeared to be under the
influence during a visit with the FCCS caseworker, had not completed any drug screens in
recent weeks, and was allowing the children to have unsupervised visits with mother. The
trial court granted FCCS a TOC of the children on November 14, 2017 and ordered the
parents’ visits to be supervised.
{¶ 7} A few weeks later, on December 11, 2017, the trial court granted TCC of the
children to J.T., the children’s maternal great-grandmother. On January 22, 2019, after
two extensions of TCC in February and August of 2018, FCCS filed a motion for legal
custody of the children to J.T. The magistrate conducted a hearing on March 11, 2019 and
awarded legal custody to J.T. in a March 20, 2019 decision. Father objected to the
magistrate’s decision, and the trial court denied the objections and adopted the magistrate’s
decision in an August 13, 2019 decision and entry.
{¶ 8} The children lived with J.T. until December 18, 2021 when J.T. died. On
January 10, 2022, T.T., the children’s second cousin, filed a motion for custody. The trial
court awarded T.T. a TOC on January 14, 2022. Mother filed her own motion for custody
on February 14, 2022. The trial court conducted a preliminary hearing on February 16,
2022, maintaining the TOC to T.T. and giving FCCS a temporary order of protective
supervision.
{¶ 9} On April 1, 2022, FCCS filed a shelter care motion alleging the children no
longer wanted to live with T.T. T.T. agreed to allow FCCS temporary custody of the
children. FCCS could not identify any additional kinship care placements, and the children
were placed in foster care. The trial court awarded a TOC of the children to FCCS on April 5,
2022 and ordered the parents’ visits to be supervised. On April 19, 2022, FCCS filed
findings of fact in support of its reasonable efforts toward reunification. The trial court then
conducted a hearing before a magistrate on August 31, 2022 and granted TCC to FCCS. The
trial court journalized the TCC in a September 19, 2022 entry. A new case plan for father
and mother was filed on September 8, 2022.
Nos. 24AP-474 & 24AP-490 4
{¶ 10} FCCS then filed a motion for permanent court commitment (“PCC”) of the
children on March 2, 2023. Following a May 16, 2023 hearing, the trial court extended the
TCC for six months. (June 16, 2023 Jgmt. Entry.) On August 8, 2023, FCCS filed findings
of fact in support of its reasonable efforts to implement a permanency plan. Subsequently,
on August 30, 2023, FCCS filed a second motion for PCC. The second motion additionally
alleged the children had been in agency custody for 12 or more months of a consecutive 22-
month period.
{¶ 11} Father filed a motion for an in-camera interview of the children. (April 18,
2024 Mot.) During the in-camera interview, E.B. stated she wanted to be adopted, but B.B.
said he wanted to be reunified with his father. In response to the different wishes expressed
by the children, the trial court appointed separate counsel for each child. (May 29, 2024
Tr. at 84-86.)
{¶ 12} Ultimately, the matter came for trial on the PCC motion on May 28 and 29,
2024. At the beginning of trial, father’s counsel requested another in-camera interview of
the children, but the trial court denied the request. (May 28, 2024 Tr. at 8-12.) Mother
waived her presence at the hearing due to her incarceration.
{¶ 13} Father testified that he was living in his truck at the time of trial. (May 28,
2024 Tr. at 26.) Father stated he has two other children in addition to E.B. and B.B. who
do not reside with him. (May 28, 2024 Tr. at 27.) Father testified FCCS had given him a
case plan that required him to obtain housing, complete an alcohol and drug assessment,
attend parenting classes, complete a mental health evaluation, and complete random drug
screens. (May 28, 2024 Tr. at 31-32.) Father stated he completed parenting classes and a
mental health assessment, though he was unsure whether he had completed all
recommendations accompanying the mental health assessment. (May 28, 2024 Tr. at 33-
34.) From the mental health assessment, father was diagnosed with severe depression and
severe anxiety disorder. (May 28, 2024 Tr. at 35.) Father was prescribed medication for
his anxiety and depression but never filled the prescription. (May 28, 2024 Tr. at 35.) He
testified he spent time in an in-patient addiction recovery program from April to July 2023
and participated in some outpatient addiction recovery programming until his insurance
would no longer cover the treatment. (May 28, 2024 Tr. at 35-37.) Father testified he has
not been diagnosed with opioid use disorder but he received a vivitrol shot for opioid
Nos. 24AP-474 & 24AP-490 5
treatment in August 2023. (May 28, 2024 Tr. at 37-38.) Father said the FCCS caseworker
reminded him throughout the pendency of the case that he needed to complete his mental
health treatment but that he has not attended the recommended follow-up appointments.
(May 28, 2024 Tr. at 38-39.) When asked whether he had ever taken illegal substances to
cope with mental health or emotional problems, father responded “I plead the Fifth.”
(May 28, 2024 Tr. at 39.)
{¶ 14} Father testified the last time he completed a drug screen was in September
2023 when he called the FCCS caseworker to ask for help finding housing. (May 28, 2024
Tr. at 44-45.) The caseworker provided father the phone number for a homeless shelter
where father said he was placed on a waiting list. (May 28, 2024 Tr. at 45.) Father said he
had not completed a drug screen since September because he spends every day trying to
figure out how to work or get money and find a place to live. (May 28, 2024 Tr. at 46.)
When FCCS suggested that father could complete a hair follicle test instead of random drug
screens, father said he refused. (May 28, 2024 Tr. at 46-47.) Father testified the FCCS
caseworker tried to work with him to reschedule drug screens at times that were better for
his schedule, but the caseworker was not able to offer anything that worked for him.
(May 28, 2024 Tr. at 47-48.)
