In re C.B. , 2019 Ohio 2783 ( 2019 )

[Cite as In re C.B., 2019-Ohio-2783.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: C.B., III : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, J.
:
:
: Case No. 19CA5
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County
Court of Common Pleas, Juvenile Division,
Case No. 2016-DEP-83
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 8, 2019
APPEARANCES:
For Richland County Children’s Services For Father - Appellant
EDITH GILLILAND DARIN AVERY
Richland County Children Services 105 Sturges Avenue
731 Scholl Road Mansfield, OH 44903
Mansfield, OH 44907
Richland County, Case No. 19CA5 2
Gwin, P.J.
{¶1} Appellant C.B. Jr. appeals from the January 17, 2019 judgment entry of the
Richland County Court of Common Pleas, Juvenile Division, overruling his objections to
the magistrate’s decision, terminating his parental rights, and granting permanent custody
of C.B. to the Richland County Children Services Board (“RCCSB”).
Facts & Procedural History
{¶2} C.B. Jr. is the father of C.B., III, (“C.B.”) born May 20, 2009. D.C. is the
mother of C.B. C.B. has two biological siblings. On September 8, 2016, RCCSB filed a
complaint of dependency with regard to C.B. The complaint alleged, in part, that Mother
has three active warrants for her arrest for child endangerment, has left the state, and
has no contact with her children. Further, that Father is charged with aggravated
trafficking, possession, and paraphernalia, has not maintained contact with his children
or RCCSB, and C.B. observed Father selling drugs. The trial court appointed Dawn
Fesmier Pigg as guardian ad litem (“GAL”) for C.B. on September 19, 2016.
{¶3} On September 28, 2016, the magistrate held a dispositional hearing. Father
stipulated to a finding of dependency. The trial court found C.B. to be dependent and
placed him into the temporary custody of RCCSB with a protective supervision order. The
trial court found RCCSB engaged in reasonable efforts to prevent the continued removal
of the child from his home and found those efforts have been unsuccessful given Father’s
felony conviction, Father’s ensuing incarceration, and Mother’s whereabouts being
unknown.
{¶4} On December 2, 2016, the magistrate held a further dispositional hearing.
The magistrate found, by clear and convincing evidence, that C.B. is dependent as to
Richland County, Case No. 19CA5 3
Mother and Father and temporary custody to RCCSB is in the best interest of C.B. due
to Father’s lack of participation with the case plan, his current incarceration, and Mother’s
abandonment of the children and unwillingness to return to Ohio. The magistrate found
RCCSB made reasonable efforts to prevent placement. On January 26, 2017, the trial
court adopted and approved the case plan. The magistrate held ninety-day review
hearings in February of 2017 and June of 2017, and found it was in C.B.’s best interest
to remain in the temporary custody of RCCSB.
{¶5} On August 11, 2017, RCCSB filed a motion seeking permanent custody of
C.B. The trial court dismissed the motion for permanent custody after RCCSB filed a
motion to extend temporary custody. On January 4, 2018, the magistrate found it was in
C.B.’s best interest to extend temporary custody for six months. Mother filed a motion for
visitation on January 16, 2018. RCCSB filed a motion for permanent custody on February
20, 2018. On June 14, 2018, Father filed a motion for visitation.
{¶6} The GAL filed a report on July 18, 2018. The GAL stated Father was
released from prison and called her approximately 30 days after his release to schedule
an office conference. During the office conference, Father informed the GAL he was
staying at a local homeless shelter and mentioned relocating to Cleveland. While Father
told the GAL he completed several programs while incarcerated, he did not sign the
requested releases for the GAL to obtain verification of completion of these programs.
The GAL had not heard back from Father as to his progress. The GAL stated C.B. is
doing extremely well in school and was nominated for the Talented and Gifted Program.
