[Cite as In re A.M.S-J., 2019-Ohio-1160.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: Hon. William B. Hoffman, P.J A.M. S-J. Hon. Patricia A. Delaney, J. (DOB 12/12/2016) Hon. Earle E. Wise, Jr., J.
Case No. 2018CA00170
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Juvenile Court Division Case No. 2017JCV00042
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY:
March 28, 2019 APPEARANCES:
For Plaintiff-Appellee For Father-Appellant
BRANDON J. WALTENBAUGH DAVID L. SMITH Stark County Department of P.O. Box 20407 Jobs and Family Services Canton, Ohio 44701 402 2nd Street, SE Canton, Ohio 44702 Stark County, Case No. 2018CA00170 2
Hoffman, P.J. {¶1} Appellant A.J. appeals the judgment entered by the Stark County Common
Pleas Court, Juvenile Division, awarding permanent custody of his son A. S-J. to
Appellee, the Stark County Department of Job and Family Services (hereinafter “JFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} A. S-J. was born December 12, 2016. Four days later, the Carroll County
Department of Job and Family Services filed a complaint alleging the child was
dependent, neglected, and abused. Stark County accepted jurisdiction over the case on
January 10, 2017, because the child’s mother resided in Stark County.
{¶3} The original complaint alleged concerns the child tested positive for opiates
at birth, Mother had other children not in her custody due to her drug use, and Appellant
was not in a position to safely care for the child. Appellant’s case plan required him to go
to Northeast Ohio Behavioral Health for a parenting assessment, and to CommQuest for
a drug and alcohol evaluation. He was further required to participate in Goodwill
Parenting classes and individual counseling.
{¶4} Appellant was prescribed medication for ADHD, and submitted to drug
screens. The screens showed he was not taking his medication prescribed for ADHD.
On seven of forty-eight screens, he tested positive for cocaine, crystal methamphetamine,
and/or alcohol. Appellant was then asked to engage again in a drug and alcohol
assessment, which he failed to complete.
{¶5} Appellant took the Goodwill Parenting class in November of 2017, but did
not successfully complete the class. Appellee recommended he take the class again after
engaging in counseling and taking his prescribed medication. Pursuant to Goodwill rules,
Appellant could not enroll again in the program until July of 2018, as before enrolling Stark County, Case No. 2018CA00170 3
again he had to maintain three to four months of sobriety and engage in counseling.
Goodwill parenting was willing to take him in the August, 2018 session if he screened
clean for drugs two times. He missed the Goodwill Parenting appointment in August
because he had been arrested for child endangering and disorderly conduct and was in
jail.
{¶6} The child has many medical issues. He had seizures early on in his life.
He has a speech therapist, feeding therapist, neurologist, physical therapist, and
nutritionist. He was on phenobarbital for nine months after birth because he tested
positive for opiates. He struggled with taking a bottle, and required a thickened formula
requiring care during feeding. Initially he was about two months behind on developmental
milestones, but at the time of the permanent custody hearing was doing much better. The
foster mother quit working full-time to care for the child’s many needs, and the foster
parents are interested in adopting him.
{¶7} Appellee filed a motion for permanent custody on August 24, 2018. Mother
did not appear for the hearing and was found to have abandoned the child. The court
found the child could not be placed with Appellant within a reasonable period of time, and
further the child was in the custody of Appellee for more than twelve of the last twenty-
two months. The court found permanent custody of the child was in the best interests of
the child, and awarded permanent custody to Appellee.
{¶8} It is from the October 29, 2018 judgment of the court terminating parental
rights and awarding permanent custody of A. S-J. Appellant prosecutes this appeal,
assigning as error: Stark County, Case No. 2018CA00170 4
I. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILD
CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. THE TRIAL COURT’S JUDGMENT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY GRANTING
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
I.
{¶9} Appellant argues the judgment finding the child could not be placed with
him within a reasonable period of time was against the manifest weight of the evidence.
{¶10} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
and convincing evidence” as “[t]he measure 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 doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
{¶11} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine whether the Stark County, Case No. 2018CA00170 5
trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State
v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment
is “supported by some competent, credible evidence going to all the essential elements
of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at
74, 564 N.E.2d 54.
{¶12} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):
The 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.
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[Cite as In re A.M.S-J., 2019-Ohio-1160.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: Hon. William B. Hoffman, P.J A.M. S-J. Hon. Patricia A. Delaney, J. (DOB 12/12/2016) Hon. Earle E. Wise, Jr., J.
Case No. 2018CA00170
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Juvenile Court Division Case No. 2017JCV00042
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY:
March 28, 2019 APPEARANCES:
For Plaintiff-Appellee For Father-Appellant
BRANDON J. WALTENBAUGH DAVID L. SMITH Stark County Department of P.O. Box 20407 Jobs and Family Services Canton, Ohio 44701 402 2nd Street, SE Canton, Ohio 44702 Stark County, Case No. 2018CA00170 2
Hoffman, P.J. {¶1} Appellant A.J. appeals the judgment entered by the Stark County Common
Pleas Court, Juvenile Division, awarding permanent custody of his son A. S-J. to
Appellee, the Stark County Department of Job and Family Services (hereinafter “JFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} A. S-J. was born December 12, 2016. Four days later, the Carroll County
Department of Job and Family Services filed a complaint alleging the child was
dependent, neglected, and abused. Stark County accepted jurisdiction over the case on
January 10, 2017, because the child’s mother resided in Stark County.
{¶3} The original complaint alleged concerns the child tested positive for opiates
at birth, Mother had other children not in her custody due to her drug use, and Appellant
was not in a position to safely care for the child. Appellant’s case plan required him to go
to Northeast Ohio Behavioral Health for a parenting assessment, and to CommQuest for
a drug and alcohol evaluation. He was further required to participate in Goodwill
Parenting classes and individual counseling.
{¶4} Appellant was prescribed medication for ADHD, and submitted to drug
screens. The screens showed he was not taking his medication prescribed for ADHD.
On seven of forty-eight screens, he tested positive for cocaine, crystal methamphetamine,
and/or alcohol. Appellant was then asked to engage again in a drug and alcohol
assessment, which he failed to complete.
{¶5} Appellant took the Goodwill Parenting class in November of 2017, but did
not successfully complete the class. Appellee recommended he take the class again after
engaging in counseling and taking his prescribed medication. Pursuant to Goodwill rules,
Appellant could not enroll again in the program until July of 2018, as before enrolling Stark County, Case No. 2018CA00170 3
again he had to maintain three to four months of sobriety and engage in counseling.
Goodwill parenting was willing to take him in the August, 2018 session if he screened
clean for drugs two times. He missed the Goodwill Parenting appointment in August
because he had been arrested for child endangering and disorderly conduct and was in
jail.
{¶6} The child has many medical issues. He had seizures early on in his life.
He has a speech therapist, feeding therapist, neurologist, physical therapist, and
nutritionist. He was on phenobarbital for nine months after birth because he tested
positive for opiates. He struggled with taking a bottle, and required a thickened formula
requiring care during feeding. Initially he was about two months behind on developmental
milestones, but at the time of the permanent custody hearing was doing much better. The
foster mother quit working full-time to care for the child’s many needs, and the foster
parents are interested in adopting him.
{¶7} Appellee filed a motion for permanent custody on August 24, 2018. Mother
did not appear for the hearing and was found to have abandoned the child. The court
found the child could not be placed with Appellant within a reasonable period of time, and
further the child was in the custody of Appellee for more than twelve of the last twenty-
two months. The court found permanent custody of the child was in the best interests of
the child, and awarded permanent custody to Appellee.
{¶8} It is from the October 29, 2018 judgment of the court terminating parental
rights and awarding permanent custody of A. S-J. Appellant prosecutes this appeal,
assigning as error: Stark County, Case No. 2018CA00170 4
I. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILD
CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. THE TRIAL COURT’S JUDGMENT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY GRANTING
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
I.
{¶9} Appellant argues the judgment finding the child could not be placed with
him within a reasonable period of time was against the manifest weight of the evidence.
{¶10} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
and convincing evidence” as “[t]he measure 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 doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
{¶11} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine whether the Stark County, Case No. 2018CA00170 5
trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State
v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment
is “supported by some competent, credible evidence going to all the essential elements
of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at
74, 564 N.E.2d 54.
{¶12} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):
The 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.
{¶13} Moreover, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties' demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415,
419, 674 N.E.2d 1159 (1997); see, also, In re: Christian, 4th Dist. Athens App. No.
04CA10, 2004-Ohio-3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004-
Ohio-2040. Stark County, Case No. 2018CA00170 6
{¶14} Pursuant to 2151.414(B)(1), the court may grant permanent custody of a
child to the movant if the court determines “that it is in the best interest of the child to grant
permanent custody to the agency that filed the motion for permanent custody 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.
(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 Stark County, Case No. 2018CA00170 7
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.
(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.
{¶15} In the case sub judice, the trial court found by clear and convincing evidence
the child had been in the temporary custody of a public children services agency for twelve
or more months of a consecutive twenty-two month period pursuant to R.C.
2151.414(B)(1)(d). Appellant does not challenge the trial court's finding. This finding
alone, in conjunction with a best-interest finding, is sufficient to support the grant of
permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45.
We therefore need not address Appellant’s argument the trial court’s finding pursuant to
R.C. 2151.414(B)(1)(a) was against the manifest weight and sufficiency of the evidence.
{¶16} The first assignment of error is overruled.
II.
{¶17} In his second assignment of error, Appellant argues the court’s finding
permanent custody was in the best interests of the child is against the manifest weight
and sufficiency of the evidence. Stark County, Case No. 2018CA00170 8
{¶18} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,
but not limited to, the following: (1) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (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; (3) the custodial history of the child; and (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.
{¶19} During the best interests portion of the trial, Paige Horn, the caseworker
employed by Appellee assigned to Appellant’s case, testified the child tested positive for
opiates at birth and was on phenobarbital for nine months. He had seizures after birth.
Because he could not take a bottle, he was fed thickened formula and feeding required
careful observation. He was involved in feeding therapy, speech therapy, and physical
therapy, and had a neurologist because the back of his head was flat. Help Me Grow was
involved, and he was two to three months behind developmental milestones.
{¶20} In the foster placement, the child was doing very well and had come a long
way. He was a bit behind, but was able to walk and run, say words, and understand what
was said to him. Although he was doing well, he was still medically fragile, and had
special needs. The foster mother quit her full-time job and switched to working two
midnight shifts in order to be give the child the care he requires. Stark County, Case No. 2018CA00170 9
{¶21} The child had been in the same foster home for nearly two years at the time
of trial. He had a significant bond with the foster parents and both of their biological
children. The family was interested in adoption.
{¶22} The caseworker further testified Appellant absolutely loves and has a bond
with his son. She observed a bond between Appellant and the child, and although the
child was not old enough to say how he feels, he appeared comfortable with Appellant.
However, she testified she believed permanent custody was in the best interests of the
child because Appellant had not been successful in completing his case plan, and was
unable to place his child’s needs above his own.
{¶23} The guardian ad litem assigned to the case testified he met with Appellant
many times during the life of the case. He did observe a bond between Appellant and his
child at visits. He believed Appellant wanted the child back, but Appellant’s arrest in
August of 2018, was the straw that broke the camel’s back, and the guardian did not
believe Appellant had the child’s best interests in mind. His recommendation was
permanent custody be granted to Appellee, and he believed permanent custody to be in
the child’s best interests.
{¶24} Based on the testimony, we find the trial court’s finding permanent custody
is in the best interests of the child is supported by clear and convincing evidence and is
not against the manifest weight of the evidence.
{¶25} The second assignment of error is overruled.
{¶26} The judgment of the Stark County Common Pleas Court, Juvenile Division,
is affirmed. Stark County, Case No. 2018CA00170 10
By: Hoffman, P.J. Delaney, J. and Wise, Earle, J. concur