{¶ 15} Father was working for a friend’s construction company and his brother’s
home renovation company earning approximately $1,600 per month. (May 28, 2024 Tr.
at 48-49.) He testified he has applied for other positions, but his criminal record has
prevented him from getting a different job. (May 28, 2024 Tr. at 51.) Father said he
received referrals to housing assistance from FCCS but that he did not qualify for assistance
because “they said that [he] would have to have proof of custody of [his] kids and Social
Security cards and birth certificates.” (May 28, 2024 Tr. at 52-53.) FCCS provided father
with low-income housing resources and a list of second-chance housing, but father said of
the 17 potential places he contacted, 11 denied his application and 6 had phone numbers
that were out of service. (May 28, 2024 Tr. at 55-56.) Ten days prior to the start of trial,
Father said he applied for housing and was waiting to hear whether his application would
be approved. (May 28, 2024 Tr. at 57-58.) Father said his criminal record was the biggest
barrier to obtaining housing, and he has not had housing since he was released from prison
in 2016. (May 28, 2024 Tr. at 58.) He acknowledged that if the children were returned to
Nos. 24AP-474 & 24AP-490 6
him the day of the hearing, they would not have a home to go to. (May 28, 2024 Tr. at 66.)
Additionally, father stated he believed both of his children wanted to live with him if he
could obtain housing. (May 28, 2024 Tr. at 77.)
{¶ 16} Father testified he regularly attends visits with the children at the agency for
two hours a week. (May 28, 2024 Tr. at 63.) He brings games to play with the children and
they go outside to throw a football together. (May 28, 2024 Tr. at 64.) Father described
the children as happy to see him, and he testified he has telephone contact with them every
day. (May 28, 2024 Tr. at 64.) He also attends all of B.B.’s sports games. (May 28, 2024
Tr. at 64.) Father did not know where the children attended school because, he said, no
one is allowed to tell him. (May 28, 2024 Tr. at 65.) Father was not aware of any education
assistance the children needed or were receiving. (May 28, 2024 Tr. at 65.)
{¶ 17} Kiana Wade, a caseworker at FCCS, testified she has been assigned to E.B.’s
and B.B.’s case since February 2022. (May 28, 2024 Tr. at 82.) Ms. Wade testified the
children were previously in the custody of their maternal great-grandmother until her death
in December 2021, at which time the children were placed in kinship care with a maternal
cousin. (May 28, 2024 Tr. at 83.) FCCS eventually received custody of the children in April
2022 after the children refused to stay in the kinship care placement. (May 28, 2024 Tr. at
83.) Additionally, Ms. Wade testified FCCS first became involved with the children in 2016
when they were adjudicated abused. (May 28, 2024 Tr. at 84.)
{¶ 18} Ms. Wade testified that father’s case plan required him to complete random
drug screens, complete an alcohol and drug assessment and follow all recommendations,
complete a mental health assessment and follow all recommendations, complete parenting
classes and follow all recommendations, complete a domestic violence assessment and
follow all recommendations, and obtain and maintain stable housing and employment.
(May 28, 2024 Tr. at 86.) Ms. Wade said the agency no longer had concerns about domestic
violence and did not require father to complete a domestic violence assessment. (May 28,
2024 Tr. at 93.) Ms. Wade testified that father completed the parenting classes and the
mental health assessment but he did not complete the recommendations from the mental
health assessment. (May 28, 2024 Tr. at 86-87.) Ms. Wade said she repeatedly reminded
father, both at meetings and by text message, that he needed to complete the
recommendations of the mental health assessment. (May 28, 2024 Tr. at 87.) Ms. Wade
Nos. 24AP-474 & 24AP-490 7
testified she had not observed any mental health concerns during her visits with father.
(May 29, 2024 Tr. at 16.)
{¶ 19} Additionally, Ms. Wade stated that father completed his alcohol and drug
assessment but had not completed the follow up recommendations of outpatient treatment.
(May 28, 2024 Tr. at 88-90.) Ms. Wade testified that father was discharged from outpatient
treatment due to lack of contact and father never told her he could not complete treatment
because of an issue with his insurance. (May 28, 2024 Tr. at 90.) At her meetings with
father, Ms. Wade said she repeatedly discussed with him the need to complete the alcohol
and drug treatment recommendations and that she provided him with a self-referral list of
treatment options. (May 28, 2024 Tr. at 91.) Ms. Wade testified father has indicated
transportation and his work schedule are a barrier to completing random drug screens and
she has offered to reschedule appointments for him and provided him with bus passes when
requested. (May 28, 2024 Tr. at 92-93.)
{¶ 20} Ms. Wade testified she had been able to meet with father at various job sites.
(May 28, 2024 Tr. at 93-94.) Father was working construction jobs for his brother and a
friend, and Ms. Wade said the agency had linked father with a community service worker
to help him find other employment. (May 28, 2024 Tr. at 94.) Ms. Wade testified that
father had not been able to provide proof of income and he did not have housing. (May 28,
2024 Tr. at 95.) Ms. Wade said she attempted to assist father with finding housing by
referring him three different times to Family to Family but Family to Family had “issues
maintaining . . . contact” with father and had to close his file as a result. (May 28, 2024 Tr.
at 96.) In addition to the referrals to Family to Family, Ms. Wade said she provided father
with a list of various housing resources for Second Chance Housing and attempted to search
for housing for him, and the community service worker provided father with a list of private
landlords. (May 28, 2024 Tr. at 96.) Ms. Wade testified she provided father with the
Second Chance Housing referral on three separate occasions and had helped father locate
the information in his email. (May 28, 2024 Tr. at 97.)
