In re A.M. , 2013 Ohio 4152 ( 2013 )

[Cite as In re A.M., 2013-Ohio-4152.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
A. M.
Case No. 2013 CA 00113
MINOR CHILD OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2012
JCV 00652
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 23, 2013
APPEARANCES:
For Appellee For Appellant
JERRY COLEMAN MARY G. WARLOP
STARK COUNTY DJFS 118 Cleveland Avenue, NW
221 Third Street, SE Suite 500
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case No. 2013 CA 00113 2
Wise, P. J.
{¶1} Appellant Travis Mayle appeals the decision of the Stark County Court of
Common Pleas, Juvenile Division, which granted permanent custody of his son, A.M., to
Appellee Stark County Department of Job and Family Services (“SCDJFS”). The
relevant facts leading to this appeal are as follows.
{¶2} A.M., born in June 2012, is the son of Terry Tallman (mother) and
Appellant Travis Mayle.1 In July 2012, SCDJFS filed a complaint alleging neglect and
dependency, based on concerns that Tallman had tested positive for marijuana at the
time of A.M.’s birth and was living in a hotel. A.M. has multiple physical challenges,
including Down’s syndrome and cardiovascular issues. Tallman has several other
children in relative custody, chiefly in the State of West Virginia. There is also a
permanent custody record regarding some of her children in that state.
{¶3} The trial court granted emergency custody to the agency on or about July
5, 2012. The trial court further issued orders on September 18, 2012 adjudicating A.M.
as a dependent child and maintaining temporary custody with SCDJFS.
{¶4} On April 3, 2013, SCDJFS filed a motion for permanent custody. Appellant
and Tallman were served with the motion via publication. An evidentiary hearing was
conducted on May 15, 2013. Appellant and Tallman were not present for said hearing,
although counsel appeared for each parent. Counsel for the guardian ad litem and
counsel for the agency also appeared.
{¶5} On the next day, the trial court issued a judgment entry, with findings of
fact and conclusions of law, granting permanent custody of A.M. to SCDJFS.
1
Tallman has not appealed the permanent custody ruling at issue.
Stark County, Case No. 2013 CA 00113 3
{¶6} On June 3, 2013, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
{¶7} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY
TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES
(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE
THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶8} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY
SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING
EVIDENCE THAT IS IN THE BEST INTERESTS OF THE MINOR CHILD TO GRANT
PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
I.
{¶9} In his First Assignment of Error, appellant-father challenges the trial
court's grant of permanent custody of A.M. to SCDJFS.
{¶10} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App.No. CA–5758.
Accordingly, judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d
Stark County, Case No. 2013 CA 00113 4
279, 376 N.E.2d 578. Furthermore, it is well-established that the trial court is in the best
position to determine the credibility of witnesses. See, e.g., In re Brown, Summit
App.No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St.2d
230, 227 N.E.2d 212.
{¶11} R.C. 2151.414(B)(1) reads as follows: “Except as provided in division
(B)(2) of this section, the court may grant permanent custody of a child to a movant if
the court determines at the hearing held pursuant to division (A) of this section, by clear
and convincing evidence, that it is in the best interest of the child to grant permanent
custody of the child to the agency that filed the motion for permanent custody and that
any of the following apply:
{¶12} “(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month period,
* * * 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.
{¶13} “(b) The child is abandoned.
{¶14} “(c) The child is orphaned, and there are no relatives of the child who are
able to take permanent custody.
{¶15} “(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or more months
of a consecutive twenty-two month period * * *.”
{¶16} In determining whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents (see R.C.
Stark County, Case No. 2013 CA 00113 5
2151.414(B)(1)(a), supra), a trial court is to consider the existence of one or more
factors under R.C. 2151.414(E).
{¶17} In the case sub judice, the trial court relied on both R.C. 2151.414(B)(1)(a)
and R.C. 2151.414(B)(1)(b) in its determination. A trial court's finding of abandonment
under R.C. 2151.414(B)(1)(b) will satisfy the first prong of the permanent custody test,
allowing the court to move on to the second prong of considering whether the grant of
permanent custody to the agency is in the best interest of the child. See In re Cravens,
3rd Dist. Defiance No. 4–03–48, 2004-Ohio-2356, ¶ 25.
