permanent custody hearing in Ohio

2026R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). {¶14} The trial court found that the first prong of the permanent custody test was satisfied because the children had been in the temporary custody of CSB for at least 12 months of a consecutive 22-month period.

2026(Emphasis added.) R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). {¶15} As quoted above, the trial court made an explicit finding on each prong of the permanent custody test.

2023It maintains that it was not required to demonstrate reasonable efforts at the permanent custody hearing because (1) R.C. 2151.414(E) did not apply, and (2) over the course of two years, the trial court repeatedly determined that the agency had made reasonable efforts and parents did not object to the reasonableness of the agency’s efforts.3 Father responds that the agency was required to show reasonable efforts to facilitate reunification because none of the exceptions provided in R.C. 2151.419(A)(2) apply. {¶ 128} The Ohio Supreme Court has recognized that by its terms, R.C. 2151.419 “does n

2023See also In re C.F., 113 Ohio St.3d 73 , 2007-Ohio-1104 , ¶ 43 (concluding that a reasonable efforts determination is necessary at a permanent custody hearing only if the agency has not demonstrated its use of reasonable efforts prior to that time).

2025Clear and convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross, 161 Ohio St. 469 , at paragraph three of the syllabus. {¶18} Mother does not dispute the trial court’s best interest determination, but challenges only the trial court’s finding on the first prong of the permanent custody test.

2023Clear and convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. {¶13} The trial court found that the first prong of the permanent custody test was satisfied in this case because the children could not be returned to Mother’s custody within a reasonable time or should not be returned to her custody because she had failed “conti

2023See Eastley v. Volkman, 132 Ohio St.3d 383 , 2012-Ohio-2179 , 972 N.E.2d 517 , ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 , 461 N.E.2d 1273 (1984), fn. 3. 6 OHIO FIRST DISTRICT COURT OF APPEALS A. 12-of-22 Determination {¶18} The juvenile court determined the first prong of the permanent-custody test was satisfied as to M.S. because the child had been in the temporary custody of HCJFS for 12 or more months of a consecutive 22-month period.

2023See Eastley v. Volkman, 132 Ohio St.3d 383 , 2012-Ohio-2179 , 972 N.E.2d 517 , ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 , 461 N.E.2d 1273 (1984), fn. 3. 6 OHIO FIRST DISTRICT COURT OF APPEALS A. 12-of-22 Determination {¶18} The juvenile court determined the first prong of the permanent-custody test was satisfied as to M.S. because the child had been in the temporary custody of HCJFS for 12 or more months of a consecutive 22-month period.

2026November 13, 2000), citing In re Awkal, 95 Ohio App.3d 309, 316 (8th Dist. 1994). {¶56} In determining the best interest of the child at a permanent custody hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, but not limited to the following: (1) the interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster parents, and out-of-home providers, and any other person who may significantly affect the child; (2) the wishes of the child as expressed directly by the child or through the child’s guardian ad litem,

2026November 13, 2000), citing In re Awkal, 95 Ohio App.3d 309, 316 (8th Dist. 1994). {¶50} In determining the best interest of the child at a permanent custody hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, but not limited to the following: (1) the interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster parents, and out-of-home providers, and any other person who may significantly affect the child; (2) the wishes of the child as expressed directly by the child or through the child’s guardian ad litem,

2026Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). {¶ 20} We have applied the balancing test set forth in Unger when reviewing a trial court’s denial of a continuance where a parent fails to appear for a permanent custody hearing.

2025“The term ‘abuse-of-discretion’ connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). {¶31} In determining the best interest of the child at a permanent custody hearing, R.C. 2151.414(D)(1) mandates the trial court must 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 parents and out-of-home providers, and any other person who ma

2025Clear and convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross, 161 Ohio St. 469 , at paragraph three of the syllabus. {¶18} Mother does not dispute the trial court’s best interest determination, but challenges only the trial court’s finding on the first prong of the permanent custody test.

2024R.C. 2151.414(B)(1). “ ‘Clear and convincing evidence is that measure or degree of proof which is more than a mere Fairfield County, Case Nos. 2023 CA 00047, 2023 CA 00048 & 2023 CA 00049 10 “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ” In re Z.C., 173 Ohio St.3d 359 , 361, 2023-Ohio-4703, ¶ 7 , quoting Cross v. Ledford, 161 Ohio St. 469 , 120 N.E.2d 118 (1954), paragraph three

2024In addition, when calculating whether a child has been in an agency’s temporary custody for the requisite time, “the time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count.” In re C.W., 104 Ohio St.3d 163 , 2004-Ohio-6411 , 818 N.E.2d 1176 , ¶ 26.