{¶ 21} Ms. Wade testified that the community service worker provided father a list
of housing options but father reported he was told he needed to have guardianship of his
children in order to qualify for those housing options. (May 28, 2024 Tr. at 97.) In
response, Ms. Wade said the community service worker provided father a list of private
Nos. 24AP-474 & 24AP-490 8
landlords that did not impose the same proof of guardianship requirement. (May 28, 2024
Tr. at 97.) Additionally, Ms. Wade said she explored the possibility of providing father with
a housing voucher, but FCCS ultimately was not able to do so because housing was not
father’s only barrier to reunification. (May 28, 2024 Tr. at 97-98.) Because father has not
consistently completed drug screens or followed through on his mental health and alcohol
and drug treatment recommendations, Ms. Wade said the agency would not provide him
with a housing voucher. (May 28, 2024 Tr. at 98.)
{¶ 22} Ms. Wade testified father never asked her for the children’s social security
cards to assist his housing search. (May 29, 2024 Tr. at 18.) It was Ms. Wade’s
understanding that the conversation about needing the children’s social security cards
occurred between father and the community service worker, though father later told Ms.
Wade about this conversation. (May 29, 2024 Tr. at 54-55.) Ms. Wade also testified that
this requirement related only to one of the housing authorities to which father was referred.
(May 29, 2024 Tr. at 60.) Even if father obtained housing, Ms. Wade testified she still had
other concerns that father would not be able to meet the children’s needs. (May 29, 2024
Tr. at 69.)
{¶ 23} Further, Ms. Wade testified father consistently attended visits with the
children. (May 29, 2024 Tr. at 7.) She described father as “always engaged,” bringing an
activity or snacks for the children, and giving appropriate parental advice to the children.
(May 29, 2024 Tr. at 7.) In between the scheduled visits, Ms. Wade said father maintained
contact with the children through text messages, phone calls, and attending B.B.’s sporting
events. (May 29, 2024 Tr. at 7.) Ms. Wade described B.B. as “very bonded” to father, and
said father and E.B. had a level of bonding that had significantly improved. (May 29, 2024
Tr. at 31.)
{¶ 24} Ms. Wade testified mother had one visit with the children during her
incarceration in December 2023. (May 29, 2024 Tr. at 8.) Ms. Wade said the visit “went
very well,” and the children were very excited to see mother. (May 29, 2024 Tr. at 8.)
However, Ms. Wade said that, after the visit, mother reported she did not want the children
to be transported to the correctional facility or for the children to see her there. (May 29,
2024 Tr. at 8.) Mother maintained regular contact with the children through phone calls.
(May 29, 2024 Tr. at 8.)
Nos. 24AP-474 & 24AP-490 9
{¶ 25} After being placed together in multiple foster homes for over a year, Ms.
Wade said the children were eventually placed in separate foster homes due to “tension and
resentment” between the children. (May 29, 2024 Tr. at 10.) Ms. Wade testified B.B. was
“doing great” in his current foster home, his behavior had improved, and he was doing well
in school. (May 29, 2024 Tr. at 10.) B.B.’s foster placement at the time of trial was a
potential adoptive home. (May 29, 2024 Tr. at 11.) Additionally, Ms. Wade said E.B.’s
behavior had improved in her current foster home. (May 29, 2024 Tr. at 10.) E.B. had
some struggles in school, but Ms. Wade said her foster parent advocated for her. (May 29,
2024 Tr. at 10.) Ms. Wade testified both children have been diagnosed with attention deficit
hyperactivity disorder (“ADHD”), and E.B. also has oppositional defiance disorder
(“ODD”). (May 29, 2024 Tr. at 12-13.) Both children also received weekly counseling.
(May 29, 2024 Tr. at 13-14.) Ms. Wade testified father never asked where the children
attend school and the information could have been provided to him if he had asked.
(May 29, 2024 Tr. at 14.)
{¶ 26} Ms. Wade testified the children needed a legally secure permanent placement
and such placement could not occur without a grant of PCC to the agency. (May 29, 2024
Tr. at 14.) Ms. Wade said father was unable to provide permanency and stability due to his
lack of housing and failure to address the case plan concerns. (May 29, 2024 Tr. at 14.) Ms.
Wade testified she did not believe father could meet the children’s basic needs. (May 29,
2024 Tr. at 64.) Ultimately, Ms. Wade asked the trial court to grant the agency’s motion
for permanent custody. (May 29, 2024 Tr. at 15.)
{¶ 27} The final witness at trial was Susan Christoff, the guardian ad litem for the
children. (May 29, 2024 Tr. at 70-71.) Ms. Christoff testified both E.B. and B.B. were
comfortable in their current foster placements. (May 29, 2024 Tr. at 73.) She also said the
children seemed happy at visits with father and had an “easy relationship” when they were
all together. (May 29, 2024 Tr. at 75.) Ms. Christoff testified the children were bonded to
father. (May 29, 2024 Tr. at 75.) She also said they were bonded to their current foster
parents. (May 29, 2024 Tr. at 80.)
{¶ 28} Ms. Christoff described the children’s special needs, stating both children
were seeing counselors and had medication for ADHD, received counseling for past
Nos. 24AP-474 & 24AP-490 10
concerns of trauma, and were in treatment for ODD. (May 29, 2024 Tr. at 77.) Additionally,
both children have educational assistance plans at school. (May 29, 2024 Tr. at 77.)
{¶ 29} Ms. Christoff testified the children are able to understand the nature of the
proceedings. (May 29, 2024 Tr. at 77.) She said E.B. most recently expressed that “she is
okay staying with her foster parent, and she has no wish to be adopted[,] [and] . . . she
would be okay going with her father if he had a home.” (May 29, 2024 Tr. at 78.) As to
B.B., Ms. Christoff testified “he’s okay staying with his foster parents, but he also would like
to be with his father if his father had housing.” (May 29, 2024 Tr. at 79.) B.B.’s current
foster home was a prospective adoptive placement. (May 29, 2024 Tr. at 79.) Ms. Christoff
said she had spoken with father about the need for housing but he did not specifically
express to her the barriers he was encountering in his search for housing. (May 29, 2024
Tr. at 78-79.)