{¶18} R.C. 2151.011(C) sets forth the following “presumptive abandonment”
rule: “For the purposes of this chapter, a child shall be presumed abandoned when the
parents of the child have failed to visit or maintain contact with the child for more than
ninety days, regardless of whether the parents resume contact with the child after that
period of ninety days.” We have held that there must be a showing that a parent has
failed to visit or maintain contact with the child for a period of ninety days before an
agency moves for permanent custody on “presumed abandonment” grounds. See In re
Scullion, Stark App. No. 2006CA00308, 2007–Ohio–929, ¶ 30.
{¶19} In the case sub judice, it can be aptly summarized that while appellant and
Tallman had some participation in their case plans, no evidence was presented on their
behalf to refute caseworker Wanda Pounds’ testimony that both parents had “just
disappeared” in December 2012, more than ninety days prior to the filing of the
permanent custody motion. See Tr. at 12. Pounds nonetheless tried visiting appellant
at his last known address, calling the phone numbers she had for him, and contacting
some of his relatives, all to no avail. See Tr. at 6-17.
Stark County, Case No. 2013 CA 00113 6
{¶20} Accordingly, although the trial court in the case sub judice commendably
made the additional effort to render a decision under R.C. 2151.414(B)(1)(a) as well, we
find no reversible error in the court’s finding of abandonment under R.C.
2151.414(B)(1)(b), and the court’s decision in regard to grounds for permanent custody
was not against the manifest weight of the evidence.
{¶21} Appellant's First Assignment of Error is overruled.
II.
{¶22} In his Second Assignment of Error, appellant-father challenges the trial
court's decision that it would be in the best interest of A.M. to grant permanent custody
to the agency.
{¶23} In determining the best interest of a child for purposes of permanent
custody disposition, the trial court is required to consider the factors contained in R.C.
2151.414(D). These factors are as follows:
{¶24} “(1) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster care givers and out-of-home providers, and any other
person who may significantly affect the child;
{¶25} “(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;
{¶26} “(3) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two month
period * * *;
Stark County, Case No. 2013 CA 00113 7
{¶27} “(4) The child's need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of permanent custody
to the agency;
{¶28} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶29} It is well-established that “[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 (Nov. 13, 2000), Stark App.No. 2000CA00244, quoting In re Awkal
(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.
{¶30} At the evidentiary hearing in the case sub judice, evidence was adduced
that appellant completed a substance abuse assessment at Quest Services as part of
his case plan, and that his urine screens were all negative for drugs. Appellant directs
us to the caseworker’s testimony that there was some bonding between appellant and
the child, and that with the development of parenting skills and maintaining sobriety,
appellant would have been an appropriate parent. See Tr. at 14. However, the record
also indicates that A.M. is placed in a therapeutic foster home where his medical needs
and treatments are being met. He is “very comfortable” there. Tr. at 25. The foster
family is bonded with him. They are willing to maintain the placement long-term and are
interested in adoption. Tr. at 24, 28. A report of the guardian ad litem was provided to
the court, the details of which are not herein disputed. In this instance, whatever
potential either parent may have in being able to provide a secure permanent home for
Stark County, Case No. 2013 CA 00113 8
this child must be cautiously weighed against appellant’s and Tallman’s
incomprehensible decisions to simply walk away from the child and their case plans at a
critical time and fail to even appear at the permanent custody hearing.
{¶31} Upon review of the record and the findings and conclusions therein, we
conclude the trial court's judgment granting permanent custody of A.M. to the agency
was made in the consideration of the child's best interest and did not constitute an error
or an abuse of discretion under the circumstances presented.
{¶32} Appellant's Second Assignment of Error is overruled.
{¶33} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN
JWW/d 0830
Stark County, Case No. 2013 CA 00113 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
:
A. M. : JUDGMENT ENTRY
:
:
MINOR CHILD : Case No. 2013 CA 00113
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is
affirmed.
Costs assessed to appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. PATRICIA A. DELANEY
___________________________________
HON. CRAIG R. BALDWIN