2023“The time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12-month period 12 Case Nos. 2022-A-0090, 2022-A-0091 set forth in R.C. 2151.414(B)(1)(d).” In re C.W., 104 Ohio St.3d 163 , 2004-Ohio-6411 , 818 N.E.2d 1176 , ¶ 26. {¶43} Here, ACCSB obtained temporary custody of the children when they were adjudicated dependent on August 28, 2018.

2026The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’” State v. Lawson, 2020-Ohio-6852, ¶ 26 (2d Dist.), quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964). {¶ 12} The balancing test set forth in Unger, 67 Ohio St.2d 65, applies to a trial court’s denial of a continuance where a parent fails to appear for a permanent custody hearing.

2024We have held that the factors set forth in State v. Unger, 67 Ohio St.2d 65 , 423 N.E.2d 1078 (1981), are applicable to a trial court’s denial of a continuance where a parent fails to appear for a permanent-custody hearing.

2026See In re A.W., 2017-Ohio-7786, ¶ 17 (9th Dist.) (noting “that the five factors listed in R.C. 2151.414(B)(1)(a)-(e) are alternative findings, and that the agency need only prove one in order to satisfy the first prong of the permanent custody test”). {¶29} “If the trial court determines that any provision enumerated in R.C. 2151.414(B)(1) applies, the trial court must determine, by clear and convincing evidence, whether granting the agency permanent custody of the child is in the child’s best interest.” (Emphasis in original.) In re A.F., 2012-Ohio-1137, ¶ 55 (3d Dist.).

2026See In re A.W., 2017-Ohio-7786, ¶ 17 (9th Dist.) (noting “that the five factors listed in R.C. 2151.414(B)(1)(a)-(e) are alternative findings, and that the agency need only prove one in order to satisfy the first prong of the permanent custody test”). {¶18} “Prior to making a finding that a 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, the statute directs the trial court to consider all the relevant factors listed in R.C. 2151.414(E).” In re Dn.R., 2020-Ohio-6794, ¶ 38 (3d Dist.).

2026The Supreme Court of Ohio “determined that the trial court is not obligated, under R.C. 2151.419, to make a determination that the agency used reasonable efforts to reunify the family at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to the hearing.” (Emphasis in original.) In re N.R.S., 2018-Ohio-125, ¶ 25 (3d Dist.), citing In re C.F. at ¶ 41, 43 (concluding that the reasonable efforts determination under R.C. 2151.419 does not apply to permanent-custody motions under R.C. 2151.413 or to hearings on such motions un

2025The Supreme Court of Ohio determined that the trial court is not obligated, under R.C. 2151.419, to make a determination that the agency used reasonable efforts to reunify the family at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to the hearing. -7- Case Nos. 1-24-23, 24, 25, 26, 27 (Emphasis in original.) In re N.R.S., 2018-Ohio-125, ¶ 25 (3d Dist.), citing In re C.F. at ¶ 41, 43 (concluding that the reasonable efforts determination under R.C. 2151.419 does not apply to permanent-custody motions under R.C. 2151.4

2026R.C. 2151.414(B)(1)(a)-(e). “‘Only one of the factors must be present for the first prong of the permanent custody analysis to be satisfied.’” In re S.C., 2015-Ohio- 2410, ¶ 20 (8th Dist.), quoting In re L.W., 2017-Ohio-657, ¶ 28 (8th Dist.).

2025T.R. was committed to the agency’s temporary custody in February 2022, and the agency filed for permanent custody on September 13, 2023. “‘Only one of the factors must be present for the first prong of the permanent custody analysis to be satisfied.’” In re S.C. at ¶ 20, quoting In re L.W., 2017-Ohio-657, ¶ 28 (8th Dist.).

2024S.I.M., 2020-Ohio-162, at ¶ 16 ; K.J., 2018- Ohio-471, at ¶ 28 (“[a]n incarcerated parent does not have ‘an absolute due process right to attend the trial of a civil action to which he is a party’”) (citation omitted). {¶29} To determine whether due process was denied in not allowing an incarcerated defendant to appear at the permanent custody hearing, this court has applied the test in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976).