{¶ 30} Ms. Christoff also explained the children’s wishes had evolved throughout the
pendency of the case. (May 29, 2024 Tr. at 82-83.) When she first became involved with
the children, Ms. Christoff said both children expressed they wanted to stay with their
parents. (May 29, 2024 Tr. at 82.) Once the children were placed in separate foster homes,
Ms. Christoff said they both “were okay staying where they were and they would be okay
being with their father as long as the father had housing and as [E.B.] had said housing and
he had employment, and you know, was clean and other things in the house.” (May 29,
2024 Tr. at 83.) E.B. also expressed a desire to live with mother if mother were to be
released from prison “as long as her mom had an opportunity to get her things together.”
(May 29, 2024 Tr. at 84.) Ms. Christoff testified E.B.’s wishes changed as she realized
mother would not be released from prison early and began to work on her relationship with
father. (May 29, 2024 Tr. at 84.) Most recently, a month prior to trial, Ms. Christoff said
E.B. expressed “she would like to stay with her foster - - her current foster home and
possibly be adopted by her foster mother that would be her wish.” (May 29, 2024 Tr. at
84.) Though E.B. had initially expressed opposition to adoption, she had most recently
expressed that “she might be open to being adopted by her current foster mother.” (May
29, 2024 Tr. at 85.) Ms. Christoff said the children have had “a realization” over the
pendency of the case of “what it is to be in a secure house with caring adults . . . they can
rely on” for their daily needs. (May 29, 2024 Tr. at 104.)
Nos. 24AP-474 & 24AP-490 11
{¶ 31} Ultimately, Ms. Christoff testified it was her recommendation that the court
grant the permanent custody motion. (May 29, 2024 Tr. at 79.) She believed it was in the
best interest of the children to grant the permanent custody motion because the children
needed a legally secure placement. (May 29, 2024 Tr. at 79-80.) Ms. Christoff did not
believe either parent would be able to provide the children with stability and permanency
within a reasonable time. (May 29, 2024 Tr. at 80.) She said it was “not an easy decision”
because the children were close to father, but father is not able to provide the children with
stability or provide for their basic needs. (May 29, 2024 Tr. at 80-81.)
{¶ 32} In a July 31, 2024 decision and judgment entry, the trial court granted
permanent custody of the children to FCCS. The trial court determined termination of
father’s and mother’s parental rights was in the best interest of the children. Father and
mother timely appeal.
II. Assignments of Error
{¶ 33} Father and mother each raise the following three identical assignments of
error for our review:
[I.] The trial court prematurely terminated the father’s parental
rights when the agency failed to exercise reasonable efforts to
assist him with housing.
[II.] The trial court denied the father a fair trial by admitting,
over the mother’s objection, unreliable hearsay testimony of
the caseworker that, based on records “kept as part of the
agency’s ordinary course of business,” he nodded off during a
visit due to being under the influence.
[III.] The trial court erred by not fully considering the wishes
of the children, especially E.B. Specifically, the trial court
should have inquired or held a hearing as to E.B.’s wishes after
the CASA guardian ad litem testified that she did not want to
be adopted. The father had a due process right to this
determination, for a full and fair assessment of her best
interest.
We note that mother concedes “she is not a viable placement option due to her ongoing
incarceration and resulting inability to work the case plan.” (Mother’s Brief at 22.) Thus,
mother’s assignments of error relate to the termination of father’s parental rights.
Nos. 24AP-474 & 24AP-490 12
III. First Assignment of Error–Reasonable Efforts
{¶ 34} In their first assignment of error, father and mother argue the trial court
erred in terminating father’s parental rights because FCCS did not exercise reasonable
efforts to assist father with housing.
{¶ 35} Parents have a constitutionally protected fundamental interest in the care,
custody, and control of their children. In re B.C., 2014-Ohio-4558, ¶ 19, quoting Troxel v.
Granville,
530 U.S. 57, 65 (2000); In re Murray,
52 Ohio St.3d 155, 157 (1990) (recognizing
the right to raise one’s children is a basic and essential civil right). However, these rights
are not absolute, and a parent’s natural rights are always subject to the ultimate welfare of
the child. In re Cunningham,
59 Ohio St.2d 100, 106 (1979); In re D.A.,
2007-Ohio-1105,
¶ 11. In certain circumstances, therefore, the state may terminate the parental rights of
natural parents when such termination is in the child’s best interest. D.A. at ¶ 11, citing
Cunningham at 105. Because termination of parental rights “has been described as ‘the
family law equivalent of the death penalty in a criminal case,’ ” parents “ ‘must be afforded
every procedural and substantive protection the law allows.’ ” In re Hayes,
79 Ohio St.3d
46, 48 (1997), quoting In re Smith,
77 Ohio App.3d 1, 16 (6th Dist. 1991).
{¶ 36} R.C. 2151.414 governs the termination of parental rights. In re K.H., 2008-
Ohio-4825, ¶ 42. Pursuant to R.C. 2151.414(B)(1), a trial court may grant permanent
custody of a child to a children services agency if the court determines, by clear and
convincing evidence, that: (1) one of the five factors enumerated in R.C. 2151.414(B)(1)(a)
through (e) applies; and (2) it is in the best interest of the child to do so. In re Z.C., 2023-
Ohio-4703, ¶ 7. Clear and convincing evidence is the measure or degree of proof “which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus. Clear and convincing evidence requires more than a mere preponderance of the
evidence but does not require proof beyond a reasonable doubt as in criminal cases.
