In re C.B.

2012 Ohio 3486

Opinion

[Cite as In re C.B., 2012-Ohio-3486.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: : Hon. W. Scott Gwin, P.J. C.B., B.B., C.B., AND M.B. : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. : : : Case No. 2012AP040027 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 11JN00143

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 30, 2012

APPEARANCES:

For Mother For Father

SHARON BUCKLEY-MIRHAIDARI JOHN GARTRELL, JR. 152 N. Broadway Ave., Ste. 200 153 North Broadway New Philadelphia, OH 44663 New Philadelphia, OH 44663

DAVID HAVERFIELD KAREN DUMMERMUTH For Job & Family Services Guardian Ad Litem 389 16th Street S.W. Box 494 New Philadelphia, OH 44663 New Philadelphia, OH 44663 [Cite as In re C.B., 2012-Ohio-3486.]

Gwin, P.J.

{¶1} Lisa B., the mother of the minor children C.B., B.B., C.B., and M.B.

appeals a judgment of the Court of Common Pleas, Juvenile Division, of Tuscarawas

County, Ohio, which terminated her parental rights and granted permanent custody of

the children to appellee Tuscarawas County Job and Family Services. Appellant

assigns two errors to the trial court:

{¶2} “I. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY

SERVICES PERMANENT CUSTODY AS SAID DECISION WAS NOT SUPPORTED

BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY O.R.C. 2151.414 AND

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶3} “II. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY

SERVICES PERMANENT CUSTODY WHEN THERE WAS APPROPRIATE RELATIVE

PLACEMENT FOR THE CHILDREN.”

{¶4} The children’s father, Danny B. is not a party to this appeal. At the time of

the hearing, the children were a male aged 16, and females aged 13, 12, & 5. Appellee

removed the children from the home on March 17, 2011. The court found them

neglected and dependent, and placed them in the temporary custody of appellee. On

January 12, 2012, appellee filed a motion for permanent custody.

I.

{¶5} In her first assignment of error, appellant argues the court erred in

granting appellee permanent custody because the decision was not supported by clear

and convincing evidence and was against the manifest weight of the evidence. Tuscarawas County, Case No. 2012AP040027 3

{¶6} Pursuant to R.C. 2151.414, the trial court must make a two-part analysis

before granting permanent custody. First it must determine by clear and convincing

evidence whether any of the criteria in R.C. 2151.414 (B)(1) apply. If the court

determines the criteria does apply, then the court must take the second step of

determining the best interest of the children by clear and convincing evidence pursuant

to R.C. 2151.414 (D).

{¶7} The criteria listed in R.C. 2151.414 (B)(1) are:

(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.

(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 ending on or after

March 18, 1999.

{¶8} The Supreme Court has defined the term clear and convincing evidence

as evidence greater than a mere preponderance of the evidence, which produces in the

mind of the trier of fact a firm belief or conviction as to the facts sought to be Tuscarawas County, Case No. 2012AP040027 4

established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E. 2d 118 (1954), syllabus by

the court, paragraph three.

{¶9} 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 Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶10} Moreover, “an appellate court may not substitute its judgment for that of

the trial court. 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

Company v. Cleveland, the underlying rationale of deferring to the findings of the trial

court rests with the understanding 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. 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, 1997-Ohio-260, 674 N.E.2d 1159.

{¶11} The trial court made findings of fact by clear and convincing evidence.

The court found the children had been removed from the home on March 17, 2011,

approximately one year before the hearing. The court found the removal was prompted

by issues of domestic violence, drug and alcohol abuse, and the long criminal history of

both parents. The court found the report of the guardian ad litem, confirmed by the

testimony of the agency’s case worker, was an accurate summary of the criminal history Tuscarawas County, Case No. 2012AP040027 5

of both parties, as well as their involvement with appellee. The court’s judgment entry

did not set out appellant’s criminal history in detail, but found it consisted mostly of theft

and fraud, disorderly conduct, and endangering children. The court found there was

also a history of numerous calls to law enforcement, mostly made by appellant,

concerning violations of protection orders.

{¶12} The trial court found the children had formerly been in the custody of

Kentucky’s Child Protective Services while both parents were in jail.

{¶13} The case plan for unification of the family listed objectives for appellant,

including: (1) complete psychological evaluation and follow the recommendations; (2)

complete parenting education; (3) obtain a drug and alcohol assessment; (4) obtain

housing; (5) obtain employment or income; and (6) receive domestic violence

counseling.

{¶14} The trial court made numerous findings regarding appellant’s progress on

her case plan. The court found although appellant had completed a psychological

assessment, she had withheld or lied about certain information so excessively that the

court found the evaluation was of no value. The court noted that at the hearing,

appellant insisted none of the information she withheld mattered, because her criminal

history has no bearing on her ability to parent. The court found appellant had

repeatedly failed to honor protection orders issued for her own benefit. Appellant

insisted that despite the alcohol abuse and extensive violence, her husband was a good

father to the children.

{¶15} The court found appellant had failed to maintain steady employment and

housing. She has a long history of prescription drug abuse and had attended the drug Tuscarawas County, Case No. 2012AP040027 6

and domestic violence programs at Harbor House. The court found during the time she

was at Harbor House, appellant continued to send her husband letters while he was

incarcerated, which violated Harbor House’s policy. After being caught corresponding

with her husband, appellant continued to do so by allowing another resident to send

letters to him. Appellant spent 88 days in Harbor House, but left against the advice of

counsel when appellee filed its motion for permanent custody.