The GAL stated that while there are a number of children in the foster home, the foster
family is clearly bonded to the children and the children to them. The foster parents have
Richland County, Case No. 19CA5 4
encouraged a relationship with the maternal great-grandmother of the children. The GAL
recommended permanent custody of C.B. be given to RCCSB, as the GAL has never met
Mother and because Father is not in a position to care for the children. Further, that case
plan compliance cannot be confirmed for either parent.
{¶7} The magistrate conducted a trial on RCCSB’s motion for permanent custody
and Father’s motion for visitation on July 18, 2018.
{¶8} Charlotte Wancha (“Wancha”) is the child’s maternal great-grandmother.
She has known the children ever since they were born and is familiar with the parents.
Wancha testified the children did not get the proper care, as the house was dirty, the
children were dirty, and there was not enough food for the children. Wancha tried to bring
food and help them. The children were present in the home when Wancha smelled
marijuana in the home. Wancha still maintains contact with the children and testified they
are really well behaved and are a lot better than they were.
{¶9} Father testified he completed a mental health risk assessment done by the
psychological department within the Lorain Correctional Institution and also completed a
drug and alcohol abuse assessment by Recovery Services while in prison. Father
completed several programs in prison with regards to anger and stress management.
Father stated he has made mistakes, but loves his children and would do anything for
them. Father believes if he is given 90 to 180 days, he could be financially stable and get
his children back.
{¶10} Father testified he is living at a homeless shelter. After he leaves there,
Father intends to move to Cleveland where he would sleep at a business for thirty to sixty
days until he has enough money to get a house. Father and Mother are still married.
Richland County, Case No. 19CA5 5
Father is trying to get Mother into rehab now and still loves her. Father video chats with
Mother several times per week and Mother currently uses heroin, methamphetamine, and
cocaine. Mother told Father she gets money for drugs from prostitution. Father does not
believe Mother is an appropriate parent to the children. Mother made allegations of
domestic violence against him. Father originally was charged with two counts of
aggravated drug trafficking and one count of possession. Father pled guilty to
possession, a third degree felony, and was sentenced to two years in prison. After
Father’s arrest, the children did not return to him. Father admitted that prior to his
incarceration, he did not do any of the voluntary case plan items.
{¶11} Father believes it is in the best interest of the children to be returned to his
custody because he wants his children to know he is always going to be there for them.
Father testified he made some mistakes, but he was going through depression and
anxiety because his wife left him, he could not pay his bills, and since he could not afford
to feed his children, he had to sell drugs.
{¶12} Father stated he went to see the GAL thirty days after he was released from
prison. Father testified he attempted to call to make appointments, but did not leave a
message. On cross-examination, Father stated he did not currently have a house to go
home to, does not have a job or income to provide for his children, and has not completed
his case plan.
{¶13} Alexandra Hokans (“Hokans”) is an intake caseworker at RCCSB. Hokans
first investigated the family in 2014 when there were concerns of drugs use, poor home
conditions, lack of supervision of the children, and domestic violence between Mother
and Father. In 2014, she did not have enough to proceed past a voluntary investigation,
Richland County, Case No. 19CA5 6
so the case was closed. In 2015, Hokans again investigated the family for concerns of
drug use, lack of supervision, and poor home conditions. That case was also closed. In
August of 2015, there was a neglect report filed with concerns of lack of supervision of
the children when they were living with Father and Mother’s whereabouts were unknown.
The family did not want to cooperate with ongoing case services, so the case was closed.
In October of 2015, there were concerns of physical abuse. Father was not willing to
cooperate, so they interviewed the children at school. It appeared as if Father hit one of
the children. Father denied hitting the child. At that point, the agency involved the police.
Father was arrested on an old warrant and he then agreed to a safety plan where he
voluntarily placed the children with a family friend. Hokans testified Father was very hard
to get ahold of and when she met him in person, Father was very resistant to allowing her
access to the home. Hokans talked with Father about drug and alcohol treatment
services, as well as parenting education. Father told Hokans he was not interested in
those and felt he did not need them. Hokans transferred the case in November of 2015.