Id.
{¶ 37} An appellate court will not reverse a trial court’s determination on a
permanent custody motion unless it is not supported by the sufficiency of the evidence or
it is against the manifest weight of the evidence, depending on the nature of the arguments
presented by the parties. See Z.C. at ¶ 18 (rejecting use of the abuse of discretion standard
Nos. 24AP-474 & 24AP-490 13
in reviewing permanent custody determinations under R.C. 2151.414 and clarifying that
separate standards for sufficiency and manifest weight of the evidence apply instead). The
sufficiency of the evidence standard tests the adequacy of the evidence, and a court of
appeals should affirm a trial court when the evidence, if believed, is legally sufficient to
support the verdict as a matter of law. Z.C. at ¶ 13, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). The manifest weight of the evidence standard concerns the effect of the
evidence in inducing belief. Z.C. at ¶ 13, citing
Thompkins at 387. “When reviewing for
manifest weight, the appellate court must weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether, in resolving conflicts in
the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered.” Z.C. at ¶ 14, citing
Eastley v. Volkman,
2012-Ohio-2179, ¶ 20. Furthermore, “although the phrase ‘some
competent, credible evidence’ can be helpful in describing the reviewing court’s deferential
role in the manifest-weight analysis, it should not be used as a substitute for the separate
sufficiency and manifest-weight analyses appropriate for permanent-custody
determinations.” Id. at ¶ 15.
{¶ 38} R.C. 2151.419(A)(1) provides that, at specified hearings, the juvenile court
must determine whether a children services agency “has made reasonable efforts to prevent
the removal of the child from the child’s home, to eliminate the continued removal of the
child from the child’s home, or to make it possible for the child to return safely home.” The
statute applies to “adjudicatory, emergency, detention, and temporary-disposition
hearings, and dispositional hearings for abused, neglected, or dependent children, all of
which occur prior to a decision transferring permanent custody to the state.” In re C.F.,
2007-Ohio-1104, ¶ 41. “Because [R.C. 2151.419(A)(1)] makes no reference to a hearing on
a permanent custody motion, it does not apply to motions for permanent custody brought
pursuant to R.C. 2151.413, or to hearings held on such motions pursuant to R.C. 2151.414.”
In re A.P.,
2023-Ohio-2463, ¶ 16 (10th Dist.), citing C.F. at ¶ 41.
{¶ 39} However, a public children services agency may not file a motion for
permanent custody “[i]f reasonable efforts to return the child to the child’s home are
required under [R.C. 2151.419, and] the agency has not provided the services required by
the case plan to the parents of the child or the child to ensure the safe return of the child to
Nos. 24AP-474 & 24AP-490 14
the child’s home.” R.C. 2151.413(D)(3)(b). Thus, “[i]f the agency has not established that
reasonable efforts have been made prior to the hearing on a motion for permanent custody,
then it must demonstrate such efforts at that time.” C.F. at ¶ 43; In re N.M., 2021-Ohio-
2080, ¶ 58 (10th Dist.) (“[T]he issue of whether the agency made reasonable efforts at
reunification only arises at the hearing on a motion for permanent custody if the agency has
not established that reasonable efforts were made prior to the hearing.”). However, where
the trial court finds prior to the permanent custody hearing that the agency made
reasonable efforts to reunify the family during the proceedings, the trial court need not
make a finding of reasonable efforts in its permanent custody decision. A.P. at ¶ 17, citing
In re J.H., 2021-Ohio-807, ¶ 65 (10th Dist.).
{¶ 40} Here, prior to the permanent custody hearing, the trial court found FCCS had
made reasonable efforts toward reunification when it granted FCCS temporary custody and
again when it extended temporary custody. Because the trial court’s September 19, 2022
judgment entry awarding temporary custody to FCCS and June 16, 2023 judgment entry
extending temporary custody satisfied R.C. 2151.419(A)(1)’s requirement of finding
reasonable efforts, it was not necessary for the trial court to make a finding of reasonable
efforts in the permanent custody decision. A.P., 2023-Ohio-2463, at ¶ 18.
{¶ 41} Though it was unnecessary for the purpose of granting permanent custody,
the trial court made another finding of reasonable efforts in its permanent custody decision.
Father’s and mother’s challenge to this finding is unavailing because “ ‘ “[w]e cannot reverse
a judgment based on an alleged error in a finding that the trial court never had to make in
the first place.” ’ ” Id. at ¶ 19, quoting In re Bil.I., 2023-Ohio-434, ¶ 30 (10th Dist.), quoting
In re J.H. at ¶ 66. Additionally, father and mother could have challenged the trial court’s
earlier reasonable efforts findings by timely objection or appeal but did not do so. For this
additional reason, father’s and mother’s argument lacks merit.
Id., citing Bil.I at ¶ 30
(“Because appellants failed to object to or appeal the earlier reasonable efforts findings at
the time they were made, they cannot challenge those findings now [on appeal].”).
{¶ 42} Father and mother additionally argue that even if the trial court was not
required to make a finding of reasonable efforts under R.C. 2151.419(A)(1), the trial court
nonetheless was required to determine whether FCCS engaged in reasonable efforts before
determining the children cannot or should not be placed with either parent in a reasonable
Nos. 24AP-474 & 24AP-490 15
time under R.C. 2151.414(B)(1)(a) and 2151.414(E)(1). “To the extent that the trial court
relies on R.C. 2151.414(E)(1) at a permanency hearing, the court must examine the
‘reasonable case planning and diligent efforts by the agency to assist the parents’ when
considering whether the child cannot or should not be placed with the parent within a
reasonable time.” C.F., 2007-Ohio-1104, at ¶ 42; In re D.D.,
2023-Ohio-4147, ¶ 23 (10th
Dist.). Father and mother argue FCCS did not engage in reasonable efforts to assist father
with housing.
