In re D.K. , 2022 Ohio 1429 ( 2022 )

[Cite as In re D.K., 2022-Ohio-1429.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: D.K. : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2021CA0026
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 21930086
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 29, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
FREDERICK A. SEALOVER SARA R. CHISNELL
P.O. Box 2910 725 Pine Street
Zanesville, OH 43702-2910 Coshocton, OH 43812
Coshocton County, Case No. 2021CA0026 2
Wise, Earle, P.J.
{¶ 1} Appellant-father, C.K., appeals the November 5, 2021 judgment entry of the
Court of Common Pleas of Coshocton County, Ohio, Juvenile Division, terminating his
parental rights and granting permanent custody of his child to appellee, Coshocton
County Job and Family Services.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 17, 2019, appellee filed a complaint alleging a child to be
dependent and neglected: D.K. born in March 2013. Father is C.K., appellant herein;
mother is J.S. It was alleged that father was incarcerated and mother had substance
abuse issues. Appellee sought temporary custody of the child to the child's maternal
grandmother, D.S., with protective supervision to the agency.
{¶ 3} On October 29, 2019, appellee requested emergency temporary custody of
the child. By judgment entry filed same date, the trial court granted the request. A shelter
care hearing was held the next day. By judgment entry filed November 4, 2019, the trial
court ordered that the child shall remain in appellee's emergency temporary custody due
to maternal grandmother's failure to comply with the safety plan in place.
{¶ 4} Adjudicatory and dispositional hearings were held on January 8, 2020,
wherein the parents admitted to dependency. By judgment entry filed July 22, 2020, the
trial court continued appellee's temporary custody of the child.
{¶ 5} On April 21, 2021, appellee filed a motion for permanent custody of the
child. Hearings were held on June 24, and 25, and October 29, 2021. By judgment entry
filed November 5, 2021, the trial court terminated the parents' parental rights and granted
appellee permanent custody of the child.
Coshocton County, Case No. 2021CA0026 3
{¶ 6} Appellant-father filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ERRED BY FINDING THAT THE BEST INTEREST
OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT
CUSTODY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED."
I
{¶ 8} In his sole assignment of error, appellant claims the trial court erred in
finding the best interest of the child would be best served by granting permanent custody
of the child to appellee against the manifest weight of the evidence. We disagree.
{¶ 9} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: 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 jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the
Supreme Court of Ohio explained the following:
Weight of the evidence concerns "the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
Coshocton County, Case No. 2021CA0026 4
evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis sic.)
{¶ 10} In weighing the evidence however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.
{¶ 11} R.C. 2151.414(B)(1) states permanent custody may be granted if the trial
court determines, by clear and convincing evidence, that it is in the best interest of the
child and:
(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.
(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 * * *.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
Coshocton County, Case No. 2021CA0026 5
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
{¶ 12} 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), paragraph three of the
syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
"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." Cross at 477.
{¶ 13} R.C. 2151.414(E) sets out the factors relevant to determining whether a
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Said section states in pertinent part to appellant the following:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
Coshocton County, Case No. 2021CA0026 6
either parent within a reasonable time or should not be placed with either
parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(12) The parent is incarcerated at the time of the filing of the motion
for permanent custody or the dispositional hearing of the child and will not
be available to care for the child for at least eighteen months after the filing
of the motion for permanent custody or the dispositional hearing.
(16) Any other factor the court considers relevant.
{¶ 14} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interest of a child:
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division (A)(4)
Coshocton County, Case No. 2021CA0026 7
or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised
Code, the court shall consider all relevant factors, including, but not limited
to, the following:
(a) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
(b) 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;
(c) 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 * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶ 15} For the purposes of R.C. 2151.414(B)(1), "a child shall be considered to
have entered the temporary custody of an agency on the earlier of the date the child is
adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days
after the removal of the child from home."
Coshocton County, Case No. 2021CA0026 8
{¶ 16} Appellant does not contest the fact that the child was placed in appellee's
emergency temporary custody on October 29, 2019, the child was adjudicated and
remained in appellee's temporary custody on July 22, 2020, the motion for permanent
custody was filed on April 21, 2021, and hearings on permanent custody were held on
July 24, and 25, and October 29, 2021. As correctly found by the trial court, the child has
been in appellee's custody for over twelve months of a consecutive twenty-two-month
period. R.C. 2151.414(B)(1)(d).
{¶ 17} Having made this finding, the trial court was not required to make findings
under R.C. 2151.414(E). See, In re DA.J., 8th Dist. Cuyahoga No. 110393, 2021-Ohio-
3102, ¶ 61. Nevertheless, the trial court additionally found reasonable efforts had been
made to prevent the removal of the child from the home, the child "cannot be placed with
the Child's parents within a reasonable period of time and should not be placed with either
parent pursuant to ORC Ann. 2151.414(E)," and made findings consistent with several
factors under subsection (E). Most notably regarding appellant, the trial court found he
"has been incarcerated for drug trafficking convictions the duration of the Case" and he
is "unable to meet the basic needs of the Child."
{¶ 18} The central theme in appellant's appellate brief is that permanent custody
was not in the child's best interest given mother's strides in the months preceding the
permanent custody hearings. Many of the arguments pertain to mother; however, this is
not mother's appeal, but father's. Appellant does argue the agency did not maintain
contact with him and did not permit him to have "even the most minimal telephone
contact" with the child. Appellant's Brief at 11. Appellant argues appellee "did not meet
its burden to provide reasonable efforts toward reunification and any finding to the
contrary was against the manifest weight of the evidence." Id.Coshocton County, Case No. 2021CA0026 9
{¶ 19} During the July 24, and 25, and October 29, 2021 hearings, the trial court
heard from several caseworkers including the ongoing family caseworker, a psychologist
that performed evaluations for the agency, the Coshocton County drug court coordinator,
a social worker from Coshocton Behavioral Health Choices, the guardian ad litem for the
child, the child's foster mother, and appellant. As explained by our brethren from the
Second District in In re A.J.S. & R.S., 2d Dist. Miami No. 2007CA2, 2007-Ohio-3433, ¶
22:
Accordingly, issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. In this
regard, "[t]he underlying rationale of giving deference to the findings of the
trial court rests with the knowledge that the trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered
testimony." Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77,
80, 461 N.E.2d 1273. Finally, an appellate court must adhere to every
reasonable presumption in favor of the trial court's judgment and findings of
fact. In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240, citing
Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638
N.E.2d 533.
{¶ 20} Further, " 'the 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
Coshocton County, Case No. 2021CA0026 10
court's determination will have on the lives of the parties concerned.' " In re Mauzy
Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, *2 (Nov. 13, 2000),
quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).
{¶ 21} In its judgment entry filed November 5, 2021, the trial court noted appellant
appeared by audio and video from the Madison Correctional Institution. The trial court
found appellant has been incarcerated on drug trafficking convictions during the entire
case. Appellant was arrested on January 29, 2019, after his home was under
investigation for drug trafficking, the home wherein the child resided. T. at 11. Appellant
was found with drugs in his possession. Id. He was incarcerated on June 11, 2019. T.
at 41, 57. His release date is January 2023. T. at 128, 254. Appellant "will not be
available to care for the child for at least eighteen months after the filing of the motion for
permanent custody [April 21, 2021] or the dispositional hearing [January 8, 2020]." R.C.
2151.414(E)(12). He is unable to meet the basic needs of the child. These findings are
amply supported in the record. T. at 5-6, 11-12, 36, 41-42, 57, 91-92, 128-129, 156-157,
234, 254.
{¶ 22} At the time of the July 24, 2021 hearing, appellant's last potential contact
with his child was 737 days before the hearing other than letters appellant sent to the
child; mother's last contact was 515 days before the hearing and 808 days since she had
been responsible for caring for her child. T. at 55, 130, 256-257, 270. The child does not
meet the requirements for a planned permanent living arrangement [R.C.
2151.353(A)(5)], and no one was available for kinship placement. T. at 30-31, 54.
{¶ 23} As for best interest, the trial court found the child was in need of a legally
secure placement which can only be obtained through a grant of permanent custody to
appellee. The child has developed a significant bond with his foster parents, and it is
Coshocton County, Case No. 2021CA0026 11
expected that the foster parents will provide permanency through adoption. Again, the
trial court's findings are amply supported in the record. T. at 31, 58, 111-113, 238-241,
248-250, 274-275.
{¶ 24} The guardian ad litem testified the child is happy and thriving in the foster
home. T. at 239-240. The guardian recommended granting permanent custody of the
child to appellee because the child was in need of a legally secure and permanent
placement and it was in the child's best interest. T. at 241.
{¶ 25} While we commend appellant's efforts to communicate with his child during
his incarceration, his incarceration prevented him from taking care of his child while the
child's mother was dealing with substance abuse problems. "Although it is apparent that
Father loves his child and desires to care for the child * * * 'the mere existence of a good
relationship is insufficient. Overall, we are concerned with the best interest of the child,
not the mere existence of a relationship.' " In re W.C., 8th Dist. Cuyahoga No. 90748,
2008-Ohio-2047, ¶ 26, quoting In re R.N., 8th Dist. Cuyahoga No. 83121, 2004-Ohio-
2560, ¶37.
{¶ 26} Upon review, we find sufficient clear and convincing evidence to support the
trial court's decision to terminate appellant's parental rights and grant appellee permanent
custody of the child, and do not find any manifest miscarriage of justice.
{¶ 27} The sole assignment of error is denied.
Coshocton County, Case No. 2021CA0026 12
{¶ 28} The judgment of the Court of Common Pleas of Coshocton County, Ohio,
Juvenile Division, is affirmed.
By Wise, Earle, P.J.
Delaney, J. and
Baldwin, J. concur.
EEW/db
[Cite as In re D.K., 2022-Ohio-1429.]