In re L.A. ( 2024 )

[Cite as In re L.A., 2024-Ohio-3436.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: L.A. (D.O.B.11/10/22) : Hon. W. Scott Gwin, P.J.
L.A. (D.O.B. 1/15/22 ) : Hon. William B. Hoffman, J,
: Hon. John W. Wise, J.
:
:
: Case No. 2024CA00064
: 2024CA00065
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case No
2022JCV00618 & 2022JCV 01339
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 6, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRANDON J. WALTENBAUGH RICHARD D. HIXSON
Stark County JFS 3808 James Court, Ste. 2
402 2nd St. S.E. Zanesville, OH 43701
Canton, OH 44702
DIANE QUAY COMPTON
Stark County JFS
221 3rd Street S.E.
Canton, OH 44702
Stark County, Case No. 2024CA00064 & 2024CA00065 2
Gwin, P.J.
{¶1} In this permanent custody case, Father contends that he was denied due
process because the permanent custody hearing went forward after he voluntarily
absented himself from the hearing, he was denied effective assistance of counsel
because his attorney did not move for a continuance after Father voluntarily absented
himself from the hearing, and the trial judge’s findings that Father’s parental rights should
be terminated was against the sufficiency and weight of the evidence.
{¶2} We find the Father was actively responsible for what he now claims to be
an error, and because his attorney participated in the hearing and cross-examined the
witnesses, Father cannot claim either error or ineffective assistance of counsel, nor can
he contend that he was denied due process of law. We further find the trial judge’s
decision that one of the children had been in the temporary custody of SCJFS for over
twelve months of a consecutive 22-month period; that Father had failed to remedy the
issues that caused the initial removal, and, therefore, the children could not be placed
with him within a reasonable time or should not be placed with him, was based upon
competent credible evidence and is not against the manifest weight or sufficiency of the
evidence. We further find that the trial judge’s decision that permanent custody to SCJFS
was in the children’s best interest was based upon competent, credible evidence and is
not against the manifest weight or sufficiency of the evidence.
{¶3} We therefore affirm the decision of the Stark County Court of Common
Pleas, Family Court Division.
Stark County, Case No. 2024CA00064 & 2024CA00065 3
Facts and Procedural History
{¶4} On February 24, 2022, Stark County Job and Family Services ("SCJFS")
filed a complaint in case 2022JCV00188 alleging the dependency, neglect, and/or abuse
of L.A. (hereinafter "L.A. 1") (b. 1/15/2022). 1 T. at 10-11. Appellant is the father of the
child. Tr. at 8.
{¶5} On the same day, the trial court held an emergency shelter care hearing in
case 2022JCV00188 and found that probable cause existed for the issuance of
emergency orders, SCJFS had engaged in reasonable efforts to prevent the need for the
removal of the child, continued residence of the child with Father was contrary to the
child's best interest, approved an adopted the pre-adjudicatory orders requested by
SCJFS, and granted temporary custody of the child to SCJFS.
{¶6} The complaint in 2022JCV00188 was dismissed and refiled on May 31,
2022 in 22JVC00618 due to statutory time constraints. T. at 11.
{¶7} On August 23, 2022, the trial court found L.A. 1 to be abused and placed
the child into the temporary custody of SCJFS. T. at 11. The trial court approved and
adopted the initial case plan, found that SCJFS had engaged in reasonable efforts to
prevent the need for the removal of the child, continued residence of the child with Father
was contrary to the child's best interest, and SCJFS had made intensive efforts to identify
and engage appropriate and willing kinship caregivers for the child. T. at 11.
{¶8} On November 16, 2022, SCJFS filed a complaint in 2022JVC01339
alleging the dependency and/or neglect of L.A. (hereinafter "L.A. 2") (b. 11/10/2022). T.
at 10-12. Appellant is the father of the child. T. at 8.
{¶9} On November 17, 2022, the trial court held an emergency shelter care
Stark County, Case No. 2024CA00064 & 2024CA00065 4
hearing and found that probable cause existed for the issuance of the emergency
orders, SCJFS had engaged in reasonable efforts to prevent the need for the removal
of the child, continued residence of the child with Father was contrary to the child's best
interest, approved and adopted the pre-adjudicatory orders requested by SCJFS, and
granted temporary custody of the child to SCJFS.
{¶10} On December 1, 2022, SCJFS filed an amended complaint to correct
the child's last name.