{¶ 43} “Reasonable efforts” requires a children’s services agency to act diligently and
provide appropriate services to the family in an effort toward reunification. D.D. at ¶ 24,
quoting In re H.M.K., 2013-Ohio-4317, ¶ 95 (3d Dist.), quoting In re D.A.,
2012-Ohio-1104,
¶ 30 (6th Dist.). However, “[r]easonable efforts do not equate to all available efforts”
because there could “always be an argument that one more additional service, no matter
how remote, may have made reunification possible.” (Internal quotations and citations
omitted.) Id. at ¶ 25, quoting In re B.F.,
2021-Ohio-4251, ¶ 11 (3d Dist.). Whether
reasonable efforts were made depends on the unique facts and circumstances of each case.
Id., quoting In re C.B.C.,
2016-Ohio-916, ¶ 76 (4th Dist.).
{¶ 44} The trial court thoroughly summarized the evidence related to housing,
noting it was a major focus of the trial. Though father testified he could not obtain housing
because he did not have the children’s social security cards and FCCS did not provide those
documents to him, the caseworker clarified that the issue related to the children’s social
security cards and birth certifications was not one of documentation but that father did not
have guardianship of the children. Additionally, that issue applied only to one of the
housing authorities to which father was referred. (May 29, 2024 Tr. at 60.) The caseworker
testified that she provided father with additional resources for housing. Prior efforts to link
father with housing resources were unsuccessful because father failed to maintain contact
with the service provider. The caseworker explained to father that he needed to complete
his other case plan objectives before FCCS could provide him a housing voucher. However,
Father testified it was his criminal record, not his income, that was a bar to him obtaining
housing. The community service worker and the caseworker also provided father referrals
to second-chance housing and private landlords. The trial court concluded that despite the
efforts of the agency and the community service worker, father “appear[ed] unable to help
Nos. 24AP-474 & 24AP-490 16
himself” (July 31, 2024 Decision and Jgmt. Entry at 22) and “unwilling[] to support his
children by showing an unwillingness to provide an adequate, permanent home for the
children” (July 31, 2024 Decision and Jgmt. Entry at 21). Thus, the trial court determined
FCCS made reasonable efforts toward reunification. Father and mother argue these efforts
were not reasonable and diligent under the circumstances.
{¶ 45} Though father and mother disagree with the trial court’s reasonable efforts
determination, we note the trial court additionally found R.C. 2151.414(B)(1)(d) applied as
the children had been in the custody of FCCS for 12 or more months of a consecutive 22-
month period. Father and mother do not dispute that E.B. and B.B. had been in the
temporary custody of FCCS for 12 or more months of a 22-month period at the time of trial.
Even though the trial court determined both R.C. 2151.414(B)(1)(a) and (d) applied, only
one of the factors in R.C. 2151.414(B)(1) needs to be established in order for the trial court
to proceed to the best interest determination. In re S.C.-N., 2022-Ohio-3064, ¶ 62 (10th
Dist.). “ ‘When a child has been in the temporary custody of FCCS for 12 or more months
in a consecutive 22-month period, the court need not find that the child cannot or should
not be placed with either parent within a reasonable time.’ ” In re C.W.,
2020-Ohio-1248,
¶ 56 (10th Dist.), quoting In re D.G.,
2010-Ohio-2370, ¶ 11 (10th Dist.) (noting R.C.
2151.414(B)(1)(a) and (d) are mutually exclusive, and R.C. 2151.414(B)(1)(a) “becomes
relevant only where the child has not been in agency custody for the requisite time” under
R.C. 2151.414(B)(1)(d)). The trial court is not required to make a reasonable efforts
determination during the permanent custody hearing related to a finding under R.C.
2151.414(B)(1)(d). A.P.,
2023-Ohio-2463, at ¶ 13 (“Because the establishment of the time
requirements under R.C. 2151.414(B)(1)(d) is not disputed, it is inconsequential whether
the trial court properly also determined, pursuant to R.C. 2151.414(B)(1)(a) and (E),
whether the children cannot or should not be placed with either parent within a reasonable
time.”). Thus, because R.C. 2151.414(B)(1)(d) applied, father’s and mother’s arguments
about FCCS’s reasonable efforts are unpersuasive.
Id.
{¶ 46} We are sympathetic to father’s argument that the fundamental importance of
housing may have impacted his ability to comply with other components of his case plan,
and we wish to emphasize that the efforts of children’s services agencies must remain
focused on the goal of reunification throughout the pendency of the case. Though father
Nos. 24AP-474 & 24AP-490 17
did not clearly communicate his difficulties in obtaining housing to the caseworker, we urge
FCCS, going forward, to undertake diligent efforts not just to recommend services but to
actively assist in meeting case plan goals. However, “ ‘[t]he issue is not whether there was
anything more that [the children services agency] could have done, but whether the
agency’s case planning and efforts were reasonable and diligent under the circumstances of
this case.’ ” In re Ratliff, 2005-Ohio-1301, ¶ 36 (10th Dist.), quoting In re Leveck, 2003-
Ohio-1269, ¶ 10 (3d Dist.). Here, father’s lack of housing predated FCCS’s involvement in
the case in 2016, and, despite being provided numerous resources, father did not make
progress toward securing housing during the years-long duration of this case.
