In re B.C.

2023 Ohio 4842

• Court: Ohio Court of Appeals
• Decided: December 29, 2023
• Docket: 2023-CA-00022
• Status: Published

Opinion

[Cite as In re B.C., 2023-Ohio-4842.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J. B.C. Case No. 2023-CA-00022

OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No 2022-AB-0067

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 29, 2023

APPEARANCES:

For Appellee FCCPS For Appellant Father

R. KYLE WITT JAMES S. SWEENEY PROSECUTING ATTORNEY JAMES SWEENEY LAW, LLC GENYLYNN COSGROVE 285 South Liberty Street ASSISTANT PROSECUTOR Powell, Ohio 43065 239 West Main Street Suite 101 For Guardian ad Litem Lancaster, Ohio 43130 BRIAN HERZBERGER 2770 East Main Street, Suite 25 Columbus, Ohio 43209 Fairfield County, Case No. 2023-CA-00022 2

Wise, J.

{¶1} Appellant-Father M.K. appeals the decision of the Fairfield County Court of

Common Pleas, Juvenile Division, which granted permanent custody of his minor child to

Fairfield County Department of Job and Family Services.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts leading to this appeal are as follows:

{¶3} Appellant-Father M.K. and Mother J.C. are the biological parents of minor

child B.C. (DOB 4/9/2015).

{¶4} On April 21, 2022, Fairfield County Protective Services (Agency) was

granted temporary shelter custody of the minor child B.C. through a private filing in

Fairfield County Domestic Relations Court, and the case was transferred to Fairfield

County Juvenile Court.

{¶5} On August 17, 2022, an agreed adjudicatory and dispositional hearing was

held wherein B.C. was found to be a Dependent Minor and was placed in the Temporary

Custody of the Agency.

{¶6} On October 10, 2022, a case review was held by the trial court regarding

B.C. Appellant-Father did not attend.

{¶7} On December 15, 2022, a case review was held by the trial court. Appellant-

Father did not attend.

{¶8} On April 18, 2023, a case review was held by the trial court. Appellant-

{¶9} On April 18, 2023, the temporary custody of the minor child was extended. Fairfield County, Case No. 2023 CA 00022 3

{¶10} On March 21, 2023, FCCPS filed a motion requesting that the temporary

custody of B.C. be amended to an Order of Permanent Custody.

{¶11} On April 18, 2023, a pre-trial on the Motion for Permanent Custody was

held. Appellant-Father did not attend.

{¶12} On April 26, 2023, the oral hearing on the Motion for Permanent Custody

was held and neither parent was present. Both parents had active warrants for their arrest.

{¶13} Present at the hearing was Genylynn Cosgrove, Assistant Prosecuting

Attorney; Morgan Furness, Case Worker for FCCPS; Tom Gordon, Attorney for Mother;

Cedric Collins, Attorney for Father; Brian Herzberger, Guardian ad Litem; Sarah Rahter,

Attorney for B.C.

{¶14} At the hearing, the trial court heard testimony from the Caseworker Morgan

Furness.

{¶15} Caseworker Morgan Furness testified as to the Agency’s concerns for

Appellant-Father at the time of initial involvement, which included repeated arrests for

domestic violence and unstable housing. The Agency developed a case plan and made

efforts to assist Appellant-Father to remedy the problems that caused the child to be

removed from the home.

{¶16} As part of his case plan, Fairfield County Child Protective Services wanted

Appellant-Father to follow probation rules and protection orders, comply with AOD

assessment and follow recommendations, call and screen, complete batterers

intervention, have parenting time, and provide for the child's needs. As to the probation

rules and protection orders, Appellant-Father was released and encouraged to attend

batterers treatment. Fairfield County, Case No. 2023 CA 00022 4

{¶17} In August, 2022, Appellant-Father was discharged from Afrocentric

batterers intervention program for nonattendance. In October, 2022, he was enrolled in

Stop Inc. but did not complete the program. In March, 2023, Father was referred to

Natasha's House and missed many appointments. Caseworker Furness explained that

Appellant-Father would not be able to complete that referral until his warrant is taken care

of.

{¶18} The Agency indicated that Appellant-Father has violated his protection

orders, has been re-incarcerated for violations, and has ongoing charges which resulted

in the current outstanding warrant.

{¶19} As to the AOD assessment, Appellant-Father did comply with this aspect of

the case plan. Father was inconsistent with his visitation/parenting time and did not

comply with this part of his case plan. As to the needs of the minor child, Appellant-Father

did not obtain/maintain appropriate housing and has an active warrant out for his arrest.

Appellant-Father was not compliant with this part of the case plan.

{¶20} As to the minor child’s Mother, at the time of initial involvement the Agency’s

concerns included substance abuse. The Agency developed a case plan and extended

efforts to assist Mother to remedy the problems which caused the minor child to be

removed from the home. Mother agreed with the case plan and thought it was reasonable

when it was created.

{¶21} As part of her case plan, Mother was to call and screen as it related to her

sobriety. Mother started with the Lighthouse after her release from jail on August, 2022,

and she addressed her mental health while in Lighthouse. On February 22, 2023, Mother

tested positive for fentanyl while with Lighthouse. She was offered in-patient treatment by Fairfield County, Case No. 2023 CA 00022 5

Lighthouse, but declined and was then referred to a shelter. At the time of the permanent

custody hearing, she had an active warrant out for her arrest and was on probation. Her

current whereabouts were unknown.

{¶22} Mother was also to attend court hearings. Mother did attend hearings

virtually while at Lighthouse, but has since failed to have contact with FCCPS and did not

communicate with her attorney or appear at the permanent custody hearing.

{¶23} Mother was also to participate in parenting time. Mother did participate in

parenting time until February, 2023, although she was inconsistent, often cancelling,

arriving late or leaving early. Mother has had no contact with child since February, 2023.

{¶24} Mother was also to provide for B.C.’s needs as part of her case plan. Mother

does not have a job, housing, and is unsafe due to substance abuse, as she is currently

missing with a warrant out for her arrest.

{¶25} Following the presentation of all evidence and testimony to the court,

Counsel for B.C. and counsel for Appellant-Father questioned the Guardian ad Litem as

to his report.

{¶26} The Guardian ad Litem stated that his opinion had not changed with regard

to his final written report, and that he still supported the granting of permanent custody of

B.C. to Fairfield County Child Protective Services.

{¶27} The trial court found that neither Appellant-Father or Mother have

substantially completed their case plan services to remedy the Agency's initial concerns

which led to the minor child’s removal from the home despite reasonable case planning

and diligent efforts by Fairfield County Protective Services. Fairfield County, Case No. 2023 CA 00022 6

{¶28} The trial court found, inter alia, that Mother was convicted of Possession of

Drugs and Drug Paraphernalia on May 29, 2019, and was convicted of Possession of

Fentanyl on September 13, 2022. Appellant-Father was convicted of Unlawful Restraint

on May 21, 2021. Both Mother and Appellant-Father currently had active warrants for

their arrest. On the date of the permanent custody hearing, Mother's whereabouts were

unknown. Appellant-Father had a warrant and failed to appear in court.

{¶29} By Judgment Entry filed May 1, 2023, the trial court terminated the parental

rights of Appellant-Father and Mother and granted permanent custody of B.C. to Fairfield

County Department of Job and Family Services.

{¶30} Appellant now appeals, raising the following Assignment of Error:

ASSIGNMENT OF ERROR

{¶31} “I. THE JUVENILE COURT ERRED IN TERMINATING FATHER'S

PARENTAL RIGHTS AND GRANTING PERMANENT CUSTODY OF B.C. TO FCCPS.”

I.

{¶32} In his sole assignment of error, Appellant-Father argues that the trial court’s

decision to grant permanent custody of B.C. to the Agency was error. We disagree.

{¶33} 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.” Fairfield County, Case No. 2023 CA 00022 7

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).

{¶34} 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

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.

{¶35} 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.”

{¶36} Further, 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. Fairfield County, Case No. 2023 CA 00022 8

04CA10, 2004–Ohio–3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004–

Ohio–2040.

{¶37} Pursuant to R.C. §2151.414(B), 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 Fairfield County, Case No. 2023 CA 00022 9

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.

(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.

{¶38} Revised Code §2151.414(E) sets forth the factors a trial court must consider

in determining whether a child cannot or should not be placed with a parent within a

reasonable time. If the court finds, by clear and convincing evidence, the existence of any

one of the following factors, “the court shall enter a finding that the child cannot be placed

with [the] 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 Fairfield County, Case No. 2023 CA 00022 10

the parents for the purpose of changing parental conduct to allow them to

resume and maintain parental duties.