{¶16} The court found appellant’s visitation with the children had never

progressed beyond supervised visitation and although the children appeared to enjoy

their visits with her, the visits were chaotic. The court found the older children clearly felt

the need to assume the parental role during the visits. The court also found appellant

discussed inappropriate legal issues with the children and lied to them about her own

progress and other important things in their lives. She lied even though the children

could clearly discern the truth. The court found appellant made no attempt to parent the

children and did not want them to be “mad” at her, resulting in behavior more like a

friend than a mother. The court found appellant made no attempt to take sincere

responsibility for her actions and the hurt that she had caused the children. In her brief

appellant states a great deal of the harm the children suffered was due to appellee’s

actions, and events while the children were in foster care.

{¶17} The court found all four children are currently residing in the same foster

home and have a reasonably good relationship with each other. The court found they

have made some progress towards overcoming their family situation, and no

appropriate relative placement exists. Tuscarawas County, Case No. 2012AP040027 7

{¶18} Based upon these facts and the recommendation of the Guardian Ad

Litem, the court concluded the children cannot and should not be placed with either

parent within a reasonable time.

{¶19} The court found despite diligent reasonable efforts of planning by

appellee to remedy the problems which caused the removal of the children, both

parents had failed continually and repeatedly to substantially remedy the conditions

causing removal. Specifically, the court found appellee had addressed all the concerns

in its case plan, and had offered supportive services for each element of the case plan

in order to assist appellant to complete it. The court concluded that the parents have

demonstrated a lack of commitment towards their children and have failed to provide an

adequate home for the children and cannot do so within a year of the litigation.

{¶20} A trial court may base its decision that a child cannot or should not be

placed with a parent within a reasonable time upon the existence of any one of the R.C.

2151.414(E) factors. The existence of one factor alone will support a finding that the

child cannot be placed with the parent within a reasonable time. See In re: William S.,

75 Ohio St.3d 95, 1996-Ohio-182, 661 N.E .2d 738. Nevertheless, a court should not

give one factor more weight than another. In re: Schaefer, 111 Ohio St.3d 498. 2006–

Ohio–5513. The pertinent factors are:

(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 Tuscarawas County, Case No. 2012AP040027 8

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, mental retardation,

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;

***

{¶21} Appellant argues that the trial court’s findings are not supported by the

evidence and testimony presented at the hearing. Appellant asserts appellee failed to

prove the children could not be placed with appellant, because she had successfully

and substantially completed all the case plan requirements except for housing.

{¶22} Appellant conceded she had not obtained housing at the time of the

hearing, but she testified she should have housing in a couple of months. She asserts

contrary to the court’s finding, she took responsibility for her actions and had made

positive changes. Tuscarawas County, Case No. 2012AP040027 9

{¶23} The trial court found it to be in the children’s best interest for them to be

placed in appellee’s permanent custody. To make such a determination, the court must

consider the factors listed in R.C. 2151.414(D). The factors are:

(1) 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;

(2) 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;

(3) 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 ending on or after March 18, 1999;

(4) 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;

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

apply in relation to the parents and child.

{¶24} The trial court’s findings of fact concerning the children are sparse, but the

court specifically stated it considered all the statutory factors. Appellant does not cite us

to any place in the judgment entry or in the record to contest this.

{¶25} We have reviewed the record, including the transcripts of the hearings,

and we find the trial court’s findings are supported by clear and convincing evidence

and are not against the manifest weight of the evidence. Tuscarawas County, Case No. 2012AP040027 10

{¶26} The first assignment of error is overruled.

II.

{¶27} In her second assignment of error, appellant argues the trial court erred in

granting appellee permanent custody when there was an appropriate relative placement

for the children. The trial court found there was no appropriate relative placement

available. Appellant argues the paternal grandmother, Shirley B., was present in court

and petitioned the court for home studies and for custody of the children. The record is

unclear regarding Shirley B.’s participation in the home study.

{¶28} At the hearing for permanent custody, appellant was asked about her

relationship with Shirley B. Appellant testified Shirley B. would be a perfectly

appropriate placement, but conceded that at a prior hearing appellant had objected to

Shirley B.’s presence in the courtroom and had asked to have her removed. Appellant

admitted having lied about Shirley B. because she had told the agency Shirley B. had a

problem with pills and sold some pills, had struck one of the children, and harassed the

family. Appellant explained she had made up all of those allegations because at the

time, appellant did not want the kids placed in Shirley B.’s custody, but rather wanted

them to return to appellant.

{¶29} The guardian ad litem’s report and appellee urged the court to place the

children in appellee’s permanent custody.

{¶30} We find the trial court did not err in determining there was no appropriate

relative placement available for the children. Accordingly, the second assignment of

error is overruled. Tuscarawas County, Case No. 2012AP040027 11

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

Juvenile Division, of Tuscarawas County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG:clw 0713 [Cite as In re C.B., 2012-Ohio-3486.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: C.B., B.B., C.B., AND M.B. : : : : : : JUDGMENT ENTRY : : : : CASE NO. 2012AP040027

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

the Court of Common Pleas, Juvenile Division, of Tuscarawas County, Ohio, is affirmed.

Costs to appellant.