2024S.I.M., 2020-Ohio-162, at ¶ 16 ; K.J., 2018- Ohio-471, at ¶ 28 (“[a]n incarcerated parent does not have ‘an absolute due process right to attend the trial of a civil action to which he is a party’”) (citation omitted). {¶29} To determine whether due process was denied in not allowing an incarcerated defendant to appear at the permanent custody hearing, this court has applied the test in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976).

2026See In re Z.C., 2023-Ohio-4703, ¶ 13 . {¶13} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with either parent, based on an analysis under Sect

2025See In re Z.C., 2023-Ohio-4703, ¶ 13. {¶17} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with either parent, based on an analysis under R.C.

2025Once the juvenile court ascertains that one of the four factors listed in R.C. 2151.414(B)(1) is present, then the court proceeds to an analysis of the child’s best interest.” In re J.B., 2013-Ohio-1705, ¶ 80-81 (8th Dist.). {¶24} The trial court determined that children could not be placed within a reasonable time or should not be placed with either parent because there is evidence that one or more factors in division (E) of R.C. 2151.414 exist: (1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to

2022“Only one of the four factors must be present for the first prong of the permanent custody analysis to be satisfied. * * * Once the juvenile court ascertains that one of the four factors listed in R.C. 2151.414(B)(1) is present, then the court proceeds to an analysis of the child’s best interest.” In re J.B., 8th Dist. Cuyahoga No. 98565, 2013-Ohio-1705, ¶ 80-81 .

2023Id. {¶37} When considering the best interest of a child in a permanent custody hearing, the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors.

2023Id. {¶33} When considering the best interest of a child in a permanent custody hearing, the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors.

2025It is well settled that “the statute imposes no requirement for such a determination at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to that hearing.” (Internal quotations omitted.) In re L.R., 2019-Ohio-2305, ¶ 14 (9th Dist.), quoting In re A.C.-B., 10 2017-Ohio-374, ¶ 22 (9th Dist.); see also In re C.F., 2007-Ohio-1104 , ¶ 41-43 (concluding that a reasonable efforts determination is necessary at a permanent custody hearing only if the agency has not demonstrated its use of reasonable efforts prior to that time).

2024It is well settled that “the statute imposes no requirement for such a determination at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to that hearing.” (Internal quotations omitted.) In re L.R., 2019-Ohio-2305, ¶ 14 (9th Dist.), quoting In re A.C.-B., 2017-Ohio-374, ¶ 22 (9th Dist.); see also In re C.F., 2007-Ohio-1104 , ¶ 41-43 (concluding that a 22 reasonable efforts determination is necessary at a permanent custody hearing only if the agency has not demonstrated its use of reasonable efforts prior to that time).

2025Lesser tests of prejudice have been rejected: “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Bradley at 142, fn. 1 , quoting Strickland at 693 . {¶92} The mother criticizes her first attorney for trying to convince her to voluntarily relinquish her parental rights in this case (when the case was originally called for the permanent custody hearing).

2009Id.; State v. Bradley (1989), 42 Ohio St.3d 136 . {¶ 26} Appellant has not identified what testimony she would have offered had the juvenile court allowed her to attend the permanent custody hearing or continued the hearing until she was released from prison.

2024Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 13 {¶53} We have frequently noted, “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact that court’s determination will have on the lives of the parties concerned.” In re: E.H., 2022-Ohio-1682, ¶ 101 (5th Dist.) quoting In re: Manzy Children, 5th Dist., No. 2000CA00244, 2000 WL 170073 (Nov. 13, 2000) citing In re: Awkal, 95 Ohio App.3d 309, 316 , 642 N.E.2d 424 (8t

2024Ashland County, Case Nos. 24 COA 005 , 006, and 007 17 {¶65} We have frequently noted, “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child and should be accorded the utmost respect, given the nature of the proceeding and the impact that court’s determination will have on the lives of the parties concerned.” In re: E.H., 5th Dist., Stark No. 2022CA00007, 2022-Ohio-1682 , ¶ 101 quoting In re.

2025In re Murray, 52 Ohio St.3d 155, 157 (1990).

2023A parent has a “‘fundamental liberty interest’ in the care, custody and management” of his or her child, In re Murray, 52 Ohio St.3d 155, 156 , 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S. 745, 753 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982), and the right to raise one’s own child is “‘an essential and basic civil right.’” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67 , quoting In re Hayes, 79 Ohio St.3d 46, 48 , 679 N.E.2d 680 (1997).