{¶14} Dennis Rickett (“Rickett”) is a caseworker at RCCSB and was the
caseworker for the children. In 2015, there was an accusation of physical abuse of one
of the children by Father. The case plan for Father required a substance use assessment,
emotional and mental health assessment, and to provide for the basic needs of the
children. Rickett offered Father drug and alcohol assessment services and mental health
assessment services, but Father refused. Rickett testified Father is not a fan of RCCSB
and was very reluctant to do anything RCCSB wanted him to do. Rickett did an
unannounced home visit in February of 2016. Rickett described Father as unwilling to
work with RCCSB. Father would not sign releases for the children or himself. The
Richland County, Case No. 19CA5 7
children were placed in foster care on June 8, 2016. During the course of time that Rickett
was assigned to this case, he has never known Father to be employed. Father told
Rickett the reason he was selling drugs was to get the income to support his children.
Rickett testified Father has not completed or been able to prove that he has completed
all or any of the case plan objectives. Prior to Father’s incarceration, Father attended two
out of four scheduled visits with the children. Father sent a few letters and drawings to
the children while he was in prison.
{¶15} Rickett testified the children are very dependent on each other. C.B.
considers himself part of the foster family. Rickett stated since the children were placed
in the temporary custody of RCCSB, they have not returned to the custody of Father.
Rickett talked to the children and they told him they like where they are at and they want
to stay where they are at. At the time he transferred the case, Rickett had not been
successful in locating or identifying any family member that would be willing to take legal
custody of the children. Rickett believes permanent custody to RCCSB is in the best
interest of the children because the children have adjusted well, consider the placement
that they are in as home, they consider the foster family their family, their behavior is
better, and they thrive in school. Rickett testified the placement has had a positive impact
on them.
{¶16} Rickett attempted to take some drug screens of Father, but Father is not a
fan of the test because he believes they can falsely read. Thus, Father declined to take
the drug screens. The mental health concern Rickett had with regard to Father is Father’s
anger. However, Father would not sign any releases for RCCSB to get any sort of
Richland County, Case No. 19CA5 8
records. When the children were removed from Father’s home, there were concerns
about their behavior. This behavior has improved in foster care.
{¶17} On cross-examination, Rickett stated he attempted to contact Father every
month and he made at least three attempts every month if he did not make contact with
Father. Father’s attitude remained consistent until he was incarcerated. Rickett met with
Father in prison and Father’s attitude was better. Father was concerned about the
children and asked about them. Rickett did not see drug paraphernalia in Father’s home,
but Father often acted irrational towards Rickett. Rickett discussed the case plan
requirement that he complete a mental health assessment and follow recommendations
with Father and Father did not feel he needed to let RCCSB know anything about his
mental health issues. After Father was released from prison, Rickett told Father if he
could not get the records from the prison, Father should do the assessments locally again
and obtain a report. Father did provide Rickett with some certificates. When Father told
Rickett he was willing to do what he needed to do to get his children back, Rickett told
him to obtain the records from prison or do the assessments at another agency and follow
their recommendations.
{¶18} On re-direct, Rickett testified there is nothing in the certificates submitted by
Father that provides him with the information he needs to determine whether or not Father
has done a mental health assessment or drug and alcohol assessment and there is
nothing in there that would satisfy him that Father has successfully completed the case
plan objectives.
{¶19} K.S. is the foster father to the children. K.S. testified the children are
adjusted into the household and are doing well. When the children first came into the
Richland County, Case No. 19CA5 9
home, the children were acting out. To address those behaviors, K.S. and his wife were
consistent with consequences and rewards. K.S. and his wife have a very close
relationship with the children. As far as K.S. knows, the children have had no contact
with Father since they have been in his home. However, Father did send a few letters to
the children. K.S. did not read them to children, as he believes it is up to the caseworker
to do that.
{¶20} Noelle Grate (“Grate”) has been the ongoing caseworker for the children
since January of 2018. Grate met with Father in prison and every month since his release
from prison. Father told Grate when he was released from prison he was going to get an
income and resources. It is Father’s position that he had completed assessments in
prison. However, Grate does not have documentation of any completed assessments.
