In re B.P.

2013 Ohio 2714

Opinion

[Cite as In re B.P., 2013-Ohio-2714.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. B.P. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 13-CA-17 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2011-AB-0069

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 26, 2013

APPEARANCES:

For Appellant For Appellee

GILBERTO J. CHARRIEZ JULIE S. BLAISDELL P.O. Box 1091 239 West Main Street Lancaster, OH 43130 Suite 101 Lancaster, OH 43130 For Roberta Prevette Guardian ad Litem ADRIENNE LARIMER 118 West Chestnut Street KRISTI McANAUL Lancaster, OH 43130 660 Hill Road North Pickerington, OH 43147 For Sherry Oiler For B.P. MICHELLE L. EDGAR 414 East Main Street JAMES DYE Suite 200 P.O. Box 161 Lancaster, OH 43130 Pickerington, OH 43147 Fairfield County, Case No. 13-CA-17 2

Farmer, J.

{¶1} On May 3, 2011, B.P., born January 19, 2011, was found to be an abused

child and placed in the temporary custody of appellee, Fairfield County Child Protective

Services. Mother of the child is Roberta Prevette; father is appellant, Christopher Oiler.

{¶2} On August 1, 2011, appellee filed a motion for permanent custody of the

child. Hearings were held on August 21, and November 20, 2012. By entry filed

January 8, 2013, the trial court granted permanent custody of the child to appellee.

Findings of fact and conclusions of law were attached to the entry.

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

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY

TO FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES BECAUSE SAID

DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{¶5} Appellant claims the trial court erred in granting permanent custody of B.P.

to appellee as the decision was not supported by clear and convincing evidence and

was against the manifest weight 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, 5th Dist. No. CA–5758, (February 10, 1982). Accordingly,

judgments supported by some competent, credible evidence going to all the essential Fairfield County, Case No. 13-CA-17 3

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 (1978).

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

custody. Said section states the following in pertinent part:

(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:

(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 Fairfield County, Case No. 13-CA-17 4

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.

(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;

(16) Any other factor the court considers relevant.

{¶8} R.C. 2151.414(B) enables a trial court to grant permanent custody of a

child if the court determines by clear and convincing evidence that it is in the best

interests 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, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 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.

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

determining the best interests 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 of the Fairfield County, Case No. 13-CA-17 5

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;

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

section apply in relation to the parents and child.

For the purposes of division (D)(1) of this section, a child shall be

considered to have entered the temporary custody of an agency on the Fairfield County, Case No. 13-CA-17 6

earlier of the date the child is adjudicated pursuant to section 2151.28 of

the Revised Code or the date that is sixty days after the removal of the

child from home.

{¶10} B.P. has been in appellee's temporary custody for twelve of the last

consecutive twenty-two months. In its findings of fact filed January 8, 2013, the trial

court found the following:

Fairfield County Child Protective services wanted Christopher Oiler

to engage in mental health and parenting counseling. Christopher Oiler

did not have insurance, so Fairfield County Child Protective Services

investigated Mid-Ohio Psychological Services, New Horizons, and other

counseling agencies to determine if any agency would accept Christopher

Oiler with a sliding fee scale. Fairfield County Child Protective Services

was unable to locate any agency to perform the counseling on a sliding

fee scale. If Christopher Oiler had obtained employment where he could

obtain insurance, Fairfield County Child Protective Services could have

facilitated mental health and parenting counseling.

Christopher Oiler has been steadily employed since approximately

February, 2012. Christopher Oiler has chosen to accept employment that

has not offered insurance. Christopher Oiler has not exerted diligent

efforts to investigate his insurance options within his employment, nor has

he sought out a clear explanation as to when he would be eligible for

insurance within his employment. Fairfield County, Case No. 13-CA-17 7

Fairfield County Child Protective Services wanted Christopher Oiler

to provide safe, stable housing for [B.P.]. Since becoming involved with

Roberta Prevette, mother of [B.P.], Christopher Oiler has moved five (5)

times. Christopher Oiler has lived with Roberta Prevette, Roberta

Prevette's parents, his mother, and now, his girlfriend. Christopher Oiler

agrees that it is not a good idea for children to move that many times.

Christopher Oiler believed that there was no reason for him to have a

stable home until he would obtain custody of [B.P.]. Christopher Oiler has

not obtained independent, stable housing.

Following the placement of [B.P.] outside his home and

notwithstanding reasonable case planning and diligent efforts by Fairfield

County Child Protective Services to assist Christopher Oiler to remedy the

problems that initially caused the child to be placed outside the home,

Christopher Oiler has failed continuously and repeatedly to substantially

remedy the condition causing [B.P.] to be placed outside the child's home.

Christopher Oiler has not utilized services and resources that were made

available to him for the purpose of changing parental conduct to allow him

to resume and maintain parental duties.

Christopher Oiler has demonstrated a lack of commitment toward

[B.P.] by failing to regularly support, visit, or communicate with [B.P.] when

able to do so, or by other actions showing an unwillingness to provide an

adequate permanent home for [B.P.].

*** Fairfield County, Case No. 13-CA-17 8

The lack of communication with a significant other appears to be a

pattern for Christopher Oiler. At the beginning of his relationship with

Roberta Prevette, he knew that she did not have custody of her children,

but did not ask her why she did not have custody of her children.

Christopher Oiler also claims not to have known that Roberta Prevette had

issues with drugs and/or alcohol until prior to her pregnancy with [B.P.].