{¶ 47} Despite our concerns that more could be done to assist with housing, given
the application of R.C. 2151.414(B)(1)(d), we are constrained by our standard of review and
must overrule mother’s and father’s first assignment of error.
IV. Second Assignment of Error–Evidentiary Rulings
{¶ 48} In their second assignment of error, father and mother argue the trial court
erred when it admitted inadmissible hearsay testimony into evidence.
{¶ 49} During the permanent custody hearing, in response to a direct question, Ms.
Wade, the FCCS caseworker, stated she had not personally observed father under the
influence. (May 29, 2024 Tr. at 63.) The following exchange then occurred:
Q: And what are the case logs?
A: Case logs are documentation of what happens, any contacts
or visitations or observations of parties of the case.
Q: And are those records kept as part of the Agency’s ordinary
course of business.
A: Yes.
Q: And do you review those records on any case that you’re on?
A: Yes.
Q: And have you reviewed records regarding anyone else who
has witnessed any signs of influence -- of [father] being under
the influence during visits?
Nos. 24AP-474 & 24AP-490 18
A: Yes.
Q: And what do you recall about what you reviewed?
[MOTHER’S COUNSEL]: Objection. Hearsay.
[TRIAL COURT]: Overruled. You can answer, ma’am.
A: There was one visit. I believe it was in June of last year
where [father] was observed to be nodded off during the visit
and the visit was cut short and that was during the hour visit.
(May 29, 2024 Tr. at 63-64.) On appeal, father and mother argue this testimony constituted
impermissible hearsay.
{¶ 50} The trial court has discretion to admit or exclude relevant evidence. In re
D.W., 2015-Ohio-3205, ¶ 11 (10th Dist.), citing State v. Angus,
2006-Ohio-4455, ¶ 16 (10th
Dist.), citing State v. Sage,
31 Ohio St.3d 173 (1987), paragraph two of the syllabus. A
reviewing court will not reverse an evidentiary ruling unless the trial court abused its
discretion in a manner that materially prejudices the affected party. McKeny v. Ohio Univ.,
2017-Ohio-8589, ¶ 38 (10th Dist.), quoting Amoako-Okyere v. Church of the Messiah
United Methodist Church,
2015-Ohio-3841, ¶ 41 (10th Dist.); D.W. at ¶ 11. An abuse of
discretion connotes a decision that is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983); State ex rel. Deblase v. Ohio Ballot
Bd.,
2023-Ohio-1823, ¶ 27.
{¶ 51} Generally, a statement is impermissible hearsay if it is an out-of-court
statement offered for the truth of the matter asserted. Evid.R. 801(C) and 802. However,
Evid.R. 803(6) provides an exception to the hearsay rule for records of “regularly conducted
business activity . . . if it was the regular practice of that business activity to make the . . .
record . . . as shown by the testimony of the custodian or other qualified witness.”
Additionally, Evid.R. 803(8) provides another exception to the hearsay rule for “[r]ecords,
reports, statements, or data compilations, in any form, of public offices or agencies, setting
forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty
imposed by law as to which matters there was a duty to report.”
{¶ 52} Father and mother argue that even if the case log to which Ms. Wade referred
was a business record within Evid.R. 803(6), the trial court nonetheless erred in permitting
Nos. 24AP-474 & 24AP-490 19
Ms. Wade to testify about the record because she did not create the record and she lacked
personal knowledge of its contents. For purposes of Evid.R. 803(6), “[a] qualified witness
is someone with enough familiarity with the record-keeping system of the business to
explain how the record came into existence in the ordinary course of business.” U.S. Bank
Natl. Assn. v. George, 2020-Ohio-6758, ¶ 18 (10th Dist.), citing State v. Hood, 2012-Ohio-
6208, ¶ 39. “ ‘Evid. R. 803(6) does not require the witness whose testimony establishes the
foundation for a business record to have personal knowledge of the exact circumstances of
preparation and production of the document or of the transaction giving rise to the record.’
”
Id., quoting Cach v. Alderman,
2017-Ohio-5597, ¶ 16 (10th Dist.). Thus, the Rules of
Evidence do not prohibit Ms. Wade from authenticating a business record simply because
she was not the individual who created the record.
{¶ 53} Father and mother additionally argue that even if the case log, itself, was
properly construed to be a business record or a record of a public agency, only the case log,
itself, should have been admitted–not Ms. Wade’s testimony about the case log. Because
FCCS did not introduce the actual case log below, father and mother argue the trial court
erred in permitting Ms. Wade’s testimony about the case log. See In re McLemore, 2004-
Ohio-680, ¶ 9 (10th Dist.) (“there is no hearsay exception, either in Evid.R. 803 or 804, that
allows a witness to give hearsay testimony of the content of business records based only
upon a review of the records”).
{¶ 54} This court has recently addressed the admissibility of a successor
caseworker’s testimony in a permanent custody hearing. In In re S.C.-N., 2022-Ohio-3064,
we explained, “[i]t is not error for a social worker to testify to reports that predated his or
her assignment to a particular case.” S.C.-N. at ¶ 88. Under either Evid.R. 803(6) or
Evid.R. 803(8), “a social worker’s testimony concerning records kept by the agency,
statements made by a parent, and reports taken during the course of the agency’s
investigation, are admissible because the contents of her file . . . had been compiled as part
of the Agency’s activities.” S.C.-N. at ¶ 89, citing In re D.M.,
2018-Ohio-4737, ¶ 27 (5th
Dist.). Thus, in a permanent custody hearing, a trial court can rely on the testimony of a
successor caseworker about the contents of agency records compiled by a predecessor. Id.
at ¶ 90 (“[t]he trial court properly relied on the testimony by a successor caseworker”). See
Nos. 24AP-474 & 24AP-490 20
also In re T.G.,
2022-Ohio-1213, ¶ 71-74 (5th Dist.) (a caseworker may testify to the contents
of the case file even where the caseworker has no personal knowledge of those facts).