Grate has certificates from classes he completed in prison, but no mental health or drug
and alcohol assessment. Grate discussed with Father what RCCSB would need to be
satisfied that he successfully completed those case plan objectives. Father told Grate he
was trying to get the records. The documents Father provided do not provide Grate with
enough information to be able to determine whether Father successfully completed either
a mental health assessment or a drug and alcohol assessment.
{¶21} Grate received a phone call from Father the day after his release from
prison and Father informed her he did not have a phone number or address. Grate
wanted Father to contact the GAL with regards to his request for visitation. Grate had
discussions with Father about service providers to help assist him in completing his case
plan objectives, but Father did not want to use any service providers RCCSB typically
Richland County, Case No. 19CA5 10
uses because Father did not want RCCSB to have the information included in his
assessment.
{¶22} Grate testified the children are doing very well in the foster home. The
children do not ask about Father. They are very bonded to each other. The children are
very bonded to the foster parents. Grate believes it is in the children’s best interest for
permanent custody to be granted to RCCSB because the children are doing well in
school, they are bonded with the foster parents, and there is no evidence that either
parent has the means to provide for their basic needs.
{¶23} On cross-examination, Grate testified she had Father do one oral drug
screen and it came back negative. Grate testified that counseling for anger does not
comply with the case plan requirement for a mental health assessment. Grate stated
Father told her he was diagnosed with anxiety, depression, narcissism, and low self-
esteem, but Grate needs a mental health assessment to determine if these are valid
diagnoses.
{¶24} The GAL stated it is her recommendation that permanent custody be
granted to RCCSB and this is in the children’s best interest. The GAL stated Father has
not made any progress on his case plan, he has no job, no place to live, he would not
sign a release for the information from the prison, he is a stranger to the children, and
they are happy where they are.
{¶25} On August 21, 2018, the magistrate issued a decision with findings of fact
and conclusions of law. The magistrate made the following findings of fact: following a
substantiated finding of abuse, C.B. and his siblings were placed outside the home prior
to the filing of the complaint in this case with a family friend and that placement concluded
Richland County, Case No. 19CA5 11
when the family friend was no longer willing to care for the children; C.B. has resided
outside of his home continuously since September 29, 2016; the presenting problems
underlying the finding of dependency as to Father were his lack of participation with the
case plan and his incarceration; the case plan required Father to address his substance
abuse, address his mental health issues, and provide for C.B.’s basic needs; the
caseworker met monthly with Father while he was incarcerated; while in prison Father
participated in numerous programs, but none of the programs satisfy the case plan
objectives; Father declined services after his release from prison on April 29, 2018
because he did not want RCCSB to have access to any information about him; Father
has not engaged in the required services; Father is not employed and is homeless; during
the time the children were placed out of Father’s care beginning in 2015, Father refused
to engage in services, failed to comply with visitation, and his whereabouts were often
unknown; in 2016, Father was arrested and was convicted of aggravated possession;
prior to the children being removed from Father’s care, C.B. and his siblings were routinely
left without supervision and there was continued concern about drug use in the home;
Father’s time since the complaint was filed in this case was spent in the penal institution
until April 29, 2018; Father has been in contact with Mother and acknowledges Mother is
using heroin and crack cocaine, and is supporting herself by prostituting herself; Father
has a number of mental health diagnoses, but is not receiving treatment; C.B. is thriving
in foster care and is bonded to the foster family; and both the GAL and caseworker believe
it is in the best interest of C.B. for permanent custody to be granted to RCCSB.
