In re A.N.

2024 Ohio 589

• Court: Ohio Court of Appeals
• Decided: February 14, 2024
• Docket: 2023 CA 00157
• Status: Published

Opinion

[Cite as In re A.N., 2024-Ohio-589.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. A.N. Hon. Andrew J. King, J.

MINOR CHILD Case No. 2023 CA 00157

OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2021 JCV 01187

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 14, 2024

APPEARANCES:

For Appellant Father For SCDJFS

BRIANNA R. BROTHAG QUAY COMPTON 201 Cleveland Avenue, SW 221 3rd Street SE Suite 104 Canton, Ohio 44702 Canton, Ohio 44702 Stark County, Case No. 2023 CA 00157 2

Wise, J.

{¶1} Father appeals the November 3, 2023 judgment entry, of the Stark County

Court of Common Pleas, Family Court Division, awarding permanent custody of A.N. to

the Stark County Department of Job and Family Services (SCDJFS/Agency). For the

reasons that follow, we affirm the decision of the Family Court.

FACTS AND PROCEDURAL HISTORY

{¶2} The child, A.N., was born on March 16, 2011. Her biological mother, C.N.

is not involved in this appeal because she relinquished permanent custody of the child

to SCDJFS. Father-Appellant is the biological father of A.N. and the sole Appellant in

this appeal.

{¶3} When appellant-father dropped A.N. off at a friend’s house without any

belongings and didn’t timely return to pick her up, SCDJFS filed a complaint [2021

JCV00900] alleging dependency, neglect and/or abuse with the Stark County Family

Court. An emergency shelter care hearing was held and temporary custody of A.N. was

awarded to the Agency. Judgment Entry, September 21, 2021.

{¶4} A.N. was placed in a foster home where she was still residing at the time of

the permanent custody hearing.

{¶5} On December 3, 2021, the case was dismissed due to statutory time

constraints, and the Agency refiled its complaint again alleging dependency, neglect

and/or abuse. Another emergency shelter care hearing was held and the Agency was

granted temporary custody of A.N, Case No. 2021 JCV01187, February 16, 2022.

{¶6} The trial court adopted the initial case plans for the mother and father

developed by the Agency. Because A.N. alleged some inappropriate sexual contact by Stark County, Case No. 2023 CA 00157 3

father, part of the Agency’s case plan for father required a sex perpetrator assessment

at Melymbrosia. The father’s case plan concentrated on three areas: the completion of

a sex offender risk assessment and treatment options if available; participation in his

daughter’s treatment, and engaging in his own mental health treatment. Because of

the concerns of inappropriate sexual contact, father was granted limited visitation with

A.N., and a no-contact order was put in place. However, later father was granted

telephone visitation with A.N. during the times she was in therapy, but failed to

communicate with A.N. during this time.

{¶7} The Agency continued with temporary custody of A.N. during five reviews

by the Family Court on March 4, 2022, August 5 2022, August 19, 2022, February 3,

2023, and August 1, 2023. Meanwhile, the Agency continued with efforts to facilitate a

reunification plan with the parents.

{¶8} Following a determination by the Agency that neither parent successfully

completed the case plan, no suitable and willing kinship caregivers were identified, and

that A.N. had been in its temporary custody since September, 2021, SCDJFS

determined that permanent custody to the Agency was in A.N.’s best interests.

{¶9} On August 6, 2023, SCDJFS filed a motion seeking permanent custody of

A.N.

{¶10} On October 6, 2023, the Guardian ad Litem (GAL) filed a final report

recommending that permanent custody be granted to the Agency.

{¶11} The motion for permanent custody came on for hearing on November 2,

2023. Stark County, Case No. 2023 CA 00157 4

{¶12} Present at the hearing were both biological parents accompanied by their

attorneys. Mother stipulated to permanent custody to SCDJFS. The trial court, after

determining that the mother’s stipulation was voluntary and knowing, entered it into the

record as Findings of Fact Nos. 8-13. The father requested an evidentiary hearing. The

Agency presented evidence in two phases. First, on whether or not A.N. could be placed

with either parent within the foreseeable future and second, whether it is in the best

interests of A.N. for SCDJFS to be granted permanent custody.

{¶13} The caseworker testified on behalf of the Agency. She testified that father

has not visited with A.N. since September, 2021. She testified that a no-contact order

was originally enacted due to the sexual abuse allegations, but the order was later

modified to allow father to have contact with A.N. if he participated in her therapy, but

that father never even asked to contact A.N.

{¶14} The caseworker testified that father completed a sex offender risk

assessment, and the evaluator recommended “extreme caution” in allowing him to have

contact with any children and a long-term parenting program. The evaluator determined

that father was not a good candidate for sex offender treatment due to his general

dishonesty.

