In re B.M.

2018 Ohio 3780

Opinion

[Cite as In re B.M., 2018-Ohio-3780.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. John W. Wise, P.J. B. M. (DOB 10/15/2016) : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. A Minor Child : : : Case No. 2018CA00053 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2016JCV00928

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 19, 2018

APPEARANCES:

For Appellant-Mother For Appellee- Stark County DJFS

MARY G. WARLOP JAMES PHILLIPS 116 Cleveland Avenue N. W. Stark County DJFS Suite 500 110 Central Plaza South Canton, OH 44702 Suite 400 Canton, OH 44702 Stark County, Case No. 2018CA00053 2

Wise, Earle, J.

{¶ 1} Appellant-Mother D.U. appeals the decision of the Stark County Court of

Common Pleas, Juvenile Division, which granted permanent custody of her son, B.M., to

Appellee Stark County Job and Family Services (“SCJFS”).

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant is the mother of B.M, born October 15, 2016. J.M is B.M's legal

father, having signed B.M's birth certificate. As this case progressed, A.B was alleged to

be B.M's biological father.

{¶ 3} On October 18, 2016, SCJFS filed a complaint alleging dependency and or

neglect of B.M. An emergency shelter care hearing was held on October 20, 2016 after

which the trial court found probable cause for SCJFS involvement and that SCJFS had

made reasonable efforts to prevent the need to remove B.M from appellant's custody.

The trial court awarded emergency temporary custody of B.M to SCJFS and reaffirmed

pre-adjudicatory orders for appellant to engage in various services.

{¶ 4} At a hearing on November 9, 2016, the trial court found B.M dependent,

awarded temporary custody to the SCJFS. The trial court further approved and adopted

appellant's case plan, which required her to complete a parenting evaluation at Northeast

Ohio Behavioral Health and follow any recommendations.

{¶ 5} Appellant completed the parenting evaluation which recommended she

attend Goodwill Parenting classes, receive comprehensive mental health treatment

including medication and counseling, and to secure safe, independent housing.

{¶ 6} The trial court reviewed the matter on April 11, 2017 and approved and

adopted the case plan review packet, found compelling reasons existed to preclude filing Stark County, Case No. 2018CA00053 3

for permanent custody, found SCJFS had made reasonable efforts to finalize the

permanency planning in effect, and maintained the status quo.

{¶ 7} On August 29, 2017, however, SCJFS filed a motion seeking permanent

custody of B.M. The agency alleged that B.M could not be placed with appellant within a

reasonable amount of time as appellant had demonstrated a lack of commitment toward

B.M, and that permanent custody was in B.M.'s best interest. Trial was set for November

9, 2017.

{¶ 8} On September 15, 2017, the trial court again reviewed the matter. The court

found no compelling reason existed to preclude the filing for permanent custody, and that

SCJFS had made reasonable efforts to finalize the permanency planning in effect.

{¶ 9} On November 8, 2017, appellant filed a motion seeking to extend temporary

custody of B.M to SCJFS and further, named A.B as a new possible biological father for

B.M. This revelation required the continuance of the permanent custody trial until A.B

could be served.

{¶ 10} On November 28, 2017, SCJFS filed an amended motion for permanent

custody naming A.B as a possible father. The trial was continued until March 13, 2018.

An attempt was made to determine if A.B was B.M's father, however, A.B failed to

cooperate with paternity testing.

{¶ 11} On March 13, 2018, the trial court heard evidence on SCJFS’s motion for

permanent custody, and on March 28, 2018, the trial court heard evidence regarding best

interests of B.M.

{¶ 12} SCJFS presented evidence regarding B.M and appellant. According to Dr.

Aimee Thomas, who completed appellant’s parenting evaluation, appellant’s I.Q is 57. Stark County, Case No. 2018CA00053 4

This translates to appellant functioning verbally at the level of a 12 year-old, and non-

verbally at the level of a 5 year-old. Non-verbal skills include an individual’s ability to learn,

internalize, and apply information and well as the ability to exercise good judgment.

Appellant would require oversight and assistance in order to raise B.M. Appellant had

previously been diagnosed bi-polar and exhibited mood deregulation. Dr. Thomas had

completed two prior evaluations of appellant and the results of the instant evaluation were

consistent with the first two.

{¶ 13} Despite being aided due to her limitations, appellant completed only 5 of 12

goals at Goodwill Parenting classes. Appellant was unable to retain and apply what she

learned during her classes during visitations with B.M. Providers at Goodwill had

concerns about appellant’s ability to parent independently and did not recommend

reunification with B.M, nor even unsupervised visitation.

{¶ 14} Appellant failed to follow through with comprehensive mental health

treatment, had multiple residences throughout the pendency of the case, and her home

at the time of trial was unsafe for B.M. She had a new boyfriend with a criminal record. At

the start of the case, drugs were not a concern, however, appellant tested positive for

marijuana and cocaine in November 2017, and tested positive for marijuana through the

conclusion of the case. At trial, she admitted to ongoing marijuana use.

{¶ 15} Kelly Williams was appellant’s ongoing caseworker. She testified that

appellant had been involved with SCJFS on two other occasions with two other children.

In those cases, appellant failed to successfully complete services, lost custody, and the

children were placed with other parties. She further testified that B.M was born with

several medical issues including acid reflux and eczema, and developmentally delays. Stark County, Case No. 2018CA00053 5

B.M has been in a foster placement since birth. All of his medical needs are being met by

his foster parents and he is receiving intervention services for his developmental delays.

B.M is bonded with his foster parents and they have expressed and desire to adopt B.M.

{¶ 16} Based on her observations, Williams testified the benefit of granting

permanent custody to SCJFS outweighed any possible harm of separating B.M from

appellant, and further, was in B.M’s best interest. Debra Shriver, the Guardian ad Litem

appointed to B.M echoed Williams’ recommendation.

{¶ 17} On April 10, 2018, the trial court issued findings of fact and

conclusions of law denying appellant’s motion for extension of temporary custody and

further finding in spite of the efforts by SCJFS, appellant failed to remedy the conditions

that caused B.M to be placed with SCJFS, and that B.M cannot and should not be placed

with appellant. The court therefore found it was in the best interest of B.M to grant

permanent custody to SCJFS and terminated appellant’s parental rights.

{¶ 18} Appellant subsequently filed an appeal and the matter is now before this

court for consideration. Appellant raises two assignments of error:

I

{¶ 19} "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." Stark County, Case No. 2018CA00053 6

II

{¶ 20} "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 IS IN

THE BEST INTERESTS OF THE MINOR CHILD TO GRANT PERMANENT CUSTODY

AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{¶ 21} We address appellant's assignments of error together. In her first

assignment of error appellant argues SCDJFS failed to show by clear and convincing

evidence that permanent custody was appropriate and that the trial court's award of

permanent custody to SCDJFS was against the manifest weight of the evidence. In her

second assignment of error, appellant argues SCDJFS failed to show by clear and

convincing evidence that the award of permanent custody was within B.M's best interest,

and the trial court's finding that it was is against the manifest weight of the evidence. We

disagree.

{¶ 22} 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, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). 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, 54 Ohio St.2d 279, 376 N.E.2d 578

(1978). 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 Stark County, Case No. 2018CA00053 7

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). See also, State v. Thompkins, 78 Ohio St.3d

380, 678 N.E.2d 541, 1997-Ohio-52; Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d

517, 2012-Ohio-2179. In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley at ¶ 21.

Permanent Custody

{¶ 23} R.C. 2151.414(B)(1) states permanent custody may be granted to a public

or private agency if the trial court determines by clear and convincing evidence at a

hearing held pursuant to division (A) of R.C. 215.414, that it is in the best interest of the

child and 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 placing agencies for Stark County, Case No. 2018CA00053 8

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 in this state or another state.

{¶ 24} 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), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985).

“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.” Cross at 477.

{¶ 25} In determining whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents pursuant to R.C.

2151.414(B)(1)(a), a trial court is to consider the existence of one or more factors under

R.C. 2151.414(E) including in relevant part:

(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 Stark County, Case No. 2018CA00053 9

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.

(2) Chronic mental illness, chronic emotional illness, intellectual

disability, physical disability, or chemical dependency of the parent

that is so severe that it makes the parent unable to provide an

adequate permanent home for the child at the present time and, as

anticipated, within one year after the court holds the hearing pursuant

to division (A) of this section or for the purposes of division (A)(4) of

section 2151.353 of the Revised Code;

***

Best Interests

{¶ 26} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child:

(D)(1) In determining the best interest of a child at a hearing held

pursuant to division (A) of this section or for the purposes of division

(A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 Stark County, Case No. 2018CA00053 10

of the Revised Code, the court shall consider all relevant factors,

including, but not limited to, the following:

(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 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; Stark County, Case No. 2018CA00053 11

(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

{¶ 27} Appellant points out that she substantially complied with her case plan

services. Even so, this court has previously recognized, “that even where a parent has

participated in his or her case plan and completed most or all of the plan requirements, a

trial court may still properly determine that such parent has not substantially remedied the

problems leading to agency involvement.” Matter of L.D. 5th Dist. Licking No. 18 CA 0023,

2018-Ohio-3380 ¶ 34, citing In re Pendziwiatr/Hannah Children, 5th Dist. Tuscarawas

App. No. 2007 AP 03 0025, 2007-Ohio-3802, ¶ 27.

{¶ 28} This is one such case. As set forth in our statement of facts, this is

appellant's third involvement with SCJFS and the third child removed from her custody.

T(I) 17. Unfortunately, due to intellectual disability appellant simply cannot parent

independently and has no support system. Appellant admitted to such at trial. T(I) 105-

106. Because appellant's challenges prevent her from applying what she had been taught

and from making sound decisions, she was unable to remedy the issues which caused

the removal of B.M. T(I) 52-53, 72-73, 80-81. In fact, matters became worse instead of

better during the pendency of this matter when appellant began using drugs. Appellant's

drug use further impacts her already impaired ability to make sound judgments. T(I) 49-

50. At the time of trial, appellant had moved into a filthy, unsafe home with a man

possessing a criminal history and at who was under investigation for abusing 2 different

children. T(I) 12, 20-24. Stark County, Case No. 2018CA00053 12

{¶ 29} During visits with B.M, appellant required direction and could not apply what

she had learned in her Goodwill parenting classes. T(I) 76-79. Providers with Goodwill

Parenting could not recommend reunification or even unsupervised visits. T(I) 81. B.M

had been with his foster family since birth and demonstrated a bond with them that did

not exist with appellant. B.M's medical and developmental needs were being addressed

by his foster family and they expressed a desire to adopt B.M. T(II) 7-11,15-17

{¶ 30} Based on the foregoing, we reject appellant's arguments. SCJFS presented

ample evidence to demonstrate by clear and convincing evidence that B.M cannot and

should not be placed with appellant, and further that it was within B.M's best interest to

grant the agency permanent custody. The trial court's finding of the same, therefore, was

not against the manifest weight of the evidence.

{¶ 31} Appellant's first and second assignments of error are overruled. Stark County, Case No. 2018CA00053 13

{¶ 32} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Hoffman, J. concur.

EEW/rw