{¶26} In her conclusions of law, the magistrate found C.B. has been in the
temporary custody of RCCSB for more than twelve months of a consecutive twenty-two
Richland County, Case No. 19CA5 12
month period as he has been in the temporary custody of RCCSB since December of
2016. The magistrate also found, by clear and convincing evidence, that C.B. cannot be
placed with either parent within a reasonable period of time and should not be placed with
his parents because Father, despite reasonable case planning efforts in the form of
mental health and substance abuse referrals and caseworker counseling, has failed
consistently and repeatedly to position himself to assume the responsibilities associated
with the full-time care of his child. Further, Father has demonstrated a lack of commitment
towards his child by his consistent failure to address his own deficiencies. The magistrate
found Father abandoned C.B. because since C.B. was placed in temporary custody of
RCCSB, Father has exercised periods of time exceeding ninety days where he has failed
to visit or otherwise communicate with the child.
{¶27} The magistrate considered the relevant factors in R.C. 2151.414(D) and
determined as follows with regard to the best interest of the child: (a) C.B.’s last contact
with Father was September 2016 and prior thereto was December 28, 2015, the child has
been in his current foster placement for two years and is comfortable and happy in the
home and is fully integrated into their home; (b) C.B. is nine years old and has no desire
to live anywhere else but with the foster parents; (c) C.B. has been in his current foster
placement since September of 2016 and was placed out of the home in October of 2015;
and (d) a legally secure placement can best be achieved by the permanent custody to
RCCSB.
{¶28} The magistrate additionally found: RCCSB has made reasonable efforts to
eliminate the continued removal of the child from his home and to return the child home
by providing relevant and reasonable case planning and management to assist the
Richland County, Case No. 19CA5 13
biological parents in accessing applicable and appropriate case plan services; it is not in
the child’s best interest to return to either of his parents, and it is in the child’s best interest
that he remain placed out of the home of his parents. The magistrate granted permanent
custody of C.B. to RCCSB and terminated Father’s parental rights.
{¶29} Father filed objections to the magistrate’s decision on August 28, 2018. The
trial court issued a judgment entry on January 17, 2019 overruling Father’s objections to
the magistrate’s decision and adopting and approving the magistrate’s decision.
{¶30} Father appeals the January 17, 2019 judgment entry of the Richland County
Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶31} “I. FATHER-APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN THAT HIS TRIAL LAWYER FAILED TO PROCURE INFORMATION THAT
MAY HAVE DEMONSTRATED SUBSTANTIAL PLAN COMPLIANCE.
{¶32} “II. THE COURT ERRED IN FINDING THAT IT WAS IN THE BEST
INTEREST OF THE MINOR CHILD TO BE PLACED IN THE PERMANENT CUSTODY
OF RCCS.
{¶33} “III. TO THE EXTENT THAT ITS DECISION RELIED ON A FINDING THAT
THE CHILD COULD NOT BE PLACED WITH EITHER PARENT WITHIN A
REASONABLE PERIOD OF TIME AND SHOULD NOT BE PLACED WITH A PARENT,
THE COURT ERRED IN GRANTING PERMANENT CUSTODY BECAUSE IT ERRED IN
FINDING THAT IT COULD NOT PLACE THE CHILD WITH FATHER-APPELLANT
WITHIN A REASONABLE PERIOD OF TIME.”
Richland County, Case No. 19CA5 14
Permanent Custody
{¶34} “[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).
{¶35} 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). “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. 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).
{¶36} 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).
{¶37} 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
Richland County, Case No. 19CA5 15
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶38} 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 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.
{¶39} 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.
I.
{¶40} In his first assignment of error, Father contends he received ineffective
assistance of counsel because his trial lawyer failed to procure information that may have
demonstrated substantial case plan compliance. Father argues his counsel failed to
Richland County, Case No. 19CA5 16
obtain the records from the prison about his mental health assessment and these could
have demonstrated case plan compliance. We disagree with Father.
{¶41} We have recognized ineffective assistance claims in permanent custody
appeals. In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003-Ohio-4576. Our
standard of review for an ineffective assistance claim in such a situation applies the rule
of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re
Fell, 5th Dist. Guernsey No. 05 CA 8, 2005-Ohio-5790.
