In re B.E.S.

2011 Ohio 6746

Opinion

[Cite as In re B.E.S., 2011-Ohio-6746.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. B.E.S. (DOB 06/06/06) : Hon. Sheila G. Farmer, J. A.E. (DOB 11/06/08) : Hon. Patricia A. Delaney, J. R.E.S. (DOB 12/04/09) : : Case No. 2011CA00195 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2010JCV00622

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 27, 2011

APPEARANCES:

For Appellant For Appellee

AARON KOVALCHIK LISA A. LOUY 116 Cleveland Avenue, NW 221 Third Street, SE Suite 808 Canton, OH 44702 Canton, OH 44702

Farmer, J. Stark County, Case No. 2011CA00195 2

{¶1} On May 3, 2011, appellee, the Stark County Department of Job and

Family Services, filed a complaint for permanent custody of B.E.S born June 6, 2006,

A.E. born November 6, 2008, and R.E.S born December 4, 2009. Mother of the

children is Charley Eakle; father is appellant, Donald Sanders, II. The children had

been adjudicated abused and placed in appellee's temporary custody on August 16,

2010. A hearing was held on August 3, 2011. By judgment entry filed August 8, 2011,

the trial court granted permanent custody of the children to appellee. Findings of fact

and conclusions of law were filed same date. A nunc pro tunc judgment entry to correct

a misspelling was filed on August 16, 2011.

{¶2} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶3} "THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE."

II

{¶4} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE."

I, II Stark County, Case No. 2011CA00195 3

{¶5} Appellant claims the trial court’s findings that the children could not be

placed with him in a reasonable time and the best interests of the children would be

best served by granting permanent custody to appellee were against the manifest

weight and sufficiency of the evidence. We disagree.

{¶6} 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 v. Jeffries (February 10, 1982), Stark App. No. CA-5758. 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 (1978), 54 Ohio St.2d 279.

{¶7} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part as follows:

{¶8} "(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 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: Stark County, Case No. 2011CA00195 4

{¶9} "(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.

{¶10} "(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;

{¶11} "(16) Any other factor the court considers relevant."

{¶12} R.C. 2151.414(B) enables the court to grant permanent custody if the

court determines by clear and convincing evidence that it is in the best interest of the

child. 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 (1954), 161 Ohio St. 469, paragraph three of the syllabus. See also,

In re Adoption of Holcomb (1985), 18 Ohio St.3d 361. "Where the degree of proof

required to sustain an issue must be clear and convincing, a reviewing court will Stark County, Case No. 2011CA00195 5

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.

{¶13} R.C. 2151.414(D) sets out the factors relevant to determining the best

interests of the child. Said section states relevant factors include, but are not limited to,

the following:

{¶14} "(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;

{¶15} "(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;

{¶16} "(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***;

{¶17} "(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;

{¶18} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

{¶19} In its findings filed August 8, 2011 as to whether the children could be

placed with appellant within a reasonable time, the trial court found the following: Stark County, Case No. 2011CA00195 6

{¶20} "1. Case worker Stacy Senff testified that the children in question had

been in the agency's emergency custody since June 7, 2010, and in the agency's

temporary custody since August 16, 2010.

{¶21} "2. ***Ms. Senff testified that Father has completed an evaluation at Quest

and Northeast Behavioral Health. However, Father recently tested positive for cocaine

in April 2011. Father is not close to completing a 52 week anger management course at

Melymbrosia, and has not done Goodwill Parenting or found stable housing and

employment. Ms. Senff testified that Father admitted he could not care for children.

{¶22} "3. Dr. Amy Thomas testified that Father has drug issues and anger

management issues that are unresolved.

{¶23} "4. Harry Lowers, a Quest Counselor, testified to Father's involvement in a

relapse program.

{¶24} "5. Ms. Sandra Fronimo testified Mr. Sanders is not close to completing

the Voyager Anger Management program.

{¶25} "6. Ms. Seneff [sic] testified that Mother and Father failed to support,

communicate or visit with their children.

{¶26} "7. The agency has made reasonable efforts in an attempt to remediate

the concerns which were the cause of the children's original removal. The parties failed

continuously and repeatedly to substantially remedy the conditions which were the

bases for the children's removal from the family home."

{¶27} Appellant completed his Quest evaluation and started the Voyager

program (T. at 12, 68); however, appellant has not bonded with the children because of

a no-contact order in place. T. at 6, 7, 20. Appellant has not established stable Stark County, Case No. 2011CA00195 7

independent living, although it was conceded that this issue was not the linchpin of the

trial court's determination. T. at 14, 23-24. It was the trial court's opinion that appellant

was unable to care for three small children, one with periventricular leukomalacia and

cerebral palsy, and one who was physically abused and greatly traumatized by

witnessing domestic violence and the premature birth of a sibling into a toilet. T. at 15-

16, 41, 81. Appellant admitted to Ms. Senff that he was concerned about safely caring

for the children. T. at 16.

{¶28} Dr. Aimee Thomas, who completed a parent evaluation on appellant,

opined he demonstrated a lack of attentiveness to the needs of the children and a lack

of attachment to the children. T. at 46-47. Appellant "reported anger management

problems were a source of concern, as he may not have the patience to deal with the

special needs of both of these children." T. at 49. Dr. Thomas had little confidence in

appellant's ability to make changes given the fact that he lacks "insight into concerns

with his anger management. His minimalization of substance abuse issues. As well as

the clear special needs of these children." T. at 50. Dr. Thomas explained the children

needed a parent "who's hyper vigilant, and willing to insure that these children never

ever experience another traumatic incident, such as physical abuse, sexual abuse, or

exposure to domestic violence." Id. Dr. Thomas opined it was questionable whether

appellant would ever be able to do that. Id.

{¶29} Although each parent should be viewed separately, it is necessary to view

the entire pattern of abuse as the parents "have an on again off again relationship." T.

at 25, 50. Because of the parents' joint inabilities involving drug abuse, domestic

violence, and lack of concern for the children by having a known sex offender in their Stark County, Case No. 2011CA00195 8

home, it is clear they jointly and separately are unable to provide for the needs of the

three small children, all under the age of five. T. at 8-11, 46.

{¶30} Appellee was informally involved with the family six months prior to the

Juv.R. 6 intervention in June of 2010. T. at 4-5. Services were offered to mother, but

she was unsuccessful. T. at 8-11. Appellant cooperated, but was defensive to

treatment, and admitted he lacked the patience and ability to safely care for the

children. T. at 16, 45, 49, 52.

{¶31} Upon review, we find the trial court did not err in finding that the children

could not be placed with appellant within a reasonable time.

{¶32} As for best interests, the trial court found the following:

{¶33} "6. The Court finds that there is minimal bond between Mother and Father

and these children.

{¶34} "7. The Court finds that Mother and Father have completely failed to

support or visit with their children as he (sic) have never contacted SCJFS to inquire

into the well-being of their children.

{¶35} "8. The Court finds that it is the agency's testimony that a grant of

permanent custody would be in the best interest of the children of this case as the

parents are either unable or unwilling to provide a safe and stable environment for the

children."

{¶36} Unfortunately, it is clear that the youngest child will need extensive care

due to the fact that the child suffered a traumatic head injury at birth, was born drug

positive, has been diagnosed with cerebral palsy, and has sustained multiple broken

bones from physical abuse. T. at 81. As the cited testimony indicates, neither parent is Stark County, Case No. 2011CA00195 9

equipped to meet the child's special needs. The older children act out, and one child is

severely traumatized by the sexual and physical abuse which occurred in the home and

by witnessing the birth of a sibling into the toilet. T. at 79-80.

{¶37} The children are in a foster-to-adopt home that has the ability to care and

manage the children. T. at 84-85. The children have bonded with everyone in the

household. T. at 85. No bond exists between the children and appellant and mother.

T. at 86.

{¶38} Upon review, we find the trial court did not err in finding the best interests

of the children were best served by granting permanent custody to appellee.

{¶39} Based upon the evidence contained in the record, we find the trial court

did not err in granting permanent custody of the children to appellee.

{¶40} Assignments of Error I and II are denied.

{¶41} The judgment of the Court of Common Pleas of Stark County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

s/ Sheila G. Farmer______________

_s/ W. Scott Gwin_______________

s/ Patricia A. Delaney____________

JUDGES [Cite as In re B.E.S., 2011-Ohio-6746.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : B.E.S. (DOB 06/06/06) : A.E. (DOB 11/06/08) : R.E.S. (DOB 12/04/09) : JUDGMENT ENTRY : : : : CASE NO. 2011CA00195

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Juvenile Division is

affirmed. Costs to appellant.

JUDGES