In re B. S. ( 2014 )

[Cite as In re B. S., 2014-Ohio-4366.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
:
B.S. : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 14-CA-16
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Juvenile
Division, Case No. 2012AB13
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 29, 2014
APPEARANCES:
For Appellee, Cheryl Hood For Appellant, Carl Six
CHRISTINA A. MCGILL LISA A. LONG
Law Office of Christina A. McGill, Esq. LLC 414 E. Main Street, Suite 200
123 S. Broad Street, Suite 240 Lancaster, OH 43130
Lancaster, OH 43130
For Guardian Ad Litem For Amber Clark
Bano Itayim JENNIFER J. HITT
250 E. Broad Street, Suite 250 Jennifer J. Hitt, Attorney at Law, LLC
Columbus, OH 43215 63 N. Main Street, Suite B
London, OH 43140
For Fairfield County Child Protective Services
JULIE BLAISDELL
Fairfield County Prosecutor’s Office
239 W. Main Street, Suite 101
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-16 2
Baldwin, J.
{¶1} Appellant Carl Six appeals from the January 31, 2014 Entry of the Fairfield
County Court of Common Pleas, Juvenile Division granting legal custody of B.S. to
Cheryl Hood.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 19, 2012, a complaint was filed alleging that B.S. (DOB
1/17/12) was a dependent child. Amber Clark, B.S.’s mother, had alleged that B.S.’s
father was Bradley Smith. On the same date, a shelter care hearing was held and
temporary custody of B.S. was granted to Fairfield County Child Protective Services
(FCCPS).
{¶3} A trial on the complaint for dependency was held on March 29, 2012 and
B.S. was found to be a dependent child. Temporary custody of the child was granted to
FCCPS. The trial court also ordered that the case be transferred to Morgan County
since Clark resided there and had been residing there for more than one year.
{¶4} As memorialized in a Journal Entry filed on September 10, 2012, Morgan
County declined to accept jurisdiction and the case was returned to Fairfield County
Juvenile Court. A review hearing was held on October 2, 2012. At the hearing, the court
found that Bradley Smith was not the child’s father and ordered that genetic testing be
conducted to determine whether or not appellant, who was present at the hearing, was
the child’s father.
{¶5} Thereafter, on October 15, 2012, FCCPS filed a motion seeking
permanent custody of B.S. FCCPS, in its motion, noted that paternity of B.S. had not yet
been established. On the same date. FCCPS filed a motion requesting that the court
Fairfield County, Case No. 14-CA-16 3
terminate the temporary custody of B.S. with the agency and place him in the legal
custody of Cheryl Hood, the maternal great-aunt.
{¶6} On October 26, 2012, the results of the genetic testing were filed with the
trial court. The results showed that appellant was the child’s biological father.
Thereafter, on December 11, 2012, appellant filed a motion seeking custody of B.S.
Appellant, on May 30, 2013, filed a Motion for Placement. A hearing on the pending
motions was, via an notice filed on June 4, 2013, scheduled for June 11, 2013.
{¶7} Appellee Cheryl Hood, on June 6, 2013, filed a Motion for Legal Custody.
Hood, in her motion, noted that B.S. had been living with her since he was released
from the hospital after his birth and that his two siblings also resided with her.
{¶8} At the trial that commenced on June 11, 2013, the trial court permitted
FCCPS to withdraw its Motion for Permanent Custody and its Motion for Legal Custody
to go to Cheryl Hood. On June 11, 2013, appellant’s counsel indicated that appellant
had not been served with Cheryl Hood’s motion and would not waive service. Appellant
asked the trial court to proceed on his Motion for Custody or, if it wished to continue the
custody motion, then to proceed on his Motion for Placement. The trial court stated that
it would not proceed on appellant’s Motion for Custody alone and stated that “we can
proceed on both motions or I guess we can continue this matter, and the child will
remain with Ms. Hood.” Transcript from June 11, 2013 at 15. After the trial court denied
appellant’s Motion for Placement without hearing, appellant agreed to proceed with both
Motions for Custody.