Although he lived with Roberta Prevette throughout most of the pregnancy

with [B.P.], Christopher Oiler claims to not have known that Roberta

Prevette used drugs throughout the pregnancy. At birth, [B.P.] tested

positive for opiates. Christopher Oiler claims that he did not ask Roberta

Prevette if she had used opiates during the pregnancy. This is relevant to

the Court.

[B.P.] and her siblings were placed with Roberta Prevette on

February 20, 2011, on a visit status with Christopher Oiler as the

protective capacity for the children. From February 20, 2011 to February

28, 2011, Christopher Oiler allowed people who are known drug users,

specifically Ronda Prevette and Lucas Davis, to be in the presence of the

children on two (2) occasions. Christopher Oiler failed in his role as the

protective capacity for [B.P.] or her half siblings, as Christopher Oiler left

all of the children alone with Roberta Prevette for at least two (2) hours.

Christopher Oiler claims not to have known whether Roberta Prevette was

using drugs during this period. On February 28, 2011, it was discovered

that [B.P.], date of birth: January 19, 2011, suffered significant injuries,

including but not limited to, six (6) fractured ribs and a fractured left wrist. Fairfield County, Case No. 13-CA-17 9

No criminal charges concerning these injuries have been filed.

Christopher Oiler was a suspect. This information is relevant to the Court.

After [B.P.]'s release from the hospital due to her injuries,

Christopher Oiler maintained his relationship with Roberta Prevette, and

was dishonest with Fairfield County Child Protective Service and his

mother about his contact with Roberta Prevette. This information is

relevant to the Court.

Christopher Oiler continues to demonstrate that he does not have

the ability to ensure [B.P.]'s safety. If she were to be placed in the legal

custody of Christopher Oiler, history indicates that she could be at risk for

physical harm, and at risk of contact with individuals who abuse drugs

and/or alcohol. Given these circumstances, the Court cannot find that it is

in the best interest of [B.P.] for her to be placed in the legal custody of

Christopher Oiler.

{¶11} Appellant argues the following specific findings of the trial court are in

error: appellee made diligent efforts to remedy the issues, appellant failed to obtain

insurance to provide assistance for his counseling, appellant failed to regularly support

and visit [B.P.], appellant's live-in girlfriend failed to care for her own child, appellant

failed to communicate and ensure the safety and protection of [B.P.], and appellant or

his family could not serve as permanent placement.

{¶12} The evidence established appellant lived in numerous different residences

and he basically lived with others, never in his own place. Day 1 T. at 136, 141, 142-

148. He readily admitted to unstable housing conditions. Id. at 147, 151. While the Fairfield County, Case No. 13-CA-17 10

mother of [B.P.] was pregnant, appellant disregarded her drug abuse and thereby failed

to protect his unborn child. Id. at 163-164. B.P. was born addicted to opiates and

suffered withdrawal symptoms and appellant failed to discuss the issue with B.P.'s

mother because "I didn't want to know." Id. While B.P. was in his exclusive custody, he

was never to leave the child unsupervised with the child's mother. Day 2 T. at 38. He

failed to follow this condition of custody. Id. at 38-39. B.P. suffered six fractured ribs

and a fractured left wrist which were identified as child abuse. Appellant, his mother,

and the child's mother were all considered suspects, although no one was charged.

Day 1 T. at 178, 186, 211; Day 2 T. at 37. It was not refuted that the injuries occurred

on appellant's watch while he had custody and supervision of B.P. Appellant had

virtually no plan for the care of B.P. but to raise the child with his new girlfriend. Day 1

T. at 196. Appellant did not provide child support. Id. at 202.

{¶13} We find these facts support the trial court's findings of appellant's lack of

communication, failure to support and ensure the safety and protection of B.P., and

failure to provide a secure placement.

{¶14} The record contains evidence concerning appellant's need to obtain

counseling and lack of financial ability to fulfill this case plan requirement. Medical

insurance was needed in order to secure counseling. Day 2 T. at 28, 30. Appellant quit

a job at Anchor just prior to being eligible for insurance, and he failed to fully investigate

the availability of medical insurance at Anchor or at his new place of employment. Day

1 T. at 192-195, Day 2 T. at 30. Appellant never sought outside assistance to receive

counseling. Day 1 T. at 195, 213. For over one and one-half years, appellant failed to

obtain counseling, and failed to support B.P. Day 2 T. at 41. We find these facts Fairfield County, Case No. 13-CA-17 11

support the trial court's conclusion that due diligence by appellee was made and

appellant failed to fulfill the case plan.

{¶15} Appellant's sole plan for B.P. was to raise the child with his live-in

girlfriend. Day 1 T. at 196. However, the girlfriend did not have custody of her own

child and the reasons were unknown. Day 2 T. at 32-33. Appellant's attitude about

continued contact with B.P.'s mother, who freely relinquished her rights to parent, also

was of concern. Id. at 39-40.

{¶16} Lastly, appellant argues his mother, Sherry Oiler, should have been

granted legal custody of the child as a relative placement. Ms. Oiler's appeal in Case

No. 13-CA-12 assigned the same error which we denied. We hereby adopt our opinion

therein by reference.

{¶17} The sole assignment of error is denied.

{¶18} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

_______________________________

SGF/sg 522 JUDGES [Cite as In re B.P., 2013-Ohio-2714.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : B.P. : JUDGMENT ENTRY : : : : CASE NO. 13-CA-17

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

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

affirmed. Costs to appellant.

JUDGES