{¶11} On January 18, 2023, the trial court found L.A. 2 to be dependent and
placed the child into the temporary custody of SCJFS. T. at 11. The trial court approved
and adopted the initial case plan, found that SCJFS had engaged in reasonable efforts
to prevent the need for the removal of the child, continued residence of the child with
Father was contrary to the child's best interest, and SCJFS had made intensive efforts
to identify and engage appropriate and willing kinship caregivers for the child. T. at 11.
{¶12} The trial court conducted review hearings every 6 months and found
SCJFS had made reasonable efforts to prevent continued removal from the home.
{¶13} On October 17, 2023, SCJFS filed motions seeking permanent custody of
the children. T. at 3.
{¶14} On January 11, 2024, the trial court again reviewed the case. The trial court
approved and adopted the case plan, found that SCJFS had made reasonable efforts to
finalize the permanency planning in effect, SCJFS had made intensive efforts to identify
and engage appropriate and willing kinship caregivers for the child, and ordered status
quo. The trial court also found that there were no compelling reasons to preclude a
request for permanent custody.
Stark County, Case No. 2024CA00064 & 2024CA00065 5
{¶15} On April 8, 2024, the Guardian ad Litem for the children filed her final
report.
{¶16} On April 18, 2024, the permanent custody evidentiary hearing took place.
The trial was scheduled to begin at 1:00 pm. T. at 8. Father was properly served with the
motions, was present in the courthouse, refused to speak with his attorney, and told
counsel to withdraw from the case. T. at 3, 9.
{¶17} The trial court started the hearing at 1:39 pm. Father was outside of the
courtroom. T. at 3, 9. Mother of the children stipulated to the motions before any evidence
was presented regarding Father. T. at 3-9. At 1:51 pm, the trial judge was ready to hear
evidence regarding Father. T. at 8. Father’s trial counsel stated that she was "unable to
find him... we didn't see him leave the building, but he is not in the lobby and the deputy
is looking for him." Id. Father's trial counsel, at the request of Father, made a motion to
withdraw from the case which was denied by the trial judge. T. at 9. Father was not seen
again but was represented by counsel throughout the proceeding. Father’s counsel cross-
examined the two witnesses presented by SCJFS. T. at 21-23; 28-29.
{¶18} Caseworker Kelli Williams testified for SCJFS. She testified that she is
employed by SCJFS and was the prior caseworker assigned to the case. T. at 10. L.A. 1
was removed from Father's custody on February 24, 2022, found abused on August 23,
2022, and placed into the temporary custody of SCJFS. T. at 11-12. L.A. 2 was removed
from Father’s custody on November 16, 2022, found dependent on January 28, 2023,
and placed into the temporary custody of SCJFS. T. at 12. The children have remained
in the temporary custody of SCJFS throughout the cases. T. at 12. The cases were
reviewed semiannually by the trial court, where it found that SCJFS was making
Stark County, Case No. 2024CA00064 & 2024CA00065 6
reasonable efforts and approved and adopted the case plan. Id. at 12-13. The caseworker
testified that the case plan was the same for both cases. T. at 13.
{¶19} Ms. Williams testified that Father's case plan consisted of completing a
psychological evaluation at Melymbrosia, following all recommendations, completing a
drug and alcohol assessment, following all recommendations, and complying with drug
screens. T. at 13-14.
{¶20} Father did no services for the first several months of the case, and then did
no services during his nine-month incarceration from November 2022 until August 2023.
T. at 14. Father did not complete a psychological evaluation until a year and a half into
the case. Id.
{¶21} Williams testified that the evaluation added recommendations that Father
participate in domestic violence treatment due to his lengthy history of violence and
inability to regulate his emotions, and that all contact between Father and the children be
supervised. T. at 15.
{¶22} Father attended two sessions of domestic violence treatment before being
terminated for noncompliance on November 29, 2023. T. at 15. Father did not engage in
further domestic violence treatment. T. at 15.
{¶23} Ms. Williams testified that Father has a long history of methamphetamine
use and relapsed shortly after his release from prison in August 2023. T. at 15. Father
completed a substance abuse assessment in August 2023, and was recommended to
engage in individual treatment and intensive outpatient treatment. T. at 15-16. Father
attended two appointments for treatment before being terminated for noncompliance on
September 14, 2023. T. at 16. Father was also using methamphetamine in October 2023
Stark County, Case No. 2024CA00064 & 2024CA00065 7
and November 2023, and then stopped submitting to drug screens. T. at 15-17. Ms.
Williams testified that Father did not engage in further substance abuse treatment. T. at
15.
{¶24} Ms. Williams testified that she had made reasonable efforts to assist Father
in complying with his case plan services in an effort to reunify with the children. T. at 18.
She had regular contact with Father while he was in prison, she met with Father several
times upon his release, she discussed his case plan services with him, SCJFS paid for
the services, she arranged for video visitation with the children while Father was in prison,
and she continually offered to assist Father with drug treatment. T. at 18-19.
{¶25} Ms. Williams testified that, despite her efforts, Father had not substantially
complied with case plan services and had continuously and repeatedly failed to comply
with case plan objectives. T. at 18-20. She testified that she did not believe an extension
of time was warranted because Father took no ownership or responsibility of the issues
leading to the involvement of SCJFS, blamed others, and was resistant to change. T. at
20.
{¶26} SCJFS presented testimony regarding the best interests of the children. T.
at 23-29.
{¶27} Ms. Victoria Burkhart testified for SCJFS. She is employed by SCJFS as
the current worker assigned to the case. T. at 23. She testified that she had reviewed the
case file and shadowed Ms. Williams before taking over the case, and was aware of the
history. T. at 23-24.
Stark County, Case No. 2024CA00064 & 2024CA00065 8
{¶28} SCJFS explored several family members for potential placement of the
children. T. at 24. The family members were either inappropriate or declined placement
of the children. T. at 24-25.
{¶29} Ms. Burkhart testified that the children were placed together in the same
foster home throughout the entirety of the cases. T. at 25. The children are "very bonded"
to the foster family and to each other. T. at 25. The foster family is very appropriate and
tends to the needs of the children. T. at 25. The foster family is willing to adopt the
children. T. at 26.
{¶30} Ms. Burkhart testified that L.A. 1 has several health issues due to in-utero
drug exposure. T. at 26. She testified that he was in the NICU for "quite some time", has
a chronic lung disease, has ear tubes, had his adenoids removed, and has developmental
delays with his motor skills. T. at 26.
{¶31} Ms. Burkhart testified that L.A. 2 was also exposed to drugs in utero. T. at
26-27. L.A. 2 was also in the NICU and on a feeding tube early in her life, but is now "very
healthy" and on target. T. at 27.
{¶32} Visitation with Father and the children contained positive and negative
results. T. at 27-28. During one visit, Father left scissors on the floor in reach of the
children and let L.A. 2 put plastic zip ties into her mouth. T. at 27. Father lacks basic
developmental knowledge of children. T. at 27. Father would not play with the children.
T. at 27. Burkhart testified that in her opinion Father was not capable of meeting the needs
of the children. T. at 28.
Stark County, Case No. 2024CA00064 & 2024CA00065 9
{¶33} Ms. Burkhart testified that she believed permanent custody was in the best
interests of the children because Father had not participated in case plan services and
had not made progress with his case. T. at 28.
{¶34} The guardian ad litem told the trial judge that the children were doing
"exceptionally well" in the foster home, adoption was in their best interests, and that any
bond between Father and the children was significantly outweighed by the benefits of
permanent custody. T. at 30. The foster mother told the trial judge she is willing to adopt
the children. Id.
{¶35} The trial judge took the matter under advisement. T. at 30.
{¶36} On April 22, 2024, the trial judge issued his decision and findings of fact
granting permanent custody of the children to SCJFS and terminating the parental rights
of Father. Specifically, the trial judge found that, despite reasonable efforts by SCJFS,
the children could not and should not be placed with Father within a reasonable amount
of time, Father had failed to remedy the problems leading to the children’s initial removal,
L.A. 1 had been in the continuous temporary custody of SCJFS for 12 of 22 months, and
permanent custody was in the children’s best interests.
Assignments of Error
{¶37} Father raises three Assignments of Error,
{¶38} “I. APPELLANT’S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED
WHEN THE PERMANENT CUSTODY HEARING PROCEEDED AND WAS HELD IN
APPELLANT’S ABSENCE, DESPITE APPELLANT’S PRESENCE AT THE HEARING
PRIOR TO THE PRESENTATION OF EVIDENCE.
Stark County, Case No. 2024CA00064 & 2024CA00065 10
{¶39} “II. APPELLANT’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
AND DUE PROCESS OF LAW WAS DENIED BY TRIAL COUNSEL’S FAILURE TO
REQUEST A CONTINUANCE OF THE PERMANENT CUSTODY HEARING UNTIL
APPELLANT’S PRESENCE COULD BE SECURED.
{¶40} “III. THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY AND
TERMINATION OF APPELLANT’S PARENTAL RIGHTS WAS UNSUPPORTED BY CLEAR
AND CONVINCING EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
I.
{¶41} In his First Assignment of Error, Father contends that a parent has a due
process right to be present at a permanent custody hearing. He argues that he was not
given a fair opportunity to be heard at the permanent custody trial. He suggests that the
trial judge failed to protect his due process rights because the judge did not make a
greater effort to locate him after he decided the leave the hearing without telling his
attorney.
Standard of Review
{¶42} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157(1990), quoting Stanley v. Illinois, 405 U.S. 645 (1972). A
parent's interest in the care, custody, and management of his or her child is
“fundamental.” Id.; Santosky v. Kramer, 455 U.S. 745, 753 (1982). The permanent
termination of a parent's rights has been described as, “* * * the family law equivalent to
the death penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
Stark County, Case No. 2024CA00064 & 2024CA00065 11
allows.” Id. An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1).
{¶43} To determine whether a parent was incorrectly denied the right to due
process by his inability to attend a hearing, some courts have balanced: (1) the
fundamental right of a parent to raise the child; (2) the risk of erroneous deprivation of
that right, and the probable value of any procedural safeguards provided; and (3) the
burden imposed on the government in providing additional safeguards. In re Sprague,
113 Ohio App.3d 274, 276 12th Dist. 1996), citing Mathews v. Eldridge, 424 U.S. 319(1976).
Issue for appellate review: Whether father was incorrectly denied the right to due
process by his inability to attend a hearing.
{¶44} In cases in which a parent has communicated with the trial court or with
counsel to explain a problem attending a scheduled hearing, Ohio courts have recognized
that the failure of a trial court to take extra care to ensure the parent’s presence is an
abuse of discretion. See, In re Savanah M., 2003-Ohio-5855, ¶34(6th Dist.); In re Q.G.,
2007-Ohio-1312, ¶12 (8th Dist.); In re Magnus, 2001 WL 1045556 (10th Dist. Sept. 13,
2001).
{¶45} Nothing in the record suggests that Father was unable to attend the
permanent custody trial. Rather, the record reflects that he was present at the start and
asked his attorney to withdraw from the case. Father left the building without telling
anyone. Nothing in the record suggests that Father later attempted to contact the judge
or his attorney to explain his absence.
Stark County, Case No. 2024CA00064 & 2024CA00065 12
{¶46} In the case at bar, any potential deprivation of Father’s rights was a result
of his own actions. Under the doctrine of “invited error,” it is well-settled that “a party will
not be permitted to take advantage of an error which he himself invited or induced the
trial court to make.” State ex rel. Smith v. O’Connor, 71 Ohio St.3d 660, 663 (1995), citing
State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359 (1994). See, also, Lester v. Leuck
(1943), 142 Ohio St. 91(1943), paragraph one of the syllabus.
{¶47} Father cites no caselaw that requires a trial judge to search for a party who
voluntarily chooses to leave after the start of a court proceeding.
{¶48} Father’s First Assignment of Error is overruled.
II.
{¶49} In his Second Assignment of Error, Father argues that he was denied
effective assistance of trial counsel because counsel did not ask the judge to continue the
permanent custody trial after the Father left the building after the start of the trial without
telling his attorney.
Standard of Review
{¶50} Nearly fifty years ago, the Ohio Supreme Court set forth the standard to
determine ineffective assistance of counsel claims under Section 10, and Section 16 of
Article I, Ohio Constitution and the Sixth Amendment to the United States Constitution in
State v. Hester, 45 Ohio St.2d 71 (1976), and thereafter slightly revised in State v. Lytle,
48 Ohio St.2d 391(1976), vacated in part on other grounds, 438 U.S. 910 (1978).
{¶51} “In State v. Hester, supra, at page 79, 341 N.E.2d 304, this Court held ‘the
test to be whether the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.’” State v. Jackson, 64 Ohio St.2d 107, 110 (1980).