{¶9} The trial with regards to the Motions for Legal Custody was held over a
total of six days (June 11, 2013, July 30, 2013, August 23, 2013, September 27, 2013,
Fairfield County, Case No. 14-CA-16 4
October 4, 2013 and November 20, 2013). Pursuant to an Entry filed on January 31,
2014, the trial court ordered that temporary custody of B.S. with FCCPS be terminated
and that B.S, be placed in the legal custody of Cheryl Hood. The trial court granted
appellant visitation. Findings of Fact and Conclusions of Law were attached to the trial
court’s Entry.
{¶10} Appellant now raises the following assignments of error on appeal:
{¶11} THE TRIAL COURT ABUSED ITS DISCRETION AND CAUSED
PREJUDICIAL ERROR WHEN IT DENIED APPELLANT DUE PROCESS BY
DENYING APPELLANT’S MOTION FOR PLACEMENT.
{¶12} THE TRIAL COURT ABUSED ITS DISCRETION BY THE ADMISSION
OF EVIDENCE OUTSIDE THE REQUIREMENTS OF THE RULES OF EVIDENCE.
{¶13} THE TRIAL COURT ERRED IN GRANTING LEGAL CUSTODY TO A
THIRD-PARTY NON-PARENT WITHOUT A DETERMINATION OF SUITABILITY.
{¶14} THE TRIAL COURT’S FINDINGS OF FACT ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
I
{¶15} Appellant, in his first assignment of error, argues that the trial court
abused its discretion when it denied appellant’s Motion for Placement without a hearing.
{¶16} An abuse of discretion implies that the court's attitude was unreasonable,
arbitrary or unconscionable, not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
{¶17} R.C. 2151.412(F)(2)(b) provides:
Fairfield County, Case No. 14-CA-16 5
(F)(2) Any party may propose a change to a substantive part
of the case plan, including, but not limited to, the child's placement
and the visitation rights of any party. A party proposing a change to
the case plan shall file the proposed change with the court and give
notice of the proposed change in writing before the end of the day
after the day of filing it to all parties and the child's guardian ad
litem. All parties and the guardian ad litem shall have seven days
from the date the notice is sent to object to and request a hearing
on the proposed change.
(b) If it does not receive a timely request for a hearing, the
court may approve the proposed change without a hearing. If the
court approves the proposed change without a hearing, it shall
journalize the case plan with the change not later than fourteen
days after the change is filed with the court. If the court does not
approve the proposed change to the case plan, it shall schedule a
hearing to be held pursuant to section 2151.417 of the Revised
Code no later than thirty days after the expiration of the fourteen-
day time period and give notice of the date, time, and location of
the hearing to all parties and the guardian ad litem of the child. If,
despite the requirements of division (F)(2) of this section, the court
neither approves and journalizes the proposed change nor
conducts a hearing, the agency may implement the proposed
change not earlier than fifteen days after it is submitted to the court.
Fairfield County, Case No. 14-CA-16 6
{¶18} Appellant did not file a proposed change to the case plan and make a
request for specific amendment. Nor did appellant request a hearing in his motion.
Moreover, appellant’s motion was filed on May 30, 2013, just twelve days before the
commencement of the trial in this matter on the motions for legal custody that were
pending.
{¶19} Additionally, at the conclusion of the first day of trial, the trial court
indicated that did not want B.S. to be placed on visit status with appellant until it decided
the pending motions. The trial court, however, did agree that visitation between
appellant and B.S. could be increased. Subsequently, on July 30, 2013, the trial court
stated that because it had not heard all of the evidence and testimony, it was not in the
best position to determine what placement was in B.S.’s best interest
{¶20} Based on the foregoing, we find that the trial court did not abuse its
discretion in denying appellant’s Motion for Placement.
{¶21} Appellant’s first assignment of error is, therefore, overruled.