{¶15} The caseworker testified that while father did participate and attend some

individual counseling sessions, he still lacked insight into the reasons surrounding the

removal of A.N. and was unwilling to participate in some truth verification testing. Given

that A.N. is cognitively delayed with several needs, father’s behavior was of particular

concern in that he could not take care of her special needs. Stark County, Case No. 2023 CA 00157 5

{¶16} With regard to A.N.’s best interests, the caseworker testified that A.N. is in

a “purchased care home” and is diagnosed with an adjustment disorder due to some

trauma that she experienced. She also has a diagnosis of chromosome abnormality and

has cognitive delays. She is currently functioning at the level of a four-to six-year old.

{¶17} There are no known appropriate relatives to care for her and the father

cannot provide A.N. with the structure and home environment that she needs. Indeed,

in 2019, A.N. was in the custody of the Agency and subsequently returned to father but

removed again by the Agency when father could not meet her needs.

{¶18} The caseworker testified that the Agency had extended its temporary

custody of A.N. two times and that no further extensions remained.

{¶19} Father presented no evidence, and the court took the matter under

advisement.

{¶20} On November 3, 2023, the trial court granted permanent custody of A.N. to

SCDJFS and terminated the parents’ parental rights and responsibilities. It entered its

findings of fact and conclusions of law consisting of nine pages. Specifically the trial

court found that, despite reasonable efforts by SCDJFS, A.N. could not and should not

be placed with Father within a reasonable amount of time; that Father had failed to

remedy the problems leading to A.N.’s removal, A.N. had been in the temporary custody

of the Agency for a period greater than 12 of the past 22 months, and the grant of

permanent custody was in A.N.’s best interests. Judgment Entry, Findings of Fact and

Conclusions of Law, November 3, 2023.

{¶21} Father timely appealed arguing two assignments of error: Stark County, Case No. 2023 CA 00157 6

{¶22} I. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING

EVIDENCE THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶23} II. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILD TO GRANT

PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

LAW AND ANALYSIS

I, II

{¶24} Because both assignments of error argue manifest weight of the evidence,

they will be addressed together.

Standard of Review

{¶25} 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); State v. Thompkins, 78 Ohio St.3d 380, 387, Stark County, Case No. 2023 CA 00157 7

678 N.E.2d 541. Because the fact finder is in the best position to weigh the credibility of

the witnesses and observe their demeanor, a reviewing court will always be 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, ¶ 21.

{¶26} An award of permanent custody must be based on clear and convincing

evidence. R.C. 2151.414(B)(1). 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). “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.” Id. at 477, 120

N.E.2d 118. If some competent, credible evidence going to all the essential elements of

the case supports the trial court’s judgment an appellate court must affirm the judgment

and not substitute its judgment for that of the trial court. C. E. Morris Co., v. Foley Constr.

Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

R.C. 2151.414(B) Determinations by Trial Court

{¶27} Pursuant to R.C. 2151.414(B), a trial court may grant permanent custody of

a child to a movant if the court determines at the hearing, by clear and convincing

evidence, that it is in the best interest of the child to grant permanent custody of the child

to the agency that filed the motion for permanent custody and that one of four

circumstances apply. In practice, a trial court will usually determine whether one of the

four circumstances outlined in R.C. 2151.414(B)(1)(a) through (d) is present before

proceeding to a determination regarding the best interest of the child. Stark County, Case No. 2023 CA 00157 8

{¶28} R.C. 2151.414(B) authorizes the court to grant permanent custody of the

child to the public or private agency if the court 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, 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 placement agencies for twelve or more months of a consecutive

twenty-two month period.

{¶29} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time, or should

not be placed with the parents.

{¶30} Here, the trial court made findings pursuant to R.C. 2151.414(B)(1)(a)

(Reasonable time) and R.C. 2151.414(B)(1)(d) (12 months in 22 months): “The Court

finds by clear and convincing evidence the child has been in the custody of SCDJFS for

a period greater than 12 of the last 22 months. No extensions of temporary custody are

possible. Judgment Entry Nov. 3, 2023 No. 4. “The court finds by clear and convincing

evidence that the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent within a reasonable time.”, Findings of Facts Nov.

3, 2023, No. 22.

{¶31} As long as one of these factors is present, then the first prong of the test is

satisfied. Stark County, Case No. 2023 CA 00157 9

{¶32} Appellant argues that he substantially complied with his case plan, disputing

the trial court’s finding of reasonable time. R.C. 2151.414 (B)(1)(a). The undisputed

record, however, belies that claim. Appellant’s case plan revolved around three goals –

treatment because of sexual abuse allegations, participation with A.N. during therapy

and treatment for his own mental health. The caseworker testified that, at best, Father

completed a sex offender risk assessment. The evaluator recommended “extreme

caution” in allowing him to interact with children and A.N. Because of his perceived

“general dishonesty” he was not a good candidate for sex offender treatment. Father

did not attempt to comply with the case plan with regard to A.N.’s therapy. The

caseworker testified that he was given authorization to call A.N. during her therapy, and

he didn’t even ask to contact her or participate in any way with her treatment. So, too,

Appellant made no effort to gain insight into his own mental health needs.

{¶33} While Appellant disputes the finding that A.N. cannot be placed with him

within a reasonable time, he does not dispute the fact that A.N. was in the temporary

custody of the Agency for over twelve months. No court shall grant an agency more than

two extension of temporary custody pursuant to R.C. 2151.415(D)(4). A.N. was in the

temporary custody of SCDJFS in excess of twelve months of a consecutive twenty-two-

month period, R.C. 2151.414(B)(1)(d). This Court has adopted the position that proof of

temporary custody with an agency for twelve or more months of a consecutive twenty-

two-month period alone is sufficient to award permanent custody. In re. D.H., 5th Dist.,

Licking No. 2022 CA 00025, 2022-Ohio-4495, ¶ 59. Therefore, a finding that grounds

existed for permanent custody cannot be against the manifest weight of the evidence.

Matter of L.G., 5th Dist., Stark No. 2020-CA-00139, 2021-Ohio-743, ¶ 36. Stark County, Case No. 2023 CA 00157 10

Best Interest Determination by Trial Court

{¶34} In determining the best interest of the child at the permanent custody

hearing, the trial court must consider all relevant factors, including but not limited to the

following:

{¶35} (a) 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; (b) the wishes of the child as expressed directly by the

child or through the guardian’s ad litem, with due regard for the maturity of the child; (c)

the custodial history of the child; (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; and (e) whether any of the factors in division (E)(7) to (11) of R. C.

2151.414 apply in relation to the parents and child. R.C. 2151.414(D).

{¶36} 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 that court’s determination will have on the lives of the parties concerned.” In re:

E.H., 5th Dist., Stark No. 2022CA00007, 2022-Ohio-1682, ¶ 101 quoting In re: Manzy

Children, 5th Dist., No. 2000CA00244, 2000 WL 170073 (Nov. 13, 2000) citing In re:

Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist., 1994).

{¶37} Here, the trial court found that it is in A.N.’s best interests that SCDJFS be

awarded permanent custody and thus eligible for a permanent adoptive home.

{¶38} We find there was competent, credible evidence to support the trial court’s

decision and it is not against the manifest weight of the evidence. Stark County, Case No. 2023 CA 00157 11

{¶39} The trial court heard the testimony of the case worker assigned to A.N. case

and read the final report of the GAL. It found that A. N. was twelve years old at the time

of the hearing and in the same foster home since September, 2021. A. N. has cognitive

delays, an adjustment disorder due to trauma, and a chromosome abnormality. She is

functioning at the ages of four to six. A.N. requires a lot of support and assistance, cries

easily and is in need of a structured home and setting. Finding of Fact: Best Interests,

Nos. 2-3. A. N. had no bond with Father. Finding of Fact: Best Interest, No. 7.

{¶40} The trial court further made a finding that a paternal aunt in Florida was

considered for placement of A.N. but was rejected due to substance abuse concerns and

that another relative was being explored.

{¶41} Father argues that SCDJFS did not meet its burden of proving that an

award of permanent custody to the Agency is in A.N.’s best interest, again arguing that

he substantially complied with the case plan by completing a sexual risk assessment and

that he was never given an opportunity to visit A.N. outside of therapy sessions.

However, the evidence demonstrates that any detriment which may occur by severing

any bond is outweighed by the benefits of permanency for A.N.

{¶42} The clear and convincing evidence here supports the trial court’s finding

that A.N.’s best interests are served by awarding SCDJFS permanent custody thus

making her eligible for a permanent adoptive home that can serve her special needs.

CONCLUSION

{¶43} This Court finds that the trial court carefully weighed the evidence and found

by clear and convincing evidence that A.N. cannot be placed with either parent within a Stark County, Case No. 2023 CA 00157 12

reasonable time, A.N. has been in the custody of SCDJFS since September, 2021 and

that permanent custody of A.N. to SCDJFS is in her best interests.

{¶44} Father-Appellant’s Assignments of Error are overruled.

{¶45} The judgment of the Court of Common Pleas, Juvenile Division, Stark

County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

King, J., concur.

JWW/kt 0209