{¶42} These cases require a two-pronged analysis in reviewing a claim for
ineffective assistance of counsel. State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373
(1989). First, we must determine whether counsel’s assistance was ineffective, i.e.,
whether counsel’s performance fell below an objective standard of reasonable
representation and was violative of any of his or her essential duties to the client. If we
find ineffective assistance of counsel, we must then determine whether or not the defense
was actually prejudiced by counsel’s ineffectiveness such that the reliability of the
outcome of the trial is suspect. This requires a showing that there is a reasonable
probability that but for counsel’s unprofessional error, the outcome of the trial would have
been different. Id. However, “[t]here are countless ways to provide effective assistance
in any given case.” Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Trial counsel is entitled to a strong presumption that all decisions fall within
the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St. 3d 673,
693 N.E.2d 267 (1998).
{¶43} But even if an appellant initially shows that counsel was ineffective, he or
she must then satisfy the second prong of the Strickland test. In other words, it is well-
Richland County, Case No. 19CA5 17
established that a reviewing court “need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
{¶44} Upon review, we find no basis to conclude appellant was prejudiced under
Strickland by any failure to procure information that may have demonstrated substantial
case plan compliance. As this Court has held, the successful completion of a case plan
is not dispositive on the issue of reunification. In the Matter of A.H., 5th Dist. Richland
No. 18CA96, 2019-Ohio-1509. While it may be in Father’s best interest to complete the
case plan, this is only one factor for the trial court to consider. Id. Where a parent has
participated in his case plan and completed most or all of the plan requirements, a trial
court may still properly determine that such parent has not substantially remedied the
problems leading to agency involvement. In the Matter of A.L. and J.L., 5th Dist.
Guernsey No. 11 CA 23, 2012-Ohio-481. The GAL stated Father is not in a position to
care for the children. Father is living in a homeless shelter, has no job, no financial
stability, and has no concrete plan when his time at the homeless shelter is up. The social
workers testified Father consistently resisted help and assistance from RCCSB and was
unwilling to work with them. Grate testified Father cannot provide for the basic needs of
the children. Further, specifically with regard to the documents at issue, the GAL testified
Father would not sign releases for her to obtain verification of these programs and
assessments from the prison. Thus, Father failed to take the steps he needed to take to
obtain the records from the prison that may have demonstrated case plan compliance.
{¶45} Father’s first assignment of error is overruled.
Richland County, Case No. 19CA5 18
II.
{¶46} In his second assignment of error, Father contends the trial court erred in
finding it was in the best interest of the children to be placed in the permanent custody of
RCCSB.
{¶47} 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).
{¶48} 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 placement and whether that type of placement can be achieved
without a grant of permanent custody; and (e) whether any of the factors in divisions (E)(7)
to (11) of this section apply in relation to the parents and child. No one element is given
greater weight or heightened significance. In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-
1104, 862 N.E.2d 816.
Richland County, Case No. 19CA5 19
{¶49} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. In re Patterson, 134 Ohio App. 3d 119,
730 N.E.2d 439 (9th Dist. 1999); In re Adoption of Ridenour, 61 Ohio St. 3d 319, 574
N.E.2d 1055 (1991). The court must consider all of the elements in R.C. 2151.414(D) as
well as other relevant factors. There is not one element that is given greater weight than
the others pursuant to the statute. In re Schafer, 11 Ohio St. 3d 498, 2006-Ohio-5513,
857 N.E.2d 532. In re Schafer made it clear that a trial court’s statutory duty, when
determining whether it is in the best interest of a child to grant permanent custody to an
agency, does not include finding by clear and convincing evidence that no suitable relative
was available for placement. Id. R.C. 2151.414 “requires the court to find the best option
for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a)
through (d). The statute does not make the availability of a placement that would not
require a termination of parental rights an all-controlling factor. The statute does not even
require the court to weigh that factor more heavily than other factors.” Id. at 111.
{¶50} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App. 3d
309, 315, 642 N.E.2d 424 (8th Dist. 1994).
{¶51} We find the trial court did not err in finding that granting permanent custody
to RCCSB was in the best interest of C.B. The GAL testified Father is not in a position to
care for the children, as he is living in a homeless shelter, has no job, and no financial
stability. Rickett, Grate, and Hokans’ testimony demonstrates that Father consistently
resisted help and assistance from RCCSB and was unwilling to work with them on his
Richland County, Case No. 19CA5 20
case plan requirements. Father confirmed he has no home, no income to provide for the
children, and has not completed his case plan. Father testified he sold drugs and ended
up in prison when he could not afford to pay the bills. Rickett testified Father told him he
sold drugs to get income to support the children. Rickett also testified Father has not
completed his case plan. Grate testified Father is not able to provide for the basic needs
of the children.
{¶52} The GAL stated the children are doing well and are bonded with the foster
family. Rickett testified the children want to stay where they are at. Rickett believes
granting permanent custody to RCCSB is in the best interest of the children because the
children are adjusted well, the placement has had a positive impact on them, they
consider the foster home their home, their behavior is improved, and they are thriving in
school. Grate testified the children are doing well and are bonded to the foster family.
Grate believes is in the best interest of the children for permanent custody to be granted
to RCCSB. The GAL also believes is in the best interest of the children for permanent
custody to be granted to RCCSB.
{¶53} We find the trial court properly considered and weighed the factors in R.C.
2151.414(D) and the trial court’s conclusion that the granting of permanent custody to
RCCSB is in the best interest of C.B. is supported by competent and credible evidence.
Father’s second assignment of error is overruled.
III.
{¶54} In his third assignment of error, Father argues that, to the extent the trial
court’s decision relied on a finding that the children could not be placed with Father within
Richland County, Case No. 19CA5 21
a reasonable period of time, the trial court erred in finding it could not place the children
with Father within a reasonable period of time.
{¶55} We first note the trial court determined that, pursuant to R.C.
2151.414(B)(1)(d), C.B. had been in the temporary custody of the agency for a period of
time in excess of twelve of the prior twenty-two consecutive months. As findings under
R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, each is
independently sufficient to use as a basis to grant the motion for permanent custody. In
re Daltoni, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007-Ohio-5805. This finding alone,
in conjunction with a best interest finding, is sufficient to support the grant of permanent
custody. In re Calhoun, 5th Dist. Stark No. 2008CA00118, 2008-Ohio-5458.
{¶56} However, with regards to C.B. and even if we considered Father’s argument
with regards to C.B., the trial court did not commit error in determining the child cannot
be placed with Father at this time or within a reasonable period of time.
{¶57} 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. The
relevant portions of R.C. 2151.414(E) are as follows:
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
Richland County, Case No. 19CA5 22
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 available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties. * * *
{¶58} A review of the record supports the trial court’s conclusion that C.B. cannot
be placed with Father within a reasonable time. Rickett, Grate, and Hokans testified
Father has continually and consistently resisted help and assistance from RCCSB and
has been unwilling to work with them in completing his case plan, despite their efforts.
Throughout most of the case, Father was incarcerated. The GAL and Grate testified
Father is not in a position to take care of the children and cannot provide for their basic
needs, as he is homeless, has no job, and no financial stability. Further, though Father
thinks he might have a job in Cleveland, he was unable to provide details of what the
income would be and testified he would likely have to sleep at the business for several
months. Father has no concrete plan for when his time at the homeless shelter is up.
The concerns that the social workers had at the outset of the case still remain.
{¶59} We find there is competent and credible evidence to support the trial court’s
finding that C.B. cannot be placed with Father within a reasonable amount of time
because the delay in completing the case plan objectives and the failure of Father to
reduce the risks posed when the child was first removed are directly attributable to the
actions and inactions of Father. Father’s third assignment is overruled.
Richland County, Case No. 19CA5 23
{¶60} Based on the foregoing, we find the trial court did not abuse its discretion in
granting permanent custody of C.B. to RCCSB.
{¶61} Father’s assignments of error are overruled and the January 17, 2019
judgment entry of the Richland County Court of Common Pleas, Juvenile Division, is
affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur