In re A.S.

2019 Ohio 342

• Court: Ohio Court of Appeals
• Decided: February 1, 2019
• Docket: 18 CA 007
• Status: Published

Opinion

[Cite as In re A.S., 2019-Ohio-342.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. IN THE MATTER OF: Hon. Craig R. Baldwin, J.

A.S. Case No. 18 CA 007

OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 14N199

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 1, 2019

APPEARANCES:

For Appellee HCDJFS For Appellant Mother

ROBERT K. HENDRIX DAVID M. HUNTER ASSISTANT PROSECUTOR 244 West Main Street 164 East Jackson Street Loudonville, Ohio 44842 Millersburg, Ohio 44654 Holmes County, Case No. 18 CA 007 2

Wise, P. J.

{¶1} Appellant-Mother Opal P. appeals the decision of the Holmes County Court

of Common Pleas, Juvenile Division, which granted permanent custody of her minor son,

A.S., to Appellee Holmes County Department of Job and Family Services (“HCDJFS”).

The relevant procedural facts leading to this appeal are as follows.

{¶2} Appellant is the mother of the minor child A.S., born in 2013. This Court has

previously affirmed the permanent custody decisions from Holmes County involving two

of appellant’s other children. See Matter of I.S., 5th Dist. Holmes No. 17CA019, 2018-

Ohio-615; Matter of B.S., 5th Dist. Holmes No. 17CA020, 2018-Ohio-616. The present

opinion will focus upon A.S.’s case.

{¶3} On December 8, 2014, HCDJFS filed a complaint alleging abuse, neglect,

and dependency concerning A.S., I.S., and B.S. in the Holmes County Court of Common

Pleas, Juvenile Division. Among the concerns at that time were that appellant indicated

intellectual limitations, lacked parenting skills, and was in a relationship with a man who

had a domestic violence and sex offender history.

{¶4} HCDJFS thereupon obtained temporary custody of A.S. On or about March

3, 2015, appellant appeared in court and stipulated to a neglect finding.

{¶5} On September 15, 2016, HCDJFS filed a motion for permanent custody of

A.S. (as well as siblings I.S. and B.S. under separate case numbers), citing R.C.

2151.413(D)(1).

{¶6} However, on January 30, 2017, more than two years after the initiating

complaint, custody of A.S. was returned to appellant, who by that time had moved to

Coshocton County, Ohio. Holmes County, Case No. 18 CA 007 3

{¶7} But on or about April 12, 2017, HCDJFS again obtained temporary custody

of A.S. after a medical report indicated he had suffered multiple bruises on his face and

body.1

{¶8} On April 21, 2017, the agency again moved for permanent custody, and the

matter proceeded to evidentiary hearings on May 30, May 31, and June 7, 2018. The

court heard testimony from thirteen witnesses, including appellant. After taking the matter

under advisement, the trial court on August 23, 2018 issued a decision, along with a

separate twenty-six page analysis, granting permanent custody of A.S. to HCDJFS.

{¶9} On August 27, 2018, appellant-mother filed a notice of appeal. She herein

raises the following sole Assignment of Error:

{¶10} “I. THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY

OF A.S. TO THE HOLMES COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES[,] AS THE TRIAL COURT’S BEST INTEREST FINDING IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

I.

{¶11} In her sole Assignment of Error, appellant-mother contends that the trial

court's granting of permanent custody of A.S. to the agency was against the manifest

weight of the evidence, particularly as the court’s “best interest” finding. We disagree.

1 In regard to this troubling development in this case, we note appellant later vaguely admitted that she “could have slapped [A.S.].” See Tr. at 141. Despite the length of time appellant had been the beneficiary of case plan reunification services, when she was pressed about what had caused the injuries to A.S., appellant merely “giggled” and showed the caseworker some prescription pain medication, apparently blaming her lack of recollection on the drug. See Tr. at 142 (testimony of Susan Shernit of HCDJFS). Holmes County, Case No. 18 CA 007 4

{¶12} As an appellate court, we are not the trier of fact; instead, our role is to

determine whether there is relevant, competent, and credible evidence upon which the

factfinder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768,

936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark

No. CA5758, 1982 WL 2911. An appellate court, in reviewing a civil manifest weight claim,

considers whether the finder of fact, in resolving conflicts in the evidence, clearly lost his

or her way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. See Hunter v. Green, 5th Dist. Coshocton No. 12–CA–

2, 2012–Ohio–5801, ¶ 25, citing Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d

517, 2012–Ohio–2179. It is well-established that the trial court in a bench trial is in the

best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th Dist.

Summit No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St.2d

230, 227 N.E.2d 212. Furthermore, the trial court, as the fact finder, is free to believe all,

part, or none of the testimony of each witness. See State v. Caldwell (1992), 79 Ohio

App.3d 667, 679, 607 N.E.2d 1096.

R.C. 2151.414(B)(1) Requirements

{¶13} R.C. 2151.414(B)(1) reads in pertinent part as follows:

Except as provided in division (B)(2) of this section, the court may

grant permanent custody of a child to a movant if the court determines at

the hearing held pursuant to division (A) of this section, 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 any of the following apply: Holmes County, Case No. 18 CA 007 5

(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, *** 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 * * *.

{¶14} We note the trial court in the case sub judice relied on both R.C.

2151.414(B)(1)(b), supra, and R.C. 2151.414(B)(1)(d), supra. See Judgment Entry,

August 23, 2018, at 2. Appellant herein does not dispute the applicability of “twelve of

twenty-two” rule in (B)(1)(d) to her case. See Appellant’s Brief at 12. It is well-established

that (B)(1)(d) is independently sufficient to use as a basis to grant an agency's motion for

permanent custody. See In re M.R., 3rd Dist. Defiance No. 4–12–18, 2013–Ohio–1302,

¶ 80. Similarly, (B)(1)(b) (abandonment) is independently sufficient to use as a basis to Holmes County, Case No. 18 CA 007 6

grant a motion for permanent custody. See In re N.W., 10th Dist. Franklin No. 07AP–590,

2008–Ohio–297, ¶ 10; In re Anthony/Bentley Children, 5th Dist. Stark No. 2001CA00185,

2001 WL 1769937.2

{¶15} Under these circumstances, we are compelled, based on R.C.

2151.414(B)(1)(d), to directly proceed to an analysis of the best interest issue. See, e.g.,

In re Walton/Fortson Children, 5th Dist. Stark No. 2007CA00200, 2007–Ohio–5819, ¶ 14.

R.C. 2151.414(D)(1) Best Interest Consideration

{¶16} In determining the best interest of a child for purposes of permanent custody

disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D)(1) and “all relevant factors.” The specified factors are as follows:

(a) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or

through the child's guardian ad litem, with due regard for the maturity of the

child;

(c) The custodial history of the child, including whether the child has

been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period, or the child has been in the

temporary custody of one or more public children services agencies or

2 In this instance, the court’s abandonment finding went to A.S.’s father Dustin W. only. He has had limited participation in the present case, and he has not appealed the permanent custody determination. Holmes County, Case No. 18 CA 007 7

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. * * *

{¶17} During the permanent custody trial, HCDJFS called as its second witness

Dana Price, M.S.W., L.S.W., who has provided counseling services for A.S. at Family Life

Counseling. Price recalled that A.S. has been diagnosed with PTSD and adjustment

disorder, but she testified that the child has “shown great progress” in these areas since

she began working with him in October 2017. Tr. at 31. She opined that A.S. was bonded

with his foster family, and stated that he “shows comfortability” in approaching members

of his foster family and in having access to different areas of the foster home. Tr. at 37.

See R.C. 2151.414(D)(1)(a). The child shows regression and aggression when there is a

change in his environment. Tr. at 43. She concluded: “I feel he has a very, very strong

connection with [the foster family].” Tr. at 42. He “just feels very comfortable being who

his [sic] is at this point.” Tr. at 45.

{¶18} HCDJFS also called Lisa Hochstetler, a family service specialist at Kno-Ho-

Co Headstart. She indicated she has no concerns with the foster parents, C.M. and R.M.,

and/or their relationship with A.S. Tr. at 62. She also noted inter alia that both the foster Holmes County, Case No. 18 CA 007 8

mother and the foster father participate in the school’s “parent committee” activities. Tr.

at 58.

{¶19} Both current foster parents testified. They live in a rural area of Holmes

County and have two daughters of their own. C M., the foster mother, expressed an intent

to adopt A.S. if possible. Tr. at 94. R.M., the foster father, recalled that A.S. had

“exploded” with happiness shortly after being placed with them again in April 2017. Tr. at

105.

{¶20} Joseph Messner, a licensed mental health counselor at Anazao Community

Partners, testified that appellant is dealing with a depressive disorder, which he described

as more “chemical” (i.e., not environmental) and long term. Tr. at 67-68. He had observed

appellant’s improvement in coping with this issue since April 2016. Nonetheless, even

though appellant has some support persons in her life, Messner agreed that “it would be

difficult for Opal to parent [A.S.] on a long-term, day-to-day basis.” Tr. at 192.

{¶21} Psychologist Dr. Marianne Bowden testified that she diagnosed appellant

in 2015 with major depressive disorder, recurrent, moderate; borderline intellectual

functioning; and narcissistic personality disorder. As of 2018, the only change had been

supplanting the narcissistic personality diagnosis with personality disorder, not otherwise

specified, with strong narcissistic features. Otherwise, the only changes were that

appellant had “reduced some of the symptoms.” Tr. at 115. Appellant’s overall IQ per her

2018 evaluation is 75, very similar to her 2015 score. Id. at 116. Dr. Bowden further

opined:

{¶22} “But I think the intellectual level, uh, is what really hinders her. Uh, she’s not

going to be able to learn significantly more information than she already does.” Tr. at 123. Holmes County, Case No. 18 CA 007 9

{¶23} Susan Shernit, the ongoing caseworker from HCDJFS, described for the

court inter alia the circumstances of the agency’s April 2017 resumption of custody,

further noting that since that time appellant had not asked about increased visitation time

but had requested that some of A.S.’s clothing items provided by appellant be returned

to her “once his foster parents adopt him.” Tr. at 142-143. Shernit also observed that

appellant would bring activities and crafts for A.S. during visits, but “generally by the end

of the visit they are not interacting.” Tr. at 152.3 Shernit also summarized: “Uh, I believe

that [A.S.] and Opal do have a bond, and, uh, I know that they love each other, uh, but, I

also observe him to be, uh, very bonded to his foster family, uh, and to love them as well.”

Tr. at 153. Shernit did agree on cross-examination that appellant’s residence in

Coshocton, where she had lived since January 2018, was stable and had available space

for A.S. Tr. at 159. However, other evidence was adduced that appellant had had eight

residences in four years. Tr. at 148.

{¶24} In regard to the wishes of the children (R.C. 2151.414(D)(1)(b)), the trial

court noted that the first GAL report, issued on December 6, 2016, actually recommended

against permanent custody of A.S. to the agency, indicating that the weekend visits

between appellant and A.S. had not resulted in any reported problems. Analysis Entry at

7. The GAL then filed a supplemental report on May 8, 2017, shortly after agency custody

was resumed following the discovery of bruising on A.S. Id. Because the GAL required

more time to review the report of possible abuse and the letter to the trial court from Dustin

W., the child’s father, expressing an intent to obtain custody, no recommendation as to

3 Nonetheless, appellant later called Nakesha Henderson of HCDJFS, who described A.S. as appearing to be “well-adjusted and comfortable” during visits, with no inappropriate behavior by appellant. See Tr. at 175. Holmes County, Case No. 18 CA 007 10

permanent custody was provided at that time. Id. The GAL then issued a report on May

23, 2018, and a follow-up report following the permanent custody trial, both of which

recommended that permanent custody would be in the best interest of A.S. Id. at 8-9.

{¶25} In this instance, for purposes of R.C. 2151.414(D)(1)(c), A.S. had

undisputedly been in agency custody and foster care placement long enough to meet the

“12 of 22” rule.

{¶26} In addition, although appellant had been fairly consistent on her parenting

skills training, concerns remained that she would not translate them into actual parenting

skills. See R.C. 2151.414(D)(1)(d). As the trial court aptly noted, although appellant may

have followed her case plan obligations in this respect, “if she cannot internalize the

concepts she was exposed to and put them into proactive, her ability to competently and

safely parent A.S. in the future will be no greater than it was when he was removed from

her home in December 2014.” Analysis Entry at 13.

{¶27} We also note that appellant, as an alternative to permanent custody, urged

that A.S. be placed with her aunt, Sarah B., who has two-bedroom trailer with acreage in

Coshocton County. However, the record indicates limited contact between Sarah and

A.S. during the pendency of this case, and Sarah only became involved in the legal

proceedings about one week prior to the permanent custody trial’s commencement, and

this was at appellant’s request. See Tr. at 267-271.

{¶28} In regard to R.C. 2151.414(D)(1)(e), we find the record shows that the

cross-reference to 2151.414(E)(11) would apply in this matter, namely that appellant “***

has had parental rights involuntarily terminated with respect to a sibling of the child

pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under Holmes County, Case No. 18 CA 007 11

an existing or former law of this state, any other state, or the United States that is

substantially equivalent to those sections, and [appellant] has failed to provide clear and

convincing evidence to prove that, notwithstanding the prior termination, the parent can

provide a legally secure permanent placement and adequate care for the health, welfare,

and safety of the child.”

{¶29} Finally, we recognize that the children services authorities in neighboring

Coshocton County apparently have come to differing conclusions regarding appellant’s

parenting capabilities as to M.P., appellant’s youngest child, age two. See Tr. at 280-285

(testimony of Jennifer Selders of CCDJFS). In that case, Coshocton County caseworkers

did not pursue custody of M.P. following their own investigation, and instead opened a

voluntary case plan with appellant. Id. We note Dr. Bowden, when asked earlier in the

trial to respond to Coshocton’s decision to keep M.P. with appellant, had stated that such

a result “actually * * * would raise concerns in my mind as to what’s going on in Coshocton

County.” Tr. at 128. Ultimately, the fact that a different county’s child protective services

unit has presently taken an alternate approach with appellant in another case involving

another child, while somewhat unusual, does not sway us from our conclusions in the

present appeal infra.

{¶30} It is well-established that “[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, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, quoting In re Awkal

(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. In the case sub judice, upon review of Holmes County, Case No. 18 CA 007 12

the record and the findings and conclusions therein, we conclude the trial court's judgment

granting permanent custody of A.S. to the agency was made in the consideration of the

child's best interest and did not constitute an error or an abuse of discretion under the

circumstances presented.4

{¶31} Appellant's sole Assignment of Error is therefore overruled.

{¶32} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Holmes County, Ohio, is hereby affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

JWW/d 0111

4 The trial court conducted an additional analysis under R.C. 2151.413(D)(2) and 2151.414(B)(2), which we find unnecessary to address in the present appeal. Holmes County, Case No. 18 CA 007 13