II
{¶22} Appellant, in his second assignment of error, argues that the trial court
abused its discretion by admitting evidence of acts and/or convictions that occurred
more than ten years before under Evid.R. 404 and 609.
{¶23} An abuse of discretion implies that the court's attitude was unreasonable,
arbitrary or unconscionable, not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
{¶24} Evid. R. 404 states, in relevant part, as follows: “(A) Character evidence
generally. Evidence of a person's character or a trait of character is not admissible for
Fairfield County, Case No. 14-CA-16 7
the purpose of proving action in conformity therewith on a particular occasion, subject to
the following exceptions:
(1) Character of accused. Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the
same is admissible; however, in prosecutions for rape, gross sexual
imposition, and prostitution, the exceptions provided by statute
enacted by the General Assembly are applicable.
(2) Character of victim. Evidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in a homicide
case to rebut evidence that the victim was the first aggressor is
admissible; however, in prosecutions for rape, gross sexual
imposition, and prostitution, the exceptions provided by statute
enacted by the General Assembly are applicable.
(3) Character of witness. Evidence of the character of a
witness on the issue of credibility is admissible as provided in Rules
607, 608, and 609.”
{¶25} In turn, Evid. R. 609 states, in relevant part, as follows:
(A) General rule
For the purpose of attacking the credibility of a witness:
(1) subject to Evid.R. 403, evidence that a witness other than
the accused has been convicted of a crime is admissible if the
Fairfield County, Case No. 14-CA-16 8
crime was punishable by death or imprisonment in excess of one
year pursuant to the law under which the witness was convicted.
(2) notwithstanding Evid.R. 403(A), but subject to Evid.R.
403(B), evidence that the accused has been convicted of a crime is
admissible if the crime was punishable by death or imprisonment in
excess of one year pursuant to the law under which the accused
was convicted and if the court determines that the probative value
of the evidence outweighs the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.
(3) notwithstanding Evid.R. 403(A), but subject to Evid.R.
403(B), evidence that any witness, including an accused, has been
convicted of a crime is admissible if the crime involved dishonesty
or false statement, regardless of the punishment and whether
based upon state or federal statute or local ordinance.
(B) Time limit
Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement, or
the termination of community control sanctions, post-release
control, or probation, shock probation, parole, or shock parole
imposed for that conviction, whichever is the later date, unless the
court determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances
Fairfield County, Case No. 14-CA-16 9
substantially outweighs its prejudicial effect. However, evidence of
a conviction more than ten years old as calculated herein, is not
admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the use
of such evidence.
{¶26} Appellant specifically takes issue with the trial court’s admission of
testimony, over objection, regarding an incident that occurred 12 years earlier involving
Clarice Starcher, who was appellant’s fiancé and lived with him, burning a bed.
Appellant also argues that the trial court erred in allowing Kinship Exhibits 5-11, and
testimony corresponding to such exhibits, over objection. Exhibit 5 is a January 31,
2005 Journal Entry from Morgan County Court showing that appellant pleaded no
contest to domestic violence, a misdemeanor of the fourth degree. Exhibit 6 is a
September 28, 1998 Journal Entry from Morgan County Court stating that appellant
pleaded guilty to a second OMVI while Exhibit 7 is a July 25, 2005 Journal Entry from
the same court stating that appellant pleaded guilty to OMVI.
{¶27} Exhibit 8 is a minor misdemeanor citation issued to appellant in April of
2006 for disorderly conduct while Exhibit 9 is a Journal Entry from Morgan County Court
indicating that, in 2006, appellant pleaded guilty to trespass and resisting arrest. Finally,
Exhibit 10 is a February 5, 2007 Journal Entry from Morgan County Court stating that
appellant pleaded no contest to having no operator’s license while Exhibit 11 is a
September 7, 2010 Journal Entry from Morgan County Court stating that a criminal
complaint against appellant was dismissed on the State’s motion.
Fairfield County, Case No. 14-CA-16 10
{¶28} We concur with appellee that the trial court did not abuse its discretion in
allowing the admission of such evidence. The evidence was not offered as character
evidence or to show action in conformity therewith or for impeachment purposes.
Rather, such testimony was offered for a factual history of the domestic violence issues
between appellant and Starcher. The exhibits presented with respect to appellant’s
criminal history were relevant to appellant’s fitness and were relevant as to the request
by FCCPS that appellant address substance abuse and domestic violence concerns in
his case plan. See In the Matter of Epperly-Wilson Children, 5th Dist. Stark No.
2001CA00098, 2001 WL 902450 (Aug. 6, 2001).
{¶29} Appellant’s second assignment of error is, therefore, overruled.
III
{¶30} Appellant, in his third assignment of error, argues that the trial court erred
in granting legal custody to Cheryl Hood, who was not B.S.’s parent, without a
determination that appellant was unsuitable. We disagree.
{¶31} In the case sub judice, B.S. was adjudicated a dependent child on March
29, 2012.
Before awarding legal custody to a non-parent, a trial court
must ordinarily make a finding that each parent is unsuitable. In re
L.M., 2nd Dist. Greene No.2010–CA–76, 2011–Ohio–3285, ¶ 18
citing In re Hockstock, 98 Ohio St. 3d 238, 2002–Ohio–7208, 781
N.E.2d 971. This requirement does not apply, however, in cases
involving abuse, neglect, or dependency. Id. The Ohio Supreme
Court in In re C.R. held ‘[a] juvenile court adjudication of abuse,
Fairfield County, Case No. 14-CA-16 11
neglect, or dependency is a determination about the care and
condition of a child and implicitly involves a determination of the
unsuitability of the child's custodial and/or noncustodial parents.’
108 Ohio St. 3d 369, 2006–Ohio–1191, 843 N.E.2d 1188,
paragraph one of syllabus. Thus, ‘[w]hen a juvenile court
adjudicates a child to be abused, neglected, or dependent, it has
no duty to make a separate finding at the dispositional hearing that
a noncustodial parent is unsuitable before awarding legal custody
to a nonparent.’ In re L.M., 2011–Ohio–3285 quoting In re C.R.,
108 Ohio St. 3d 369, paragraph two of syllabus.” In re L.H., 5th
Dist. Muskingum No. CT 2013- 0017, 2013-Ohio-5279 at
paragraph 25.
{¶32} As the Ohio Supreme Court has recognized, “no statute requires a
finding of parental unfitness as a prerequisite to an award of legal custody in
cases where a child is adjudged abused, neglected, or dependent.” In re C.R., ¶
21.
{¶33} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶34} Appellant, in his fourth assignment of error, argues that many of the trial
court’s findings of fact are against the manifest weight of the evidence.
{¶35} In Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, 972 N.E.2d
517, the Ohio Supreme Court clarified the standard of review appellate courts should
apply when assessing the manifest weight of the evidence in a civil case. SST Bearing
Fairfield County, Case No. 14-CA-16 12
Corp. v. Twin City Fan Companies, Ltd., 1st Dist. Hamilton No. C110611, 2012–Ohio–
2490, ¶ 16. The Ohio Supreme Court held the standard of review for manifest weight of
the evidence for criminal cases stated in State v. Thompkins, 78 Ohio St. 3d 380, 678
N.E.2d 541 (1997), is also applicable in civil cases. Eastley, at ¶ 17–19, 972 N.E.2d
517. A reviewing court is to examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine “whether in
resolving conflicts in the evidence, the finder of fact clearly lost its way and created such
a manifest miscarriage of justice that the judgment must be reversed and a new trial
ordered.” Eastley, at ¶ 20 quoting Twearson v. Simon, 141 Ohio App. 3d 103, 115, 750
N.E.2d 176 (9th Dist.2001); See also Sheet Metal Workers Local Union No. 33 v.
