In Re Canterucci Children, Unpublished Decision (9-25-2006)

2006 Ohio 4969
CourtOhio Court of Appeals
DecidedSeptember 25, 2006
DocketNo. 2006 CA 00144.
StatusUnpublished
Cited by2 cases

This text of 2006 Ohio 4969 (In Re Canterucci Children, Unpublished Decision (9-25-2006)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Canterucci Children, Unpublished Decision (9-25-2006), 2006 Ohio 4969 (Ohio Ct. App. 2006).

Opinion

OPINION
{¶ 1} Appellant Kimberly Butcher appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, that terminated her parental rights and granted Appellee Stark County Department of Job and Family Services' ("SCDJFS") motions for permanent custody. The following facts give rise to this appeal.

{¶ 2} This matter initially commenced on September 9, 2003, when SCDJFS filed a complaint alleging neglect and/or dependency and seeking protective supervision of Selena Canterucci. Neither parent appeared for the emergency shelter care hearing and the trial court placed Selena in the temporary custody of SCDJFS. The trial court conducted a pretrial on October 6, 2003. Appellant appeared at the pretrial and requested appointed counsel to represent her in this matter. The trial court scheduled an evidentiary hearing for November 6, 2003. At the evidentiary hearing, appellant stipulated to dependency. The parties reached an agreement, which was approved by the trial court, to place Selena in a planned permanent living arrangement to allow for one last attempt at reunification.

{¶ 3} The case involving appellant's youngest daughter, Angel Canterucci, commenced on January 8, 2004, two days after her birth. SCDJFS filed a complaint alleging neglect and/or dependency. SCDJFS sought temporary custody of Angel. The trial court conducted a shelter care hearing on January 8, 2004, at which neither parent appeared. The trial court granted a one-day continuance of this hearing and thereafter, placed Angel in the temporary custody of SCDJFS. Subsequently, SCDJFS filed a request for extension of temporary custody on May 27, 2005. SCDJFS followed this request with an amended motion requesting permanent custody on July 25, 2005.

{¶ 4} The parties appeared for a permanent custody hearing on September 6, 2005. At this hearing, the parties reached an agreement, which was approved by the trial court, to extend temporary custody, as to Angel, to allow for a final attempt at reunification. Three months later, on December 5, 2005, SCDJFS filed a second motion for permanent custody as to Selena. The permanent custody hearing commenced on January 16, 2006, with the second day of trial concluding on April 5, 2006.

{¶ 5} On May 1, 2006, the trial court filed its judgment entry and written findings of fact and conclusions of law terminating appellant's parental rights and granting permanent custody of Selena and Angel to SCDJFS. Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:

{¶ 6} "I. 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.

{¶ 7} "II. 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
{¶ 8} In her First Assignment of Error, appellant maintains the trial court's finding that the children cannot or should not be placed with her within a reasonable time is against the manifest weight and sufficiency of the evidence. We disagree.

{¶ 9} 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 (Feb. 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 Constr. (1978),54 Ohio St.2d 279, syllabus.

{¶ 10} R.C. 2151.414(B)(1) addresses under what circumstances a trial court may grant permanent custody. This statute provides as follows:

{¶ 11} "(B)(1) 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:

{¶ 12} "(a) The child is not abandoned or orphaned 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 ending on or after March 18, 1999, 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.

{¶ 13} "(b) The child is abandoned.

{¶ 14} "(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.

{¶ 15} "(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 ending on or after March 18, 1999."

{¶ 16} In the case sub judice, pursuant to R.C.2151.414(B)(1)(d), the trial court found that both of the children have been in the temporary custody of SCDJFS for a period in excess of the prior two years and that the children have been in the temporary custody of SCDJFS for a period of time in excess of twelve of the prior twenty-two consecutive months. Findings of Fact and Conclusions of Law, May 1, 2006, at 6, ¶ 3. The trial court further stated, pursuant to R.C.2151.414(B)(1)(a), the children cannot and/or should not be placed with either parent at this time or in the foreseeable future. Id. at 7, ¶ 12.

{¶ 17} Appellant claims the trial court's judgment that the children cannot or should not be placed with her is against the manifest weight of the evidence. Although the trial court made a finding pursuant to R.C. 2151.414(B)(1)(a), this subsection is not applicable to the case sub judice. Under subsection (B)(1)(a), the child must not have 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 ending on or after March 18, 1999. In the matter currently before the court, the trial court specifically found that the children had been in the temporary custody of SCDJFS for a period in excess of twelve of the prior twenty-two consecutive months.

{¶ 18} Accordingly, we agree with the trial court's finding that R.C. 2151.414(B)(1)(d) is applicable to the facts of this case. Appellant does not challenge the trial court's finding under R.C. 2151.414(B)(1)(d). Further, since findings under R.C.2151.414(B)(1)(a) and R.C. 2151.414

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2006 Ohio 4969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-canterucci-children-unpublished-decision-9-25-2006-ohioctapp-2006.