In re N.R. , 2013 Ohio 2327 ( 2013 )

[Cite as In re N.R., 2013-Ohio-2327.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF N.R. : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2013CA00021
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2011JCV01464
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 3, 2013
APPEARANCES:
For-Appellee For-Appellant
QUAY COMPTON MARK OSTROWSKI
SCDJFS Stark County Public Defender
Canton, OH 44702 201 Cleveland Ave. S.W., Ste. 104
Canton, OH 44702
[Cite as In re N.R., 2013-Ohio-2327.]
Gwin, P.J.
{¶1} Appellant N.T. appeals from the January 10, 2013 judgment entry of the
Stark County Court of Common Pleas, Juvenile Division, terminating his parental rights
and granting permanent custody of N.R. to Stark County Department of Job and Family
Services (“SCDJFS”).
Facts & Procedural History
{¶2} N.R. was born on February 21, 2010 and is the biological child of Mother
and appellant N.T. (“Father”). On October 20, 2011, SCDJFS filed a complaint alleging
N.R. was a dependent, neglected, and abused child. The complaint alleged, in part,
that N.R. was taken to the hospital with serious burns on both of his hands and Mother
admitted she held N.R.’s hands under the hot water faucet when he would not calm
down. Further, that Mother and Father have a history of domestic violence. On
November 16, 2011, Father stipulated to a finding of abuse and stipulated to a case
plan provided by the SCDJFS to facilitate his reunification with N.R. In the case plan,
Father was ordered to: (1) complete a parenting evaluation at Northeast Ohio
Behavioral Health and follow all recommendations; (2) successfully complete Goodwill
parenting; (3) receive an evaluation at Quest and follow all treatment recommendations;
(4) maintain stable housing and employment; and (5) attend visitations with N.R.
weekly. On November 30, 2011, Mother stipulated to a finding of abuse and N.R. was
adjudicated an abused child as to both parents. Also on November 30, 2011, a
dispositional hearing was held and the trial court granted temporary custody of N.R. to
SCDJFS.
Stark County, Case No. 2013CA00021 3
{¶3} SCDJFS filed a motion for permanent custody of N.R. on September 12,
2012. SCDJFS alleged Father failed to comply with the recommendations from his
parenting evaluation and failed to maintain a consistent relationship with N.R., not
visiting N.R. since April 20, 2012. An annual review hearing was held on September 13,
2012. The judgment entry indicates Father was advised it was his responsibility to
confirm a release was signed for Quest records and to notify the guardian ad litem
about new housing and job. On October 22, 2012, Father filed a motion for first
extension of temporary custody, indicating he sought to continue to work on his case
plan. A hearing on the motion seeking permanent custody and Father’s motion for first
extension of temporary custody was held on December 12, 2012. Prior to the testimony
of the witnesses, Mother stipulated to permanent custody.
{¶4} At the hearing, Michaele Singleton (“Singleton”), the ongoing case
manager from SCDJFS, testified she met with Father to review the services required in
his case plan. Father was reluctant to complete some services. Singleton referred
Father to Stark Social Worker’s Network to assist him with a myriad of services,
including assistance with rent or housing certificates. Singleton stated Father utilized
these services for a period of time, but then stopped communicating with the agency.
Singleton stated after N.R. was placed in agency custody, Father’s visitation was
sporadic and he sometimes failed to appear at scheduled visits. After Father failed to
show for several visits, a plan was put into place whereby Father would call in to confirm
he was coming to the visit before N.R. was transported. Singleton testified Father did
not visit with N.R. from April 18, 2012 until September of 2012 when he first began
attending Goodwill parenting classes. Singleton attempted to contact Father during this
Stark County, Case No. 2013CA00021 4
time using the contact information she had, but she did not know his whereabouts.
Singleton left messages at the phone number she had for Father. Father called
Singleton one time during this time period, telling her he was having difficulties and
would have to suspend visitation with N.R.
{¶5} Singleton testified Father started Goodwill parenting classes in September
of 2012 and there were some concerns about his interactions with N.R. and thus the
further service of Intensive Parent Child Interaction program would be recommended at
the conclusion of the Goodwill parenting program. Singleton stated she does not
believe Father can provide care and support for N.R. because he does not have
housing or employment. Her concern is that Father would still not be stable in six
months in terms of maintaining a home, maintaining employment, and meeting the basic
needs of N.R. It is Singleton’s opinion that Father has not successfully completed his
case plan.
