In re S.D. , 2011 Ohio 6630 ( 2011 )

[Cite as In re S.D., 2011-Ohio-6630.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.D. : APPEAL NOS. C-110607
C-100608
: TRIAL NO. F09-0987
: O P I N I O N.
:
:
Civil Appeal From: Hamilton County Court of Common Pleas, Juvenile Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 23, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Geers,
Assistant Prosecuting Attorney, for Hamilton County Department of Job and Family
Services,
Shelia Kyle-Reno, Hamilton County Public Defender, and Miranda Tavares,
Assistant Hamilton County Public Defender for the Guadian ad Litem,
Bernadette M. Longano, for Appellant Kimberly Diallo,
Timothy J. McKenna, for Appellant Mama Diallo.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Presiding Judge.
{¶1} In this appeal, Kimberly and Mama Diallo contest the decision of the
Hamilton County Juvenile Court awarding permanent custody of their son, S.D., to
the Hamilton County Department of Job and Family Services (“HCJFS”). For the
following reasons, we affirm.
{¶2} Before a juvenile court may terminate parental rights, it must apply a
two-prong test. First the court must find that it is in the child’s best interest to be
placed in the permanent custody of the moving agency. R.C. 2151.414(B)(1); R.C.
2151.414(D). The second prong of the test requires the juvenile court to find one of
four conditions listed in R.C. 2151.414(B)(1)(a) through (d). Both prongs must be
supported by clear and convincing evidence. R.C. 2151.414(B)(1). “Clear and
convincing evidence” is evidence sufficient to create a “firm belief or conviction as to
the allegations sought to be established.” Cross v. Ledford (1954) 161 Ohio St. 469,
120 N.E.2d 118.
{¶3} Kimberly and Mama Diallo each separately raise the same assignment
of error─namely that the juvenile court’s decision to award permanent custody of
their son to HCJFS was against the weight of the evidence or was not supported by
sufficient evidence. In reviewing these arguments, we examine the record to
determine if the court’s decision meets the clear-and-convincing standard. In re
Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613; see, also, In re
Heston (1998), 129 Ohio App.3d 825, 828, 719 N.E.2d 93. We will not substitute our
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment for that of the trial court where some competent and credible evidence
supports the essential elements of the case. In Re W.W., 1st Dist. Nos. C-110363 and
C-110402, 2011-Ohio-4912, ¶46; In re E.S., 1st Dist Nos. C-100725 and C-100747,
2011-Ohio-586, ¶3.
Best Interest of the Child
{¶4} In assessing the best interest of the child, the court must consider “all
relevant factors” including (1) the child’s interaction with 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 by the child or
the child’s guardian ad litem, (3) the custodial history of the child, and (4) the child’s
need for legally secure placement and whether that type of placement can be
achieved without a grant of permanent custody. R.C. 2151.414(D)(1)(a)-(d).
{¶5} The record here indicates that the court considered all of these factors
and that its decision was based upon clear-and-convincing competent, credible
evidence. Evidence adduced below demonstrated that S.D. had bonded with his
foster family and that the same foster family had had continuous custody of S.D.
since March 23, 2009, when S.D. was approximately three weeks old. S.D.’s
relationship with his parents was limited to weekly visits to which his parents were
frequently late or missed, altogether. S.D. was too young to express his wishes at the
time of the hearing, but his guardian ad litem recommended permanent placement.
And there was evidence admitted that S.D’s foster family wished to adopt him.
R.C. 2151.414(B)(1)(a)
{¶6} As to the second prong of the test, in this case the court found that,
under R.C. 2151.414(B)(1)(a) and based on the factors in R.C. 2151.414(E), S.D. could
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OHIO FIRST DISTRICT COURT OF APPEALS
not be placed with one of his parents within a reasonable time or should not be
placed with either parent.
{¶7} Clear and convincing evidence supported the trial court’s decision.
S.D.’s foster-father testified that he and his wife had offered Kimberly visitation with
her son in their home, but that she had never visited S.D. there. S.D.’s parents were
late or absent from many of their supervised weekly visits. Throughout the two years
that S.D. was in foster care, neither parent provided support except for a box of
diapers, wipes, a coat and some shirts despite, being asked to do more. They did not
acknowledge S.D. on holidays. See R.C. 2151.414(E)(4).
{¶8} Mama Diallo failed to complete any of his case plan recommended by
HCJFS, including the AMENDS program, urine screenings, and parenting classes.
The one urine screen he did submit to was positive for marijuana. Mama has had two
drug-related convictions. See R.C. 2151.414(E)(1) and (E)(2).
{¶9} Kimberly Diallo missed therapy appointments and was terminated as a
patient for lack of attendance. She completed parenting classes, but did not
substantially comply with the balance of her case plan. See R.C. 2151.414(E)(1) and
(E)(2).
{¶10} Based on this evidence, we hold that the trial court did not err in
awarding permanent custody of S.D. to HCJFS. Kimberly and Mama Diallo’s
assignments of error are overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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