{¶ 55} Accordingly, pursuant to our decision in In re S.C.-N., we conclude the trial
court did not err in allowing Ms. Wade’s testimony about the FCCS case logs compiled by a
predecessor case worker. We overrule father’s and mother’s second assignment of error.
V. Third Assignment of Error–Consideration of the Children’s Wishes
{¶ 56} In their third and final assignment of error, father and mother argue the trial
court erred by not fully considering the wishes of the children in making its best interest
determination.
{¶ 57} As outlined above, a trial court takes a two-step approach in considering
whether to award permanent custody. In re A.L., 2022-Ohio-4095, ¶ 29 (10th Dist.). First,
the trial court must determine if any of the factors in R.C. 2151.414(B)(1) apply. Id.; Z.C.,
2023-Ohio-4703, at ¶ 7. Here, the trial court determined E.B. and B.B. had been in the
temporary custody of FCCS for 12 or more months of a consecutive 22-month period, thus
satisfying R.C. 2151.414(B)(1)(d). The record here supports the trial court’s determination
that one or more of the factors in R.C. 2151.414(B)(1) apply.
{¶ 58} Once the trial court determines one of the circumstances in R.C.
2151.414(B)(1)(a) through (e) applies, the trial court then must determine whether a grant
of permanent custody is in the best interest of the child. A.L. at ¶ 31, citing In re A.J., 2014-
Ohio-2734, ¶ 16 (10th Dist.); Z.C. at ¶ 7. To determine the best interest of the child, R.C.
2151.414(D)(1) requires the trial court to consider all relevant factors including, but not
limited to, the following:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-ofhome providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
Nos. 24AP-474 & 24AP-490 21
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). R.C. 2151.414(D) does not assign any one factor “greater
weight than the others.” In re Schaefer, 2006-Ohio-5513, ¶ 56.
{¶ 59} Father and mother argue the trial court did not adequately consider the
children’s wishes pursuant to R.C. 2151.414(D)(1)(b). In the July 31, 2024 decision and
judgment entry, the trial court stated:
Both children, as represented through the [guardian ad litem]
and their own attorneys, have expressed their wishes. [E.B.]
wishes to be adopted. [B.B.] wishes to reunify with his Father,
if possible. Otherwise, he wishes to remain where he is.
(July 31, 2024 Decision and Jgmt. Entry at 30.) Father and mother assert this finding is
inconsistent with the evidence at trial and E.B. did not wish to be adopted. At minimum,
father and mother argue the trial court should have inquired further or conducted a hearing
as to E.B.’s wishes after the guardian ad litem testified E.B. did not want to be adopted.
{¶ 60} Father and mother point to the testimony of Ms. Christoff, the guardian ad
litem for the children, as contradicting the trial court’s finding. Specifically, they rely on
Ms. Christoff’s testimony that E.B. “most recently related to [the guardian ad litem] in April
of this year that she is okay staying with her foster parent, and she has no wish to be
adopted.” (May 29, 2024 Tr. at 78.) However, a review of the record indicates the evidence
at trial supports the trial court’s findings under R.C. 2151.414(D)(1)(b).
{¶ 61} Despite Ms. Christoff initially stating E.B. had no wish to be adopted, Ms.
Christoff later clarified in her testimony that the children’s wishes had evolved over time.
Nos. 24AP-474 & 24AP-490 22
Ms. Christoff explained that although E.B. initially did not want to be adopted, E.B. realized
over time her father would not be able to care for her, and E.B. most recently expressed to
the guardian ad litem that she wanted to stay with her current foster mom and possibly be
adopted by her. (May 29, 2024 Tr. at 82-84.) Ms. Christoff testified that E.B. “modified”
her desires as the case progressed and was “open to being adopted by her current foster
mother.” (May 29, 2024 Tr. at 85.) This is consistent with E.B.’s in-camera interview with
the trial court in April 2024 during which she expressed a desire to be adopted. (May 29,
2024 Tr. at 84; In Camera Tr. at 45.) The trial court also appointed separate counsel for
E.B. and B.B. after E.B. expressed her desire to be adopted. (May 29, 2024 Tr. at 85-86.)
At the permanent custody hearing, counsel for E.B. stated that E.B. wanted the court to
grant the permanent custody motion. (May 28, 2024 Tr. at 10.) While Ms. Christoff may
have misspoken early in her testimony, her testimony overall reflects, consistent with the
in-camera interview and position of E.B.’s counsel, that E.B. came to realize over time that
she would like to be adopted.
{¶ 62} Thus, the evidence at trial is consistent with the trial court’s determination
that E.B. wanted to be adopted. Though father and mother argue the trial court failed to
investigate E.B.’s wishes further, the record indicates the trial court carefully considered
E.B.’s wishes as reflected by multiple sources. Accordingly, the manifest weight of the
evidence supports the trial court’s finding that E.B. wished to be adopted. We overrule
father’s and mother’s third and final assignment of error.
VI. Disposition
{¶ 63} Based on the foregoing reasons, the trial court did not err in determining
FCCS engaged in reasonable efforts toward reunification, in making evidentiary
determinations related to the contents of agency records, and in considering and
determining E.B.’s wishes before making its determination that granting the motion for
permanent custody and terminating father’s and mother’s parental rights was in the best
interest of the children. Having overruled father’s and mother’s three assignments of error,
we affirm the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch.
Judgment affirmed.
Nos. 24AP-474 & 24AP-490 23
JAMISON, P.J. and MENTEL, J., concur.
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