{¶6} When testifying about the best interest of N.R., Singleton stated he has
been in the same foster home since October of 2011. N.R.’s hands have healed after
extensive therapy and he is in good health. N.R. is bonded with his foster mother and is
traumatized when separated from her. Singleton testified no other family members
have come forward to seek custody of N.R. Father told Singleton there might be
relatives in Columbus interested in seeking custody of N.R., but no one has come
forward to express interest to Singleton. N.R. has a consistent routine every day,
including attending preschool. Singleton stated a bond between N.R. and Father did
exist, but has been severed due to a lengthy separation. Singleton testified the benefit
of permanency outweighs any harm of not seeing Father and Father cannot provide the
Stark County, Case No. 2013CA00021 5
same stability N.R. currently enjoys. Though the visits with Father went well and there
is a chance Father might be able to accomplish more of the case plan if temporary
custody is extended, Singleton testified she believes it is in the best interest of N.R. for
permanent custody to be granted to SCDJFS. It is Singleton’s opinion that additional
time would not correct the damage done by Father failing to visit from April to
September and failing to address the concerns noted with Father’s ability to parent.
{¶7} Dr. Aimee Thomas (“Thomas”) of Northeast Ohio Behavioral Health
conducted a parenting assessment on Father. There was no indication Father would
harm his son. Thomas had concerns with Father’s level of commitment to his older
child and about substance abuse. Thomas stated Father initially resisted Goodwill
parenting classes because he perceived it as punishment, but Father told her he would
follow through with the classes. Thomas testified it would be unusual for a parent to
stop visiting their child for five months, it demonstrates issues with commitment and
attachment and is a source of serious concern in terms of Father being able to properly
bond with N.R.
{¶8} Jennifer Fire (“Fire”) is a parenting instructor and case manager at
Goodwill Industries and is Father’s parenting instructor. Fire testified as to Father’s
participation and progress in the program. Father first began the program on
September 17, 2012. Despite Fire’s explanation to Father that he must provide diapers,
supplies, and food during visits with N.R., Father continually did not come prepared with
food or supplies. Father made some improvements during the class and did well in the
classroom portion of the program, but had a hard time applying the skills to visits with
N.R. Fire stated Father did not have a good understanding of developmental stages,
Stark County, Case No. 2013CA00021 6
was short-fused when N.R. cried, and wanted N.R. to “sit still.” Fire testified Father’s
progress was hindered by his blaming and pointing fingers and some of Father’s
interactions with N.R. were troubling. For example, during one visit when N.R. cried,
Father stated he needed a break and that if SCDJFS had not taken N.R. away, Father
would have molded him to respect him the way he should by now.
{¶9} While a home visit is typically part of the program, Fire was unable to
complete a home visit because Father did not maintain independent housing. Fire
stated Father will receive a level of participation certificate and he completed 21 out of
24 goals with the program. Because Father often became angry and frustrated with
N.R., Fire stated the Goodwill staff will recommend that he participate in Intensive
Parent Child Interaction Classes. When Fire discussed the IPCI classes, Father told
her it would be more time-consuming then he wanted, but Fire stated it is possible
Father could complete the program in thirteen weeks. Fire does not recommend
unsupervised visitation between Father and N.R. and has concerns about Father’s
ability to provide and care for N.R. due to his financial and emotional instability and lack
of consistency.
{¶10} Lisa Minear from Quest Recovery conducted individual counseling with
Father for six weeks. She testified he was cooperative and was successfully
discharged. Minear last saw Father in January of 2012.
{¶11} Father testified he came to the United States from Kenya in 2005 to run
track and subsequently lost his scholarship due to injuries. Father stated he was
employed in the technology field for several years and had a bond with N.R. when he
was born. After Father and Mother ended their relationship, Father had to leave the
Stark County, Case No. 2013CA00021 7
home. Father was not present when N.R.’s hands were injured and did not know about
the incident until two weeks later. When he went to visit N.R. during these two weeks,
no one answered the door.
{¶12} Father stated he understood in November of 2011 that he was supposed
to visit N.R. weekly, go to Northeast Behavioral Health for a parenting assessment, and
go to Quest for counseling. When he received the report from Northeast Behavioral
Health in February of 2012, he knew he had to attend Goodwill parenting classes.
Father testified he did not start the classes until September or October of 2012 because
he thought attendance was just a “recommendation” and he had other “stuff I had to
do.” Father admits he went from April 20, 2012 to September of 2012 without visiting
N.R., which is more than ninety days. When asked why he did not visit, Father
explained that in July of 2012 he was mugged and was in the hospital for a week. He
did not visit the other portion of the five months because he was homeless and had no
transportation, often sleeping at bus stops and shelters. Father testified he had a house
for one month, but could not keep up with the rent and is therefore currently homeless
and living with a friend. Father is not currently employed. Father stated he cannot get a
job because his social security card was stolen when he was mugged and he needs this
information to update his immigration status. Father feels he should be able to renew
his immigration status within six months. Once he updates his immigration status,
Father believes he will be able to secure a job and housing.
{¶13} The guardian ad litem stated she had an opportunity to see N.R. and
Father interact during Goodwill parenting. While she characterized the visit as
Stark County, Case No. 2013CA00021 8
“positive,” her recommendation is that it is in N.R.’s best interest for the trial court to
grant SCDJFS’s motion for permanent custody.
{¶14} Pursuant to a judgment entry filed on January 10, 2013, the trial court
terminated Father’s parental rights and granted permanent custody of N.R. to SCDJFS.
The trial court found N.R. could not be placed with either parent at this time or within a
reasonable period of time and N.R. has been abandoned because Father failed to visit
or maintain contact with N.R. for more than ninety (90) days. The trial court further
found it is in the best interest of N.R. that permanent custody be granted to SCDJFS.
{¶15} Appellant now raises the following assignments of error on appeal:
{¶16} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION FOR A FIRST SIX MONTH EXTENSION.
{¶17} “II. THE TRIAL COURT’S FINDING THAT PERMANENT CUSTODY WAS
IN N.R.’S BEST INTEREST WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
Burden of Proof & Standard of Review
{¶18} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11. 1. It shall be sufficient compliance
with App. R. 12(A) for the statement of the reason for the court's decision
as to each error to be in brief and conclusionary form. The decision may
be by judgment entry in which case it will not be published in any form.”
Stark County, Case No. 2013CA00021 9
{¶19} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th
Dist. 1983).
{¶20} This appeal shall be considered in accordance with the aforementioned
rules.
{¶21} “[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).
{¶22} 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).
{¶23} 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
Stark County, Case No. 2013CA00021 10
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).
Best Interest
{¶24} Father argues the trial court erred in finding permanent custody was in
N.R.’s best interest. We disagree. 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).
{¶25} 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.
Stark County, Case No. 2013CA00021 11
{¶26} 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).
{¶27} In this case, Singleton testified N.R. has been in the same foster home
since October 2011 and is healthy after he went through treatment and therapy on his
hands. N.R. is bonded with his foster mother who nursed him back to health after the
injuries to his hands and he is traumatized when separated from her. N.R. has a
consistent routine every day, including attending preschool. While Singleton did
observe a bond between Father and N.R. when the case plan started, the bond has
been severed due to the lengthy separation from April 2012 to September 2012 when
Father did not visit N.R. Singleton stated it is her opinion the benefit of stability and
permanency outweighs any harm of N.R. not seeing Father and Father cannot provide
the same stability N.R. currently enjoys. Thus, she believes it is in N.R.’s best interest
for permanent custody to be granted to SCDJFS and she does not believe additional
time would correct the damage done by appellant failing to visit N.R. and failing to
address the concerns noted with his ability to parent. Further, the guardian ad litem,
even after observing a “positive” visit between N.R. and Father, made the
recommendation that it is in N.R.’s best interest for the trial court to grant SCDJFS’s
motion for permanent custody. Accordingly, we find that clear and convincing evidence
supports the trial court’s conclusion that it is in the best interest of N.R. to grant
permanent custody to SCDJFS.
Stark County, Case No. 2013CA00021 12
Motion for Six-Month Extension
{¶28} Father argues the trial court erred when it denied his motion for a first six-
month extension of temporary custody. We disagree. A trial court’s decision to grant or
deny an extension of temporary custody is a discretionary one. See R.C.
2151.415(D)(1) and (2). Pursuant to R.C. 2151.415(D)(1), a trial court can extend
temporary custody for six months only if it finds, by clear and convincing evidence, (1)
that such an extension is in the best interests of the child, (2) that there has been
significant progress on the case plan, and (3) that there is reasonable cause to believe
that the child will be reunified with a parent or otherwise permanently placed within the
period of extension. See In re McNab, 5th Dist. Nos. 2007 AP 11 0074, 2007 AP 11
0075, 2008-Ohio-1638.
{¶29} While Father has completed certain aspects of the case plan, Father has
continually waivered in his compliance with the case plan. Father initially completed the
parenting evaluation. However, despite being referred to Goodwill parenting in
February of 2012, he did not begin the program until September of 2012. Father stated
he did not begin Goodwill parenting until September because he thought attendance
was simply a recommendation and he had other “stuff I had to do.” Further, Father
failed to visit N.R. from April to September of 2012. Father testified he was mugged on
July 4, 2012, and was in the hospital for a week. However, when asked why he did not
visit from April to July or after he was released from the hospital in July to September,
Father stated he was homeless and had no transportation.
{¶30} Father has not had employment or independent housing since the case
was filed. Singleton attempted to assist Father with housing by referring him to Stark
Stark County, Case No. 2013CA00021 13
Social Worker’s Network, but Father was unable to fully utilize their services due to his
lack of communication with the agency. Singleton testified she does not believe Father
can provide care and support for N.R. because he does not have housing or
employment. Singleton doubts N.R. could be placed with Father within six months
because Father would still not be stable in six months in terms of maintaining a home,
maintaining employment, and meeting the basic needs of N.R. Father believes he can
renew his immigration status within six months and then gain employment and housing
within this time period because he is working with various entities to assist him with his
immigration status. However, at the time of the hearing, Father had not yet been
assigned an immigration attorney or obtained an application for a “green card of
permanent residence,” despite having the time period from when his social security card
was stolen in July to the hearing date in December to complete these tasks.
{¶31} Despite Father’s involvement with the Goodwill parenting program,
significant concerns remained with his ability to care for N.R. Fire testified Father
continually did not come prepared with food or supplies when visiting N.R. Further,
while Father did well in the classroom portion of the program, he was frustrated and
short-fused with N.R. Fire was not able to complete a home visit, a standard part of the
Goodwill parenting program, because Father did not maintain independent housing.
Fire stated despite Father’s completion of Goodwill parenting, she would not
recommend unsupervised visitation between N.R. and Father because of Father’s
frustration with N.R. and her doubts as to Father’s ability to care for N.R. Fire has
concerns with Father’s ability to provide for care and support of N.R. because of his lack
of stability and consistency. She was particularly concerned with a visit shortly before
Stark County, Case No. 2013CA00021 14
the hearing on the motion for permanent custody when Father became frustrated with
N.R. during a two-hour visit and had to walk away from N.R.
{¶32} We find appellant has failed to demonstrate an abuse of discretion by the
trial court in denying the motion for six-month extension. The testimony reflects that
because of Father’s decisions in belatedly starting the Goodwill parenting program, in
failing to visit N.R. from April 2012 to September 2012, and in failing to obtain
employment or housing, Father has failed to make significant progress in his case plan.
Further, based on the evidence presented, there is not clear and convincing evidence
that a reasonable likelihood of reunification exists in the next six months. Father is
homeless, unemployed, has only begun to address the concerns regarding his
parenting skills, and appears to be only in the beginning stages of renewing his
immigration status. As set forth more fully above, the evidence before the trial court
supports the conclusion that an extension of temporary custody is not in N.R.’s best
interest, but, rather, his interests are best served by an award of permanent custody to
SCDJFS.
{¶33} Based on the foregoing, we find that the trial court did not err in awarding
permanent custody of N.R. to SCDJFS or by denying Father’s motion for six-month
extension.
{¶34} Appellant’s Assignments of Error I and II are therefore overruled.
Stark County, Case No. 2013CA00021 15
{¶35} For the foregoing reasons, the judgment of the Stark County Court of
Common Pleas, Juvenile Division, is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0515
[Cite as In re N.R., 2013-Ohio-2327.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF N.R. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2013CA00021
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas, Juvenile Division, is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN