In re B.O.C.

[Cite as In re B.O.C., 2017-Ohio-318.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: B.O.C. : JUDGES:
: Hon. Sheila G. Farmer, P.J.
AN ABUSED CHILD : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
IN THE MATTER OF: G.F. :
: Case Nos. 16CA68
A DEPENDENT CHILD : 16CA69
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case Nos.
2008DEP00169 and 2010DEP00027
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 26, 2017
APPEARANCES:
For Appellant For Appellee
DAVID M. WATSON TIFFANY D. BIRD
3 North Main Street 731 Scholl Road
Suite 702 Mansfield, OH 44907
Mansfield, OH 44902
Richland County, Case Nos. 16CA68 and 16CA69 2
Farmer, P.J.
{¶1} On August 27, 2008, appellee, Richland County Children Services, filed a
complaint alleging G.F., born January 17, 2008, to be a dependent child. Mother of the
child is appellant, A.S.; father is B.F.
{¶2} An adjudicatory hearing was held on December 11, 2008, wherein both
parents stipulated to dependency. The child was placed under the protective supervision
of appellee.
{¶3} On February 26, 2010, appellee filed a complaint alleging a second child,
B.O.C, born February 5, 2010, to be an abused and dependent child. Mother of the child
is appellant; father is W.C.
{¶4} An adjudicatory hearing was held on March 25, 2010, wherein both parents
stipulated to abuse. The child was placed under the protective supervision of appellee.
{¶5} Thereafter, by judgment entry filed April 15, 2011, the trial court placed the
children in the legal custody of Susan Brown, B.O.C.'s paternal aunt, and protective
supervision was terminated.
{¶6} On August 28, 2014, appellant filed a motion to modify disposition. On
December 10, 2014, the trial court placed the children in the temporary custody of John
and Nancy Brown with agreement of all parties.
{¶7} On December 19, 2014, appellant filed a motion for emergency custody of
G.F. On January 8, 2015, appellee filed a motion for temporary custody of both children.
The trial court placed both children in appellee's temporary custody on February 13, 2015.
{¶8} On October 29, 2015, appellee filed a motion for permanent custody of both
children.
Richland County, Case Nos. 16CA68 and 16CA69 3
{¶9} On January 19, 2016, B.F., father of G.F., appeared before the trial court
and consented to the termination of his parental rights. The trial court terminated his
parental rights on January 21, 2016.
{¶10} Hearings before a magistrate were held on February 11 and 17, and March
29, 2016. W.C., father of B.O.C., did not attend the hearings and did not contest the
permanent custody motion.
{¶11} By decision filed April 5, 2016, the magistrate terminated the parents'
parental rights and granted appellee permanent custody of the children. Appellant filed
objections. By judgment entry filed October 11, 2016, the trial court overruled the
objections and approved and adopted the magistrate's decision.
{¶12} Appellant filed two appeals, one for each child, and this matter is now before
this court for consideration. The identical assignment of error is as follows:
I
{¶13} "THE TRIAL COURT'S DECISION TO GRANT THE STATE'S MOTION
FOR PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
I
{¶14} Appellant claims the trial court in awarding permanent custody of the
children to appellee, as the decision is not supported by clear and convincing evidence.
We disagree.
{¶15} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck
Richland County, Case Nos. 16CA68 and 16CA69 4
v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). 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, 54 Ohio St. 2d 279 (1978). 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 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 1997-Ohio-52; Eastley v.
Volkman, 132 Ohio St .3d 328, 2012-Ohio-2179. In weighing the evidence, however, we
are always mindful of the presumption in favor of the trial court's factual findings. Eastley
at ¶ 21.
{¶16} R.C. 2151.414(E) sets out the factors relevant to determining permanent
custody. Said section states in pertinent part 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
Richland County, Case Nos. 16CA68 and 16CA69 5
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
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.
(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;
Richland County, Case Nos. 16CA68 and 16CA69 6
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child when
able to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
(16) Any other factor the court considers relevant.
{¶17} R.C. 2151.414(B)(1) specifically 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
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
Richland County, Case Nos. 16CA68 and 16CA69 7
{¶18} 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 (1954), paragraph three of the syllabus.
See also, In re Adoption of Holcomb, 18 Ohio St. 3d 361 (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.
{¶19} 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)
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;
Richland County, Case Nos. 16CA68 and 16CA69 8
(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, 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;
(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.
{¶20} Although the assignment of error is written with broad language, appellant
argues the trial court erred in finding R.C. 2151.414(B)(1)(d) applied. A review of the
magistrate's April 5, 2016 decision and the trial court's October 11, 2016 judgment entry
discloses that although R.C. 2151.414(B)(1)(d) was found to apply, the provisions of R.C.
2151.414(B)(1)(a) and R.C. 2151.414(E)(1), (2), and (4) were also found to apply.
Therefore, we find the two-issue rule is applicable sub judice. The trial court had an
alternate, independent ground for terminating parental rights, finding the children cannot
and/or should not be placed with any parent at this time or in the foreseeable future as
Richland County, Case Nos. 16CA68 and 16CA69 9
they failed continuously and repeatedly to remedy the problems which caused the
children to be removed from the home.
{¶21} Throughout the long history of this case, including legal and temporary
custody being granted to relatives, appellant has maintained a hostile and uncooperative
attitude with agency personnel, and has refused to keep in regular contact with the
agency. T. at 46-47, 54, 115-116. Despite appellee's lengthy involvement, at the time of
the permanent custody hearings, appellant still had the same issues that she had four
and one-half years ago. T. at 130-131.
{¶22} Appellant's case plan included drug and alcohol assessment and any follow
up treatment as recommended, mental health evaluation and treatment, random drug
screens, and meeting the basic needs of the children. T. at 105-106.
{¶23} Appellant did not complete the drug and alcohol assessment and refused
random drug screens. T. at 107-108, 109-110. She refused a court-ordered drug screen
during the second day of hearings prior to her testimony. T. at 255-257. Appellant left
the courthouse because of a pending contempt for her refusal. T. at 287-288, 292-293.
She did not participate in the remainder of the hearing. T. at 304.
{¶24} Appellant is homeless and has no verifiable employment. T. at 111, 113-
114. The caseworker opined appellant was unable to meet the basic needs of the
children. T. at 114. In particular, the treatment plan for G.F. requires parental
commitment and follow-through regarding behavioral issues and grades in school. T. at
90-93, 207-208.
{¶25} Appellant's visitations with the children were chaotic at best. Appellant
yelled and screamed and refused to accept directions or advice. T. at 45-54, 118.
Richland County, Case Nos. 16CA68 and 16CA69 10
Appellant interaction with the children was distant, demanding, argumentative, and
aggressive, resulting in the children becoming angry, agitated, and upset. T. at 49-56,
118, 132.
{¶26} Appellant testified she has "smoked pot all my life," but has not smoked in
about six months. T. at 260. She admitted to not following through on drug or alcohol
treatment and obtaining a mental health evaluation, and agreed she did not complete the
case plan or cooperate with agency personnel. T. at 260-263, 267-268. Appellant
admitted to not having housing and an income. T. at 264-265. Her attitude was "I don't
want to do what you guys want me to do." T. at 260. "[E]very time I do what you guys
want me to do I get screwed anyways, so why do it because I'm going to get screwed
anyways." T. at 260-261. During the March 10, 2011 legal custody hearing, appellant
admitted to using marijuana to self-medicate. March 10, 2011 T. at 14-16. During this
same hearing, appellant was asked what she needed to be compliant with her medication
and stop her chronic use of marijuana, and she responded: "You guys to give me my kids
back and get out of my face, and I'll be just fine." Id. at 23.
{¶27} From our review of the legal custody hearing to the permanent custody
hearings, we find appellant has refused to comply with the case plan, and she blames all
her failures on appellee and the requirements of the case plan. It is clear that all
reasonable efforts have been made and appellant's attitude and lack of cooperation have
resulted in the loss of permanent custody.
{¶28} Although appellant does not dispute best interest, we find both children
have benefited from their respective foster placement. The children need a stable home
environment and structure, as well as weekly counseling. T. at 25-27, 93-94, 193, 197.
Richland County, Case Nos. 16CA68 and 16CA69 11
B.O.C. has stated she does not want to live with appellant. T. at 29. G.F. struggles with
change, and because of his hyperactivity and impulsive behavior, he needs ongoing
medication and therapy/counseling, and has improved in the last few months. T. at 95-
96, 192-193, 206-208. The children do well together and each has a good, positive
bonded relationship with their respective foster parents. T. at 122-124.
{¶29} Upon review, we find sufficient clear and convincing evidence to support the
trial court's decision on best interest and the granting of permanent custody of the children
to appellee.
{¶30} The sole assignment of error is denied.
{¶31} The judgment of the Court of Common Pleas of Richland County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 15