Sutton, 5th Dist Stark No.2011 CA00262, 2012–Ohio–3549 citing State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “In a civil case, in which the
burden of persuasion is only by a preponderance of the evidence, rather than beyond a
reasonable doubt, evidence must still exist on each element (sufficiency) and the
evidence on each element must satisfy the burden of persuasion (weight).” Eastley, at ¶
19.
{¶36} “In weighing the evidence, the court appeals must always be mindful of
the presumption in favor of the finder of fact. In determining whether the judgment below
is manifestly against the weight of the evidence, every reasonable intendment and
every reasonable presumption must be made in favor of the judgment and the findings
of fact. * * * If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.” Easterly, at ¶ 21,
Fairfield County, Case No. 14-CA-16 13
citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273
(1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–
192 (1978).
{¶37} The trial court, in its Entry, made 82 findings of fact. Appellant argues that
26 of the findings are against the manifest weight of the evidence. Appellant specifically
takes issue with findings of fact numbers 16, 17, 18, 20, 22, 23, 24, 25, 26, 27, 35, 38,
39, 40, 48, 51, 58, 59, 65, 66, 69, 70, 74, 76, 81 and 82.
{¶38} The trial court, in finding of fact # 16, stated that appellant believed that he
was the father of B.S. at his birth. Appellant argues that this is untrue and that he was
unsure of B.S.’s paternity until after learning that Bradley Smith was not the father.
However, at the trial, appellant testified that he “wanted to find out from day one” if he
was B.S,’s father but did not go to the hospital because B.S.’s mother told him not to.
Transcript at 548. He testified that he was unsure if B.S. was his child ornot and “was
just kind of waiting.” Id. In addition, appellee testified that she believed that appellant
knew he was the father of B.S. at the hospital at birth.
{¶39} Appellant also challenges the court’s finding of fact #17 that appellant did
not contact FCCPS caseworker Brandon Henestofel until June of 2012, six months after
B.S.’s birth, to attempt to assert his rights as father. We note that appellant testified that
he was waiting for B.S.’s mother to give him the caseworker’s number and that she
gave him the number a couple of months later. He testified that he then lost the number.
{¶40} The next finding that appellant challenges is finding #18. The trial court, in
such finding, found that appellant was determined to be the father of B.S. in October of
2012. Appellant agrees that genetic test results were filed with the trial court in October
Fairfield County, Case No. 14-CA-16 14
of 2012, even though the trial court did not make an order establishing paternity until
February 5, 2013. Clearly, genetic testing had determined appellant to be the father in
October of 2012.
{¶41} Appellant next argues that the trial court’s findings, in paragraph #20 and
#24, that his actions indicate that he never took his alcohol problem seriously and that
he had not admitted that he was an alcoholic were against the manifest weight of the
evidence. Appellant argues that he complied with his case plan requests for alcohol and
drug screenings and assessments, that he volunteered to have a SCRAM monitor put
on, and that he attended AA meetings and was compliant with his sponsor. However,
when asked whether he admitted that he was an alcoholic, appellant stated that he had
been one, but no longer was. He was unable to state with any certainty how long he had
been sober, although he believed it had been over a year. Appellant also indicated that
he did not look at his AA step book very often, but was just doing what his AA sponsor
and FCCPS were telling him to do. Finally, Brandon Henestofel, the caseworker,
testified on the last day of trial, which was on November 20, 2013, that appellant had
not been to AOD (alcohol/drug) meeting or counseling for almost two months. Based on
the foregoing, we cannot say that the trial court’s findings were against the manifest
weight of the evidence.
{¶42} The next finding that appellant takes issue with is finding #22 in which the
trial court found that appellant had one incident of tampering with his SCRAM bracelet
during the pendency of this case. Henestofel testified that there was an obstruction from
noon to 8:44 p.m. with appellant’s SCRAM monitor. However, he also testified that the
obstruction was reported to be slight and that the monitoring agency indicated that if
Fairfield County, Case No. 14-CA-16 15
there had been any alcohol consumption, it would have been picked up. While the
finding may have been inaccurate, we find that it is not substantial enough to prejudice
appellant.
{¶43} Appellant also challenges the trial court’s finding #23 that none of the drug
tests that appellant submitted to at the request of FCCPS were random. At trial.
Brandon Henestofel testified that appellant never provided random drug screens to him.
{¶44} In finding number #25, the trial court stated that appellant had not been
fully compliant with his case plan. Henestofel, on June 30, 2013, testified that it would
be accurate to say that appellant had not been fully compliant with his case plan goals.
He indicated that appellant was not compliant with the recommendation that he attend
individual counseling every week due to financial constraints. He also testified on the
last day of trial that he was concerned that appellant was not engaged in his AOD
(alcohol/drug) services at Morgan Behavioral Choices and would have liked for
appellant to have done so to have acquired more “coping skills”. Transcript at 1010.
{¶45} With respect to appellant’s challenge to the trial court’s finding, in
paragraph #26, that appellant did not address many of the concerns on his case plan
until the trial started, we note that there was testimony that appellant, who had alcohol
problems in the past and was required to address issues of substance abuse, had not
attended an AOD meeting or counseling for almost two months, did not acknowledge
that he was an alcoholic and was not engaged in AOD services at Morgan Behavioral
Choices.
{¶46} In finding #27, the trial court found that appellant had missed, cancelled
and failed to regularly attend his family and couples counseling for domestic violence
Fairfield County, Case No. 14-CA-16 16
concerns. Henestofel testified on November 20, 2012 that appellant had made one
counseling session in a four month period during the last four months.
{¶47} Appellant also takes issue with the trial court’s finding, in paragraph #35,
that he had provided B.S. with only one pair of shoes that were the wrong size for the
care of B.S. outside appellant’s home. Appellee testified that appellant had only
provided her with one pair of shoes during the entire time that she had B.S., which was
since shortly after his birth. Appellant also testified that he purchased a pair of shoes
for B.S. that were not the size that appellee was putting on B.S.
{¶48} The trial court, in finding #38, found that appellant reported working only
one day a month for his employer, citing his obligations with FCCPS as a barrier to
working more. Appellant himself testified that he “lucky to make it a day a month” to his
“actual job” due to running to classes. Transcript at 538.
{¶49} The trial court, in finding #39, found that appellant had failed to visit with
B.S. until January 8, 2013 and, in finding #40, found that appellant had taken B.S. to AA
meetings and drug testing due to not having reliable child care. Both parties agree that
finding #39 is incorrect and that the initial visitation took place in November of 2012.
However, we concur with appellee that such error is not substantial. We note that
appellant admitted that he took B.S. to AA meetings. He later testified that he could not
leave B.S. with Clarice Starcher, his fiancée.
{¶50} The next two findings of fact that appellant challenges concern Clarice
Starcher. The trial court, in finding #48, found that Starcher had not addressed her
alcohol issues with treatment and indicated that she just would not use alcohol and
would be fine and, in finding #51, found that Starcher had not worn a SCRAM bracelet.
Fairfield County, Case No. 14-CA-16 17
There is no indication that Starcher was asked to wear a SCRAM bracelet. At trial,
Starcher testified that she was not receiving any type of alcohol or drug treatment,
although she admitted a past problem with alcohol. She also stated that she was not
going to AA classes or receiving any counseling and had not been through any type of
treatment.
{¶51} Appellant next argues that the trial court’s finding, in paragraph #58, that
he refuses to use day care is against the manifest weight of the evidence. Appellant
testified that he was unwilling to use daycare if he was working full-time. He testified
that Clarice Starcher would be taking care of B.S. so that appellant could go back to
work.
{¶52} Appellant also contends that the trial court’s finding, in #59, that he and
Clarice Starcher had had instances of domestic violence between them in the past is
against the manifest weight of the evidence. Appellant, in his brief, concedes that there
was a domestic violence situation eight years prior during which items in the home were
broken. In addition, he admitted on cross-examination that Starcher had lit a bed on fire
approximately twelve years previously.
{¶53} The next five findings of fact (#65, 66, 69, 70 and 74) that appellant
challenges relate to Cheryl Hood. Appellant challenges the trial court’s finding that Hood
was able to maintain her home and an appropriate lifestyle for B.S. and his two half-
siblings with the money that she received from Social Security. He also challenges the
court’s findings that Hood’s anxiety, for which she received disability, was not so severe
as to impede her ability to care for B.S. and that FCCPS had no mental health concerns
with her. Appellant also argues that the findings that Hood had appropriately reported
Fairfield County, Case No. 14-CA-16 18
any concerns she had with the children in her home to FCCPS and followed up as
recommended and that Hood had not allowed B.S. to be taken by Amber Clark at any
time and indicated to the court that any testimony stating otherwise was a lie were
against the manifest weight of the evidence.
{¶54} At the trial, Brandon Henestofel testified that he believed that Hood was
adequately providing care and support and for the medical needs for the children in her
home and that, after sexual acting out occurred between children in her home, she
appropriately addressed all of the issues. He testified that she had contacted his agency
and asked for assistance when it was needed and acted appropriately. Appellee
testified that she received social security for her anxiety, but that it did not impede her
ability to take care of the children. She testified that the anxiety arose after she was the
victim of domestic violence and that she was able to function through her disability.
With respect to his argument that the finding that FCCPS has no mental health
concerns with Hood is against the manifest weight of the evidence, appellant merely
cites to the tone of the questioning by counsel for FCCPS. Finally, Hood testified that
she had not allowed B.S. alone with his mother and that testimony to the contrary was a
lie. The trial court, as trier of fact, was in the best position to assess her credibility.
{¶55} The trial court, in finding #76, found that there had been concerns since
B.S.’s birth with regards to fetal alcohol syndrome. While appellant challenges this
finding because there were no medical professionals who testified, we note that
appellee indicated that she had such concerns and that B.S. had a lot of developmental
delays. The case worker, Brandon Henestofel, testified that while no diagnosis had
been made, the agency was continuing to monitor B.S.
Fairfield County, Case No. 14-CA-16 19
{¶56} The final findings that appellant challenges are the trial court’s findings, in
#81 and #82, that the Guardian ad Litem was unable to formulate a specific
recommendation as to which party should receive legal custody of B.S. and had
concerns that appellant was not actively participating in his counseling and alcohol
treatment and had returned B.S. to Hood with a significant allergic reaction without
seeking medical treatment. Appellant also contests the finding that the Guardian was
concerned that appellant did not take seriously the concerns of B.S. rolling his eyes into
his head and possible seizures.
{¶57} At the final day of trial, the Guardian ad Litem testified that she had
concerns that appellant would not continue with counseling after the case closed and
that both appellant and Clarice Starcher had indicated that they did not know why they
were in counseling. She also testified that appellant’s poor attendance at his AOD
(alcohol/drug) treatment concerned her. At the trial, the Guardian ad Litem stated that
she was concerned that, during a meeting, appellant admitted that he had observed eye
rolling and moving during a visitation with B.S., but had not reported the same.
{¶58} The Guardian ad Litem indicated that she belived taking B.S. away from
appellee would be detrimental to him.
{¶59} Based on the foregoing, we find that, with limited exceptions that are not
prejudicial to appellant, the trial court’s findings of fact are not against the manifest
weight of the evidence. While there may have been differing testimony on some issues,
the trial court, as trier of fact, was in the best position to assess credibility.
{¶60} Appellant’s fourth assignment of error is, therefore, overruled.
Fairfield County, Case No. 14-CA-16 20
{¶61} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Juvenile Division is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.