In re K.B. , 2015 Ohio 3725 ( 2015 )

[Cite as In re K.B., 2015-Ohio-3725.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: K. AND D.B. : JUDGES:
AND L.F. :
: Hon. Sheila G. Farmer, P.J.
NEGLECTED/DEPENDENT : Hon. John W. Wise, J.
CHILDREN : Hon. Patricia A. Delaney, J.
:
: Case No. 2015AP050021
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No. 13JN00223
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 11, 2015
APPEARANCES:
For Appellant David Blackwell: For Appellee Tuscarawas Co. DJFS:
MARK PERLAKY KAREN ROSS QUINLAN
111 W. Main St. 389 16th St. S.W.
Newcomerstown, OH 43832 New Philadelphia, OH 44663
Guardian Ad Litem:
KAREN DUMMERMUTH
349 East High Ave.
P.O. Box 494
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015AP050021 2
Delaney, J.
{¶1} Appellant David Blackwell appeals from the April 3, 2015 Judgment Entry
of the Tuscarawas County Court of Common Pleas, Juvenile Division, placing K.B. in
the permanent custody of appellee Tuscarawas County Job & Family Services (the
"Agency").
FACTS AND PROCEDURAL HISTORY
{¶2} Nicole Elkins ("Mother") is the biological mother of three children: K.B.
(D.O.B. 10/22/09), D.B., and L.F.1 Appellant is the biological father of K.B. Mother
stipulated placement of the children with the Agency was in the children's best interest
and is not a party to this appeal.
{¶3} Appellant and Mother were in a relationship for several years but were not
married. They lived together in Alaska while appellant was in the Army; Mother
returned to her home state of Connecticut for K.B.'s birth in 2009 because appellant was
deployed. Appellant was a Blackhawk mechanic and served in Iraq. Due to an incident
of underage drinking and a period spent AWOL, appellant was demoted and eventually
discharged from the Army, albeit "under honorable conditions."
{¶4} The relationship between appellant and Mother was fraught with domestic
violence beginning in Alaska and continuing upon their eventual return to Ohio.
Appellant was convicted of three domestic violence offenses against Mother including a
fourth-degree felony violation when Mother was eight months pregnant. This offense
resulted in appellant's incarceration in a community-based corrections facility,
1
The trial court also awarded permanent custody of D.B. and L.F. to the Agency in the
underlying order. Those children have different fathers and their custody is not at issue
in this appeal.
Tuscarawas County, Case No. 2015AP050021 3
S.R.C.C.C. Mother obtained a protective order against appellant which is still in effect
and expires in June 2017. Appellant and Mother have no relationship currently and had
no contact during the pendency of this case. Appellant now lives with a girlfriend, her
children, and the child they have together.
{¶5} In light of the domestic violence history and protective order, appellant did
not have any contact with K.B. for a period of two and a half years beginning in
November 2011. Sometime in 2012, appellant reportedly attempted to seek visitation
with K.B. in Wayne County, where Mother lived at the time. Appellant testified he
agreed to issuance of the protection order against him on the condition he would be
allowed to seek visitation with K.B.
{¶6} Appellant would not have any contact with K.B. however, until April 22,
2014.
{¶7} During the interim, Mother lived in Tuscarawas County with the children
and the Agency was intermittently involved with the family, culminating in the events of
late May, 2013. At that time, D.B. was admitted to the hospital for respiratory problems.
The hospital was unable to locate Mother for a meeting about the child's condition and
called police. Mother's home was subsequently found to be in deplorable condition,
described as filthy and flea-infested.
{¶8} At the shelter care hearing on June 3, 2013, Mother was granted
supervised visitation and no visitation was ordered for any of the fathers, including
appellant. At the adjudication on July 3, 2013, the children were found to be neglected
and dependent. Mother and appellant were ordered to comply with the Agency's case
plan.
Tuscarawas County, Case No. 2015AP050021 4
{¶9} Appellant petitioned for visitation with K.B. on February 25, 2014 and was
granted supervised visitation at the Agency, resulting in a total of 17 visits between K.B.
and appellant. Appellant terminated the visits because his work schedule at the time
did not permit him to have visitation time on Mondays. Agency workers provided
information on other locations for supervised visitation including at "P.F.C.S."
Supervised visits at P.F.C.S. could have been paid for by the Agency if appellant had
provided requested pay stub verification. Had appellant paid for the visits on his own,
the visits would have cost between $35 and $50 on a sliding scale.
{¶10} Appellant's last visit with K.B. was on September 15, 2014.
{¶11} During the pendency of the case, appellant made some progress on the
case plan, countermanded by his failure to follow through. He obtained a psychological
evaluation, but did not follow up with verifiable individual counseling. At different times
appellant was employed and purportedly working 12 hours a day, six days a week, but
by the time of the permanent custody hearing he was unemployed, having been fired for
harassing another employee. At the time of the hearing appellant was living with his
girlfriend in an apartment in Strasburg, but this was preceded by long periods of
unstable housing involving intermittent stays in a number of locations, evictions, and
homelessness.
{¶12} Appellant's current living situation is with his girlfriend, Nora, their two
children together, and one child of Nora's. Appellant has admitted to caseworkers that
Nora is the primary caretaker when he is working but needs help managing the children.
There was some evidence that Nora told a worker she was overwhelmed with the
children already present in the home, absent K.B.
Tuscarawas County, Case No. 2015AP050021 5
{¶13} Appellant acknowledged his history of domestic violence against Mother
but pointed out he successfully completed probation and has not had a criminal offense
since 2012. Nevertheless, when asked to describe each incident during the permanent
custody trial, he minimized his culpability and deflected blame on Mother. Appellant
completed anger management treatment at Melymbrosia but it took him two and a half
years to do so.
{¶14} Positive evidence at the hearing included the testimony of the family
service aide who provided individual parenting counseling to appellant and Nora. The
aide testified she observed real progress in appellant's parenting skills and in his
relationship with K.B.; appellant willingly asked her advice about parenting issues and
followed through with her recommendations.
{¶15} Just as the relationship with K.B. was getting on the right track, however,
appellant terminated the Monday visitations because of his work schedule.
{¶16} Evidence showed Agency workers told appellant he could have
supervised visitation at other approved locations during times that would work with his
schedule. Appellant testified he was not able to pay for those visits. Testimony
established, though, that if appellant had verified his income with pay stubs, the cost of
visitation at the other locations would be covered in whole or in part. Even if appellant
paid for the visits out of pocket, the visits would cost $35 to $50 each. Evidence also
established appellant had income that would have allowed him to meet these costs, and
the Agency and guardian ad litem worked with him to establish a budget, but appellant
did not follow through with steps necessary to establish another location for visitation.
Tuscarawas County, Case No. 2015AP050021 6
{¶17} Ultimately visitation was denied because the Agency determined too much
time had elapsed since appellant last saw K.B.
{¶18} The Agency filed a motion to modify disposition on November 7, 2014 and
a hearing was held on March 26, 2015. The trial court awarded permanent custody of
all three children to the Agency by Judgment Entry dated April 3, 2015.
{¶19} It is from this decision appellant now appeals.
{¶20} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶21} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY
SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
THE CHILD [K.] COULD NOT BE PLACED WITH FATHER IN A REASONABLE
AMOUNT OF TIME, AND THAT AN AWARD OF PERMANENT CUSTODY WAS IN
THE CHILDREN'S BEST INTEREST."
ANALYSIS
{¶22} Appellant argues the trial court should not have awarded permanent
custody of K.B. to the Agency. We disagree. This case comes to us on the expedited
calendar and shall be considered in compliance with App. R. 11.2(C).
{¶23} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
Tuscarawas County, Case No. 2015AP050021 7
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, 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.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all
the essential elements of the case supports the trial court's judgment, an appellate court
must affirm the judgment and not substitute its judgment for that of the trial court. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978).
{¶24} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St. 3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence 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).
{¶25} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶26} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that 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
Tuscarawas County, Case No. 2015AP050021 8
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; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶27} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial
court will usually 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.
{¶28} In this case, the trial court found K.B. has been in the temporary custody
of the Agency for 12 or more months of a consecutive 22-month period. As we have
previously noted, pursuant to R.C. 2151.414(B)(1)(d), this finding alone is sufficient to
affirm the grant of permanent custody to the Agency. In re D.R., 5th Dist. Ashland No.
14-COA-021, 2014-Ohio-5658, ¶ 30. The trial court's conclusion on this point is
supported by clear and convincing evidence; the children were placed in temporary
custody on June 3, 2013 and adjudicated neglected and dependent on July 3, 2013.
[Mother regained custody on June 23, 2014, but this interlude lasted only until July 31,
2014.] The children have remained in Agency custody since July 31, 2014 and the
motion for permanent custody was filed on November 7, 2013. Appellant does not
contest this finding.
Tuscarawas County, Case No. 2015AP050021 9
{¶29} Appellant does dispute the trial court's finding the child cannot be returned
within a reasonable time pursuant to R.C. 2151.414(B)(1)(a). If the child is not
abandoned or orphaned, the focus turns to whether the child cannot be placed with
either parent within a reasonable period of time or should not be placed with the
parents. Under R.C. 2151.414(E), the trial court must consider all relevant evidence
before making this determination. The trial court is required to enter such a finding if it
determines, by clear and convincing evidence, that one or more of the factors
enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of the child's
parents.
{¶30} The trial court determined that K.B. could not be placed with appellant
within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the following
findings:
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 parents to remedy the problems that
initially caused the child to be placed outside the home, the parent
has failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child's home.
In determining whether the parents have substantially remedied
those conditions, the court shall consider parental utilization of
medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made
Tuscarawas County, Case No. 2015AP050021 10
available to the parents for the purpose of changing parental
conduct to allow them to resume and maintain parental duties.
{¶31} A review of the record supports the trial court's decision that K.B. cannot
be placed with appellant within a reasonable time. (We note K.B. was not removed from
appellant's home but from Mother's, having not had meaningful contact with appellant
for some time). Appellant took steps to address his anger management but missed a
significant number of group therapy sessions. His attendance at individual counseling
at P.F.C.S. was sporadic. His employment history is also sporadic. The Agency made
repeated efforts to keep appellant on track but he was unable or unwilling to produce
income verification. The hearing also established appellant's readiness to blame others
and become angry when the fault lies with his own "lack of initiative," as described in his
psychological evaluation. Ultimately, we agree that K.B. cannot be placed with
appellant within a reasonable period of time.
{¶32} We next turn to the issue of best interest. 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 the court's determination will have on the
lives of the parties concerned.” In re Mauzy Children, 5th Dist. No.2000CA00244, 2000
WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App. 3d 309, 316, 642 N.E.2d
424 (8th Dist.1994). The trial court determined it was in the best interest of K.B. to be
placed in the Agency's permanent custody and we agree.
{¶33} K.B.'s relationship with appellant consists of 17 supervised visits.
Unfortunately the evidence established those visits were insufficient to create a
Tuscarawas County, Case No. 2015AP050021 11
meaningful bond between K.B. and appellant. K.B. is currently placed in foster care
together with the only siblings he has ever known.2 K.B. is thriving in the foster home
and is bonded with his foster parents, who have expressed willingness to adopt the
children.
{¶34} K.B. deserves permanency, and adoption would benefit him. Clear and
convincing evidence supports the trial court's conclusion that it is in K.B.'s best interest
to grant permanent custody to the Agency.
{¶35} Appellant also argues the Agency did not make reasonable efforts to
reunify appellant with K.B. because he was attempting to re-establish visitation when
the Agency stopped visitations. We disagree with appellant's assertion that he
"attempted to look for alternate visitations and affordable fees that would work with his
schedule." Despite the Agency's efforts to help appellant establish visitation at
P.F.C.S., appellant failed to make those efforts a priority. He did not produce a pay stub
and it was all but impossible for workers to contact him because his phone was
disconnected.
{¶36} Our review of the record allows us to further find the trial court's findings of
fact are supported by clear and convincing evidence. Appellant has a significant anger
problem which has resulted in criminal penalties and estrangement from his child. He
was dilatory in completing anger management and individual counseling. Visitation with
K.B. was stopped at appellant's request, and despite his belated attempts to restart
visitation, he did not comply with the steps to do so.
2
The record in the instant case establishes only that an attempt was made at kinship
care but the effort was unsuccessful. Appellant does not suggest placement with a
family member is an alternative in this case.
Tuscarawas County, Case No. 2015AP050021 12
{¶37} Upon our review of the record in light of the pertinent statutory factors, we
find the record contains clear and convincing evidence which supports the trial court's
determination. The trial court did not err when it determined K.B. could not be placed
with appellant in a reasonable time. The granting of permanent custody of K.B. to the
Agency was made in consideration of the child's best interests and was not an abuse of
discretion.
CONCLUSION
{¶38} Appellant's sole assignment of error is overruled and the judgment of the
Tuscarawas County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J. and
Farmer, P.J.
Wise, J., concur.