In re S.K. ( 2022 )

[Cite as In re S.K., 2022-Ohio-1769.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: S.K., S.K. : JUDGES:
AND S.K. : Hon. Earle E. Wise, Jr., P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case Nos. 21 CA 000027
: 21 CA 000028
: 21 CA 000029
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case Nos. 219 2218, 2119
&2120
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 25, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
TONIA R. WELKER ASHLEY L. JOHNS
126 E. Vine Street 117 East High Street
Mount Vernon, OH 43050 Mount Vernon, OH 43050
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 2
Wise, Earle, P.J.
{¶ 1} Appellant, S.K, (Father), father of the three children involved in this matter
filed this appeal from the November 22, 2021 judgment entered in the Knox County Court
of Common Pleas, Juvenile Court Division, which terminated all parental rights, privileges
and responsibilities of Father and ordered permanent custody of the minor children be
granted to Knox County Department of Job and Family Services (Agency).
{¶ 2} This appeal is expedited, and is being considered pursuant to
App.R.11.2(C). The relevant facts leading to this appeal are as follow:
{¶ 3} The three children involved in this matter all have the same initials. For
purposes of clarity we refer to the oldest child as SK1, the middle child as SK2, and the
youngest child as SK3. At the time of the proceedings below, SK1 was 6 years old, SK2
was 4 years old, and SK3 was 2 years old.
{¶ 4} On September 18, 2019, the Agency filed an Ex Parte Motion seeking
temporary custody of all three children. Concerns included domestic violence and drug
abuse in the home, and medical neglect of the children.
{¶ 5} On November 14, 2019, adjudicatory and dispositional hearings were held
wherein the children were found to be dependent based on the agreement of the parties
and continued the children in the temporary custody of the Agency. Several review
hearings were held wherein the children were continued in the temporary custody of the
Agency.
{¶ 6} On May 14, 2021, after both Mother and Father failed to meet the
requirements of their case plans over a 25-month period, the Agency filed a Motion for
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 3
Permanent Custody. On November 5, 2021 a hearing was held on the Agency's motion.
The following facts were adduced during the hearing.
{¶ 7} Six-year-old SK1 is autistic and has significant developmental delays. He
is non-verbal, unable to feed himself, is in diapers, and cannot dress himself. In his foster
home he is engaged in several therapies and is in a special needs kindergarten class.
When he was removed from Mother and Father's home there were also significant
medical concerns. SK1's teeth were so thoroughly decayed that they all had to be
extracted. The decay was so extensive that it caused permanent damage to SK1's jaw
bones. He also had an infection that caused swelling of his lymph nodes and raw, bloody
elbows caused from lying on his stomach and rocking back and forth.
{¶ 8} Four-year-old SK2 has developmental delays in verbalization and also
required dental surgery to remove 4 decayed teeth. SK2 engages in head banging,
suffers sleeplessness or night terrors, and has toileting issues as is terrified of the
bathroom.
{¶ 9} Two-year-old SK3 is a normal, happy, and active child who displays no
delays or issues. SK2 and SK3 are placed with the same foster family. They are bonded
with one another as well as their foster family.
{¶ 10} For the majority of the life of the case, Father has been incarcerated. At the
time of the permanent custody hearing, Father's earliest possible release date was
December 28, 2023. At the beginning of the case, when Father was not incarcerated, the
Agency added Father on the case plan and scheduled visits between Father and the
children. But Father failed to appear for most of the visits and failed to complete any
services required by his case plan. He was therefore removed from the case plan. While
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 4
Father was represented by counsel at the permanent custody hearing, counsel did not
cross examine any of the witnesses presented by the agency and did not present any
evidence. Counsel did ask the Guardian Ad Litem if he had any contact with Father and
the guardian said he had not.
{¶ 11} Mother also failed to satisfactorily comply with her case plan, and two
possible kinship placements were found unsuitable. Moreover, the Agency had attempted
to work with the parents for more than 25 months. Thus, following the permanent custody
hearing, on November 22, 2021, after considering all the relevant factor, that it was within
the children's best interests to permanently terminate parental rights and grant permanent
custody of the children to the Agency.
{¶ 12} Father timely filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 13} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS
OF THE CHILD WOULD BE SERVED BY GRANTING PERMANENT CUSTODY WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
{¶ 14} In his sole assignment of error, Father argues the trial court's decision to
place the children in the permanent custody of the Agency is against the manifest weight
and sufficiency of the evidence. We disagree.
{¶ 15} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). Accordingly,
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 5
judgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed as being against the manifest weight of the
evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 N.E.2d 578(1978). On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541, 1997-Ohio-52; Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d
517, 2012-Ohio-2179. In weighing the evidence, however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley at ¶ 21
Permanent Custody
{¶ 16} R.C. 2151.414(B)(1) states permanent custody may be granted to a public
or private agency if the trial court determines by clear and convincing evidence at a
hearing held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the
child and any of the following apply:
(a) The child is not abandoned or orphaned* * *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.
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 6
(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* *
*
(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.
{¶ 17} Therefore, R.C. 2151.414(B) provides a two-pronged analysis the trial court
is required to apply when ruling on a motion for permanent custody. In practice, the trial
court will determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶ 18} R.C. 2151.414(D) governs "best interests" and states the following:
(D) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division
(A)(4) or (5) of section 2151.353 or division (C) of section 2151.415
of the Revised Code, the court shall consider all relevant factors,
including, but not limited to, the following:
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 7
(1) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(2) 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;
(3) 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 ending on or
after March 18, 1999;
(4) 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;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶ 19} Clear and convincing evidence is that evidence "which will provide 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, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985).
"Where the degree of proof required to sustain an issue must be clear and convincing, a
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 8
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof." Cross at 477.
{¶ 20} Here, R.C. 2151.414(B)(1)(d) applies because the children were in the
temporary custody of the Agency in excess of twelve or more months of the consecutive
twenty-two-month period. Father does not dispute this fact. This court has adopted the
position that proof of temporary custody with an agency for twelve or more months of a
consecutive twenty-two-month period, standing alone is sufficient to award permanent
custody. In the Matter of A.S., V.S., and Z.S., 5th Dist. Delaware No. 13 CAF 050040,
2013-Ohio-4018. Therefore, a finding that grounds existed for permanent custody cannot
be against the manifest weight or sufficiency of the evidence. Matter of L.G., 5th Dist.
Stark No. 2020-CA-00139, 2021-Ohio-743, ¶ 36. Even if that were not true, Father failed
to work his case plan when he had the opportunity to do so, and will remain incarcerated
until at least December 28, 2023. Transcript of hearing 12-13.
{¶ 21} Father's sole assignment of error is overruled.
Knpx County, Case Nos. 21 CA 000027, 21 CA 000028, 21 CA 000029 9
{¶ 22} The judgment of the Knox County Court of Common Pleas Juvenile Division
is affirmed.
By Wise, Earle, P.J.
Hoffman, J. and
Wise, J., J. concur.
EEW/rw