***

(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;

(12) The parent is incarcerated at the time of the filing of the motion

for permanent custody or the dispositional hearing of the child and will not

be available to care for the child for at least eighteen months after the filing

of the motion for permanent custody or the dispositional hearing.

(13) The parent is repeatedly incarcerated, and the repeated

incarceration prevents the parent from providing care for the child.

(14) The parent for any reason is unwilling to provide food, clothing,

shelter, and other basic necessities for the child or to prevent the child from

suffering physical, emotional, or sexual abuse or physical, emotional, or

mental neglect.

(16) Any other factor the court considers relevant.

{¶39} Upon review, the trial court's finding that B.C. could not be placed with

Appellant-Father within a reasonable period of time was not against the manifest weight

or sufficiency of the evidence. In concluding that the child cannot or should not be placed Fairfield County, Case No. 2023 CA 00022 11

with Appellant within a reasonable period of time, there was enough evidence for the trial

court to rely upon R.C. §2151.414(E)(1). Caseworker Furness testified that Appellant-

Father would not allow them access to his housing to permit them to make a determination

as to safety and appropriateness. (T. at 32). Appellant-Father was in and out of jail

throughout the pendency of this matter and was therefore unable to provide a safe,

permanent home for the child. (T. at 30, 32). Appellant-Father demonstrated a lack of

commitment by failing to provide financial support or a permanent home. (T. at 32).

Appellant-Father was not financial stable. Id. Appellant-Father failed to appear at the

permanent custody hearing or any of the review hearings. Appellant-Father failed to

attend the last two scheduled visitations with B.C. The Agency also expressed concerns

regarding Appellant-Father’s history of domestic violence and active arrest warrant. (T. at

39).

{¶40} Appellant did not complete his case plan or reduce the risks that led to the

involvement of the Agency in this case.

Best Interest

{¶41} Evidence was presented that B.C. has been in the custody of FCCPS since

April 21, 2022. She was placed in the Snider foster home from 4/21/2022 until 11/4/2022.

B.C. was then placed in the family kinship placement of Father's sister M.K. from

11/4/2022 until 2/22/2023, at which time M.K. advised FCCPS that she could no longer

care for the child. When that placement did not work out, B.C. asked to go back to the

Snider foster home.

{¶42} B.C. is bonded with her foster parents and all her needs are being met. She

has been able to do programs such as gymnastics and is bonded with brother E.C., who Fairfield County, Case No. 2023 CA 00022 12

is placed in the foster home with her, who she previously did not have much contact with.

Their bond has been deepening in foster care along with their relationships with the foster

parents own children.

{¶43} As to B.C. parents, the trial court found:

B.C. needs a safe and stable environment where her needs are met

on a consistent basis. B.C. cannot find legally secure permanent placement

with Mother at this time as she has failed to follow through with treatment

recommendations for AOD issues, has been incarcerated, has used illegal

substances recently, has failed to secure stable housing and employment.

Mother has a warrant out for her arrest and her location is unknown.

B.C. cannot find legally secure permanent placement with Father at

this time because he has been in and out of jail and currently has an active

warrant out for his arrest. B.C. has lived with her Father during which there

was domestic violence occurring in his home.

{¶44} (May 1, 2023, Judgment Entry at 12)

{¶45} Appellant-Father's GPS has violated protection orders, failed to address his

domestic violence issues through batterers’ treatment, and failed to allow FCCPS to view

his housing. Appellant-Father also has an active warrant on domestic violence matters

which will result in his incarceration. Appellant-Father has failed to visit B.C. consistently

throughout the case. B.C. needs a safe and stable environment where her needs are met

on a consistent basis. Mother and Father at this time provide absolutely no stability for

the child and cannot provide for any of the child's needs, as Mother also has an active

arrest warrant and her location is unknown. Fairfield County, Case No. 2023 CA 00022 13

{¶46} For the aforementioned reasons, there was more than enough evidence for

the trial court to conclude that B.C. could not and should not be replaced with Appellant-

Father within a reasonable amount of time.

{¶47} Appellant-Father’s sole Assignment of Error is overruled.

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

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

By: Wise, J.

Gwin, P. J., and

King, J., concur.

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