In re D.P. , 2019 Ohio 4970 ( 2019 )

[Cite as In re D.P., 2019-Ohio-4970.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. John W. Wise, P. J.
IN THE MATTER OF: Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
D.P. Case No. 2019CA00120
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
2018JCV00379
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 2, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES B. PHILLIPS AARON KOVALCHIK
STARK COUNTY JFS 116 Cleveland Avenue, NW
402 2nd Street, SE Suite 808
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case No. 2019CA00120 2
Wise, P. J.
{¶1} Appellant-Father C.P. appeals the judgment of the Stark County Common
Pleas Court, Juvenile Division, awarding permanent custody of his minor child D.P. to
Appellee Stark County Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant-Father C.P. and Mother S.W. are the parents of the minor
children, K.P. (DOB 02/19/08), J.P. (DOB 05/13/17) and D.P. (DOB 5/13/17).
{¶3} On April 12, 2018, SCJFS filed a complaint alleging the dependency and/or
neglect of D.P. (DOB 05/13/17). The allegations of the complaint centered on both
parent's persistent drug use, poor home conditions, and medical neglect of the child. The
SCJFS had attempted to work voluntarily with the family in a non-court case since August
of 2017. Those efforts were unsuccessful, and the complaint was filed.
{¶4} On April 13, 2018, a shelter care hearing was held. The parents stipulated
to probable cause. Based on the stipulations, the trial court found that probable cause
existed for the involvement of SCJFS and granted emergency temporary custody to the
Agency.
{¶5} On May 7, 2018, a CASA report was filed, and on May 9, 2018, an initial
case plan was filed.
{¶6} On July 5, 2018, the parents failed to appear at an adjudication hearing.
Based on the evidence presented, the trial court found the minor children to be dependent
and placed them into the temporary custody of SCJFS. The trial court approved and
adopted the case plan and found that SCJFS had made reasonable efforts to prevent
the need for the continued removal of the children from the home.
Stark County, Case No. 2019CA00120 3
{¶7} On October 9, 2018 and March 8, 2019, the trial court reviewed the case.
The trial court approved and adopted the case plan and found that SCJFS had made
reasonable efforts to prevent the need for the continued removal of the children from the
home. The trial court also found that compelling reasons existed to preclude a request
for permanent custody only at the October 9, 2018 hearing.
{¶8} On February 11, 2019, SCJFS filed a motion seeking permanent custody of
the children. The original permanent custody hearing date had to be continued due to the
serious illness of the ongoing caseworker.
{¶9} The Guardian ad Litem for D.P. submitted a report stating that D.P. was
adjusted to his foster family and doing well and recommending that D.P. be placed into the
permanent custody of SCJFS.
{¶10} On July 2, 2019, the trial court heard evidence on the motion seeking
permanent custody of the minor children. Tr. at 3-45. At the hearing, SCJFS presented
evidence regarding Appellant-Father and K.P., J.P., and D.P. Tr. at 10-20, 20-33.
Specifically, Caseworker Sue Snyder testified that Appellant had not completed his case
plan, had not significantly reduced the risk he posed to his children, had abandoned his
children, and that Appellant was currently serving a four-year prison sentence for
Felonious Assault and Domestic Violence against the children's mother. Tr. at 10-20. Ms.
Snyder also testified that permanent custody was in the best interests of the children.
Tr. at 20-33.
{¶11} Appellant Father also testified in the Best Interest Hearing. Tr. at 36-42. He
stated that he is doing well in prison, that he is sober and is taking GED classes. Id.Appellant admitted to currently serving a four-year prison sentence and not visiting his
Stark County, Case No. 2019CA00120 4
children in over 90 days before he was arrested on his current charge. Tr. at 37, 41.
Appellant also admitted that if he were granted an early judicial release, he would be
transferred to SRCCC for several more months, and children are not allowed at that
facility. Tr. at 41.
{¶12} Mother was present at the hearing, stipulated to the granting of permanent
custody, and signed a stipulation form voluntarily relinquishing her parental rights.
{¶13} The Guardian ad Litem for the children submitted a report recommending
that permanent custody of the children be granted to SCJFS. The trial court took the
matter under advisement. Tr. at 45.
{¶14} On July 8, 2019, the trial court issued its findings of fact granting permanent
custody of K.P., J.P. and D.P. to SCJFS and terminating Appellant's parental rights.
Specifically, the trial court found that, despite reasonable efforts by SCJFS, the minor
children could not and should not be placed with Appellant within a reasonable amount
of time, Appellant had abandoned the children, and the grant of permanent custody was
in the children’s best interest.
{¶15} Appellant-Father now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶16} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS
TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶17} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
Stark County, Case No. 2019CA00120 5
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I.
{¶18} Appellant-Father argues that the trial court’s finding that D.P. could not be
placed with him within a reasonable period of time was against the manifest weight and
sufficiency of the evidence.
{¶19} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
and convincing evidence” as “[t]he measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
{¶20} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “a 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.” State
v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment
is “supported by some competent, credible evidence going to all the essential elements
of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at
74, 564 N .E.2d 54.
Stark County, Case No. 2019CA00120 6
{¶21} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), “The
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.”
{¶22} Further, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415,
419, 674 N.E.2d 1159 (1997); see, also, In re: Christian, 4th Dist. Athens App. No.
04CA10, 2004–Ohio–3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004–
Ohio–2040.
{¶23} Pursuant to §2151.414(B), the court may grant permanent custody of a child
to the movant if the court determines “that it is in the best interest of the child to grant
permanent custody to the agency that filed the motion for permanent custody and that
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
Stark County, Case No. 2019CA00120 7
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 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.
Stark County, Case No. 2019CA00120 8
{¶24} Revised Code §2151.414(E) sets forth the factors a trial court must consider
in determining whether a child cannot or should not be placed with a parent within a
reasonable time. If the court finds, by clear and convincing evidence, the existence of any
one of the following factors, “the court shall enter a finding that the child cannot be placed
with [the] parent within a reasonable time or should not be placed with either parent”:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parent to remedy the problem that initially caused the child to
be placed outside the home, the parents have failed continuously and
repeatedly to substantially remedy the conditions that caused the child to
be placed outside the child's home. In determining whether the parents
have substantially remedied the conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(10) The parents has abandoned the child.
***
(16) Any other factors the court considers relevant.
{¶25} Upon review, the trial court’s finding that D.P. could not be placed with
Appellant-Father within a reasonable period of time was not against the manifest weight
or sufficiency of the evidence. In concluding that the child cannot or should not be placed
Stark County, Case No. 2019CA00120 9
with Appellant within a reasonable period of time, there was enough evidence for the trial
court to rely upon R.C. §2151.414(E)(1). Caseworker Snyder testified that Appellant was
currently serving a four year prison term for assaulting the child’s mother. Tr. at 17.
Appellant-Father failed to complete his drug and alcohol assessment. Tr. at 14-15.
Appellant-Father failed to keep the home in a clean condition prior to the initiation of the
court case. Id. Subsequent to the filing of the court case, Appellant failed to engage in
recommended substance abuse treatment. Tr. at 16. Appellant tested positive for alcohol
and marijuana throughout the pendency of the cases. Tr. at 16. Appellant failed to
complete a parenting assessment with Northeast Ohio Behavioral Health as
recommended. Tr. at 15-16. Appellant did not complete his case plan or reduce the risks
that led to the involvement of the Agency in this case. Tr. at 16-17.
{¶26} Caseworker Snyder further testified that Appellant also failed to visit the
children prior to his incarceration. Tr. at 16-17. Appellant’s last visit with his children was
on June 6, 2018. Tr. at 16. More than 90 days lapsed between June 6, 2018, and the
July 2, 2019, the date of the trial. Appellant confirmed the testimony of the case worker.
Tr. at 41.
{¶27} For the aforementioned reasons, there was more than enough evidence for
the trial court to conclude that D.P could not and should not be replaced with Appellant
within a reasonable amount of time.
{¶28} Appellant's first assignment of error should be overruled.
II.
{¶29} In his second assignment of error, Appellant-Father argues that the finding
that permanent custody was in the best interest of D.P. was against the manifest weight
and sufficiency of the evidence.
Stark County, Case No. 2019CA00120 10
{¶30} 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, with due regard
for the maturity of the child; (3) the custodial history of the child; and (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.
{¶31} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence and such a decision must not be reversed absent an abuse of discretion.
Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller
(1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As an appellate court, we are not the trier
of fact; instead, our role is to determine whether there is relevant, competent, and credible
evidence upon which the factfinder could base his or her judgment. Tennant v. Martin–
Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck
v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911.
{¶32} As noted in our recitation of the facts, the trial court conducted the
permanent custody trial in this matter on July 2, 2019. During the best interest portion of
the trial, Caseworker Snyder testified that D.P., who is now 2 years old and was 11 months
old at the time of removal from his home, has a lazy eye, which required corrective surgery.
This child also has speech delays.
Stark County, Case No. 2019CA00120 11
{¶33} Caseworker Snyder further testified that the foster parents are meeting the
medical needs of the children. Tr. at 25. She stated that the children have been with their
foster family since September, 2018, that they are bonded with the foster family and the
foster family wishes to adopt the children. Tr. at 26-27, 31. Finally, she stated that it was
her opinion that permanent custody would be in the children’s best interest as the children
would have stability and permanence. Tr. at 28-32.
{¶34} Additionally, the Guardian ad Litem for the children also agreed that
permanent custody is in the best interests of the children.
{¶35} Based on the foregoing, we find that the trial court’s finding that permanent
custody was in the best interest of D.P. was supported by the evidence.
{¶36} Appellant’s second assignment of error is overruled.
{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Stark County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 1120