Stark County, Case No. 2024CA00064 & 2024CA00065 13
{¶52} In State v. Lytle, the Court held “[w]hen presenting an allegation of
ineffective assistance of trial counsel to a reviewing court, an appellant must initially show
a substantial violation of an essential duty by that counsel.” 48 Ohio St.2d 391, 396–397.
The Court further noted, “[w]hen considering an allegation of ineffective assistance of
counsel, a two-step process is usually employed. First, there must be a determination as
to whether there has been a substantial violation of any of defense counsel's essential
duties to his client. Next, and analytically separate from the question of whether the
defendant's Sixth Amendment rights were violated, there must be a determination as to
whether the defense was prejudiced by counsel's ineffectiveness.” 48 Ohio St.2d 396-
397. Accord, State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989). To establish prejudice,
a defendant must show “that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Andrus v. Texas, 590 U.S. 806 (2020). See, also, State v. Baker, 2024-Ohio-906, ¶¶ 36-
38, appeal not allowed, 2024-Ohio-2576, ¶¶ 36-38.
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel’s failure to request a continuance, the result of the proceeding would have
been different.
{¶53} We note that Father attempted to have his attorney withdraw from the case
at the start of the proceedings. Although no continuance was ever requested, we cannot
determine the probable value of continuing the hearing so Father could be present
because he did not demonstrate an interest in attending the hearing or show he would
have made himself available for the hearing had it been continued. In re Magnus, 2001
WL 1045556 (10th Dist. Sept. 13, 2001). Noticeably absent from the trial record or the
Stark County, Case No. 2024CA00064 & 2024CA00065 14
appellate record is any explanation as to why Father decided to leave once the permanent
custody hearing began. Counsel remained at the hearing and cross-examined the state’s
witnesses. Father’s own failure to appear and avail himself of the opportunity to prepare
and present his defense to the allegations brought by SCJFS was not the result of a lack
of due process but, rather, a conscious choice on his part to leave and to not tell his
attorney, or the trial judge, that he was leaving.
{¶54} Father was actively responsible for what he now claims to be an error and,
thus, is precluded from arguing this before this court. See State v. Seiber, 56 Ohio St.3d
4, 17(1990); In the Matter of Butler, 1996 WL 132233 (5th Dist. Mar. 4, 1996) (mother was
estopped from raising ineffective assistance of counsel argument on appeal for her
counsel’s withdrawal at PCC dispositional hearing when it was caused solely by mother’s
voluntary absence and failure to communicate with her attorney regarding her case). In
re Magnus, 2001 WL 1045556 (10th Dist. Sept. 13, 2001).
{¶55} Apart from failing to demonstrate that his counsel’s performance was
deficient, Father has also not demonstrated, or even asserted, that the outcome would
have been any different had his attorney presented his case differently. He does not even
present this court with any examples of evidence, testimony, or witnesses that he would
have desired his attorney to present or elicit. Under the circumstances of this case, we
do not find that Father’s trial counsel was ineffective. This argument is without merit. In re
Magnus, 2001 WL 1045556 (10th Dist. Sept. 13, 2001).
{¶56} Father’s Second Assignment of Error is overruled.
Stark County, Case No. 2024CA00064 & 2024CA00065 15
III.
{¶57} In his Third Assignment of Error, Father challenges the trial judge’s award
of permanent custody of the children to SCJFS as against both the sufficiency and the
manifest weight of the evidence.
Standard of Review
{¶58} The Ohio Supreme Court has recently delineated our standard of review as
follows, “the proper appellate standards of review to apply in cases involving a juvenile
court’s decision under R.C. 2151.414 to award permanent custody of a child and to
terminate parental rights are the sufficiency-of-the-evidence and/or manifest-weight-of-
the-evidence standards, as appropriate depending on the nature of the arguments that
are presented by the parties. In re: Z.C., 2023-Ohio-4703, ¶18.
Sufficiency of the Evidence
{¶59} Whether the evidence is legally sufficient to sustain a verdict is a question
of law. In re: Z.C., 2023-Ohio-4703, ¶13. “When applying a sufficiency-of-the-evidence
standard, a court of appeals should affirm a trial court when ‘the evidence is legally
sufficient to support the jury verdict as a matter of law.’” Bryan-Wollman v. Domonko, 115
Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, ¶ 3, quoting Thompkins at 386, 678
N.E.2d 541, quoting Black’s at 1433.” Id.{¶60} The Ohio Supreme Court stated that where the degree of proof required to
sustain an issue must be “clear and convincing,” means “[t]he measures or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the
allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as required beyond a reasonable
Stark County, Case No. 2024CA00064 & 2024CA00065 16
doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of
Haynes, 25 Ohio St.3d 101, 103-104 (1986); Accord, In re: Z.C., 2023-Ohio-4703, ¶7. A
court of appeals will examine the record to determine whether the trier of facts had
sufficient evidence before it by which the court could have formed a firm belief or
conviction that the essential statutory elements for a termination of parental rights have
been established. 2023-Ohio-4703, ¶8; In re Adkins, 2006-Ohio-431, ¶17 (5th Dist.).
Manifest weight of the evidence
{¶61} The term “‘manifest weight of the evidence’. . . relates to persuasion.”
Eastley v. Volkman, 2012-Ohio-2179, ¶19. It “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.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387(1997),
superseded by constitutional amendment on other grounds as stated by State v. Smith,
80 Ohio St.3d 89, 102 at n.4 (1997); State v. Martin, 2022-Ohio-4175, ¶ 26.
{¶62} Weight of the evidence addresses the evidence's effect of inducing belief.
Thompkins, at 386-387; State v. Williams, 2003-Ohio-4396, ¶83. When a court of appeals
reverses a judgment of a trial court on the basis that the decision is against the weight of
the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. State v. Jordan, 2023-Ohio-3800;
Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42(1982) (quotation marks
omitted); State v. Wilson, 2007-Ohio-2202, ¶25, citing Thompkins.
{¶63} In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact. Eastley, 2012-Ohio-2179 at ¶ 21; In re Z.C.,
2023-Ohio-4703, ¶ 14. “The underlying rationale of giving deference to the findings of the
Stark County, Case No. 2024CA00064 & 2024CA00065 17
trial court rests with the knowledge that the [trier of fact] 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, 10 Ohio St.3d 77, 80 (1984).
{¶64} When there is conflicting testimony presented at trial, a defendant is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented. “‘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.’” Seasons Coal Co.,
Inc at fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, §603, at 191-192 (1978); In re Z.C.,
2023-Ohio-4703, ¶14. In Cross v. Ledford, 161 Ohio St. 469, 477(1954), the Supreme
Court further cautioned,
The mere number of witnesses, who may support a claim of one or the other
of the parties to an action, is not to be taken as a basis for resolving disputed
facts. The degree of proof required is determined by the impression which
the testimony of the witnesses makes upon the trier of facts, and the
character of the testimony itself. Credibility, intelligence, freedom from bias
or prejudice, opportunity to be informed, the disposition to tell the truth or
otherwise, and the probability or improbability of the statements made, are
all tests of testimonial value. Where the evidence is in conflict, the trier of
facts may determine what should be accepted as the truth and what should
be rejected as false. See Rice v. City of Cleveland, 114 Ohio St. 299, 58
N.E.2d 768.
Stark County, Case No. 2024CA00064 & 2024CA00065 18
{¶65} 161 Ohio St. at 477-478. (Emphasis added).
{¶66} The interplay between the presumption of correctness and the ability of an
appellate court to reverse a verdict based on the manifest weight of the evidence has
been stated as follows, “’Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.’” Seasons Coal Co., 10 Ohio St.3d
at 80, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280 - 281.
See, also, In re: Z.C., 2023-Ohio- 4703, ¶15; Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio
St.3d 169, 172 (1983); In re Sekulich, 65 Ohio St.2d 13, 16 (1981).
{¶67} If a court of appeals determines that a judgment is against the manifest
weight of the evidence, the proper remedy is a remand for a new trial. 2023-Ohio-4703,
¶16, citing Eastley at ¶ 22. However, “[r]eversal on the manifest weight of the evidence
and remand for a new trial are not to be taken lightly.” Eastley v. Volkman, 2012-Ohio-
2179, ¶ 31; In re: Z.C., 2023-Ohio- 4703, ¶16.
Requirements for Permanent Custody Awards
{¶68} 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
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶69} 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
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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, 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, or 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 if, as described
in division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state, 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 placing agencies for twelve or
more months of a consecutive twenty-two-month period, or 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 and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
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{¶70} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
judge must apply when ruling on a motion for permanent custody. In practice, the trial
judge 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.
Temporary Custody for at least 12 out of a consecutive 22-month period-R.C.
2151.414(B)(1)(d).
{¶71} The “12 of 22” provisions set forth in R.C. 2151.413(D)(1) and R.C.
2151.414(B)(1)(d) balance the importance of reuniting a child with the child’s parents
against the importance of a speedy resolution of the custody of a child. In re C.W., 2004-
Ohio-6411, ¶22. Through the “12 of 22” provisions in the permanent-custody statutes, the
legislature provides parents with 12 months to work toward reunification before an agency
can institute a permanent-custody action asserting R.C. 2151.414(B)(1)(d) grounds. Id.{¶72} “Before a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22-month period.” In re: C.W., 2004-Ohio-6411 at paragraph one of the
syllabus. When calculating this time period, the Court in C.W. cautioned, “the time that
passes between the filing of a motion for permanent custody and the permanent-custody
hearing does not count toward the 12-month period set forth in R.C. 2151.414(B)(1)(d).”
2004-Ohio-6411, ¶26.
{¶73} R.C. 2151.414(B)(1)(e) states that, “[f]or the purposes of division (B)(1) of
this section, a child shall be considered to have entered the temporary custody of an
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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.”
{¶74} In the case at bar, the record establishes by competent credible evidence
that L.A. 1 had been in the temporary custody of the SCJFS for over twelve months of a
consecutive 22-month period at the time the motion for permanent custody was filed.
{¶75} 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, 2007-Ohio-5805 (5th Dist.); In re: K.C., 2024-Ohio-
2081, ¶45 (10th Dist.). This finding alone, in conjunction with a best interest finding, is
sufficient to support the grant of permanent custody. In re Calhoun, 2008-Ohio-5458 (5th
Dist.) In re: K.C., 2024-Ohio-2081, ¶45 (10th Dist.).
{¶76} Because Father has not challenged the twelve of twenty-two-month finding
as to L.A. 1, we would only need to address the best interest of L.A. 1 pursuant to R.C.
2151.414(D). Id. However, the trial judge also found that R.C. 2151.414(B)(1)(a) was
applicable to L.A. 1 and to L.A. 2.
Parental Placement within a Reasonable Time– R.C. 2151.414(B)(1)(a)
{¶77} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed with
the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a finding
under R.C. 2151.414(E)(1) - (15), the court shall determine the children cannot or should
not be placed with the parent. A trial court may base its decision that a child cannot be
placed with a parent within a reasonable time or should not be placed with a parent upon
the existence of any one of the R.C. 2151.414(E) factors. The existence of one factor
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alone will support a finding that the child cannot be placed with the parent within a
reasonable time. See In re William S., 75 Ohio St.3d 95 (1996); In re Hurlow, 1997 WL
701328 (4th Dist. Sept. 21, 1998); In re Butcher, 1991 WL 62145 (4th Dist. Apr. 10, 1991).
{¶78} R.C. 2151.414(E) sets forth factors a trial court is to consider 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. Specifically, Section (E) provides, in pertinent part,
as follows:
(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
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
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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 changing parental conduct to allow them to resume and
maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual disability,
physical disability, or chemical dependency of the parent that is so severe
that it makes the parent unable to provide an adequate permanent home
for the child at the present time and, as anticipated, within one year after
the court holds the hearing pursuant to division (A) of this section or for the
purposes of division (A)(4) of section 2151.353 of the Revised Code;
…
(16) Any other factor the court considers relevant.
{¶79} As set forth above, the trial judge’s findings are based upon competent
credible evidence. The record includes the recommendation of the guardian ad litem for
the children, and the testimony of the witnesses at trial. The trial judge was in the best
position to determine the credibility of the witnesses.
{¶80} The judge found that SCJFS had made reasonable efforts to prevent the
removal, to eliminate the continued removal, or to make it possible for the children to
return home safely to Father’s home. The record supports the judge’s finding that Father
has not shown consistent sustained progress to have the children returned to his custody.
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{¶81} It does not appear that Father has been able to apply any behavioral
changes that he has attempted to learn. Despite offering numerous services, Father was
unable or unwilling to mitigate the concerns that led to the children’s removal. As set forth
in our Facts and Procedural History, supra, we find there was sufficient and substantial
competent evidence Father failed to remedy the problems which initially caused the
removal of the children from her home. Father left the hearing, never to return, after the
proceedings began evidencing his disinterest in working toward reunification with his
children.
{¶82} In the case of In re: Summerfield, 2005-Ohio-5523 (5th Dist.), this Court
found where, despite marginal compliance with some aspects of the case plan, the exact
problems that led to the initial removal remained in existence, a court does not err in
finding the child cannot be placed with the parent within a reasonable time. Accord, In re:
K.C., 2024-Ohio-2081, ¶56 (10th Dist.).
{¶83} The evidence demonstrated the very little successful efforts Father had
made on the case plan. On that point, the evidence demonstrates that any improvement
that Father has made in his life is tentative and, perhaps, temporary, and that he is at risk
of relapse. The trial court found that Father is not able to be a successful parent to the
children.
{¶84} We find there is competent and credible evidence, which, if believed, would
convince the average mind that the children cannot be placed with Father within a
reasonable time or should not be placed with Father.
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The Best Interest of the Child
{¶85} An agency that seeks permanent custody of a child bears the burden of
proving by clear and convincing evidence that the grant of permanent custody is in the
child’s best interest. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26.
{¶86} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child’s best interests would be served by granting the permanent
custody motion. These factors include but are not limited to: (1) the interrelationship of
the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)
the child’s need for a legally secure placement and whether such a placement can be
achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)
to (11) apply.
{¶87} The factors in R.C. 2151.414(E)(7) through (11), which are referred to in
R.C. 2151.414(D)(1)(e), involve a parent’s having been convicted of or pleaded guilty to
specific criminal offenses against the child, the child’s sibling or another child who lived
in the parent’s household; a parent’s withholding medical treatment or food from the child;
a parent’s repeatedly placing the child at substantial risk of harm because of alcohol or
drug abuse; a parent’s abandoning the child; and a parent’s having had parental rights
as to the child’s sibling involuntarily terminated.
{¶88} No one element is given greater weight or heightened significance. In re
C.F., 2007-Ohio-1104. R.C. 2151.414(D)(1) does not require a juvenile court to make
specific findings regarding each best-interest factor listed in R.C. 2151.414(D)(1) or to
include in its decision or judgment entry a written discussion of each of those factors. In
re: A.M., 2020-Ohio-5102, ¶33.
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{¶89} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. 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, 2000 WL 1700073 (5th Dist. Nov. 13,
2000), citing in re Awkal, 85 Ohio App.3d 309, 316 (8th Dist. 1994).
{¶90} In the case at bar, SCJFS investigated potential placement with relatives
and found none suitable. Further, the evidence establishes that L.A. 1 has substantial
medical needs which make it difficult for him to be successfully returned to Father.
Considering the many obstacles in Father’s life the trial judge found the children’s need
for a legally secure placement cannot be achieved without permanent custody. Nothing
in the record before us demonstrates that more time or a return of custody to the Father
will in any way benefit the children. The case has been ongoing for over two years and
Father has not demonstrated a willingness to give up drugs and do the work necessary
to obtain reunification. He left the hearing without participating, offering evidence, or
demonstrating any interest in the outcome.
{¶91} In the present case, the trial judge concluded the children's need for legally
secure placement could not be achieved without awarding permanent custody to SCJFS.
Upon review of the record, the record supports the trial judge's finding that granting the
motion for permanent custody is in the children’s best interest.
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{¶92} In short, the juvenile judge’s judgment entry demonstrates that the judge
satisfied his statutory duty to consider the best interest factors set out in R.C.
2151.414(D)(1)(a) through (e).
Conclusion
{¶93} For these reasons, we find that the trial judge correctly found that L.A. 1
had been in the temporary custody of SCJFS for over twelve months of a consecutive 22-
month period.
{¶94} We further find the trial judge’s determination that Father had failed to
remedy the issues that caused the initial removal, and, therefore, the children could not
be placed with him within a reasonable time or should not be placed with him was based
upon competent credible evidence and is not against the manifest weight or sufficiency
of the evidence.
{¶95} We further find that the trial court’s decision that permanent custody to
SCJFS was in the children’s best interest was based upon competent, credible evidence
and is not against the manifest weight or sufficiency of the evidence.
{¶96} Because the evidence in the record supports the trial judge’s judgment, we
overrule Appellant-Father’s Third Assignment of error.
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{¶97} The decision of the Stark County Court of Common Pleas, Family Court
Division is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur