In re C.K.

2014 Ohio 3103

Opinion

[Cite as In re C.K., 2014-Ohio-3103.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: C. K. : JUDGES: : Hon. Sheila G. Farmer, P.J. A MINOR CHILD : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2014CA00046 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case No. 2012JCV00521

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 14, 2014

APPEARANCES:

For Appellant For Appellee

DAVID L. SMITH LISA A. LOUY 245 33rd Street, NW 221 Third Street, SE Canton, OH 44709 Canton, OH 44702 Stark County, Case No. 2014CA00046 2

Farmer, P.J.

{¶1} On May 29, 2012, appellee, the Stark County Department of Job and

Family Services, filed a complaint for temporary custody of C. K. born May 24, 2012,

alleging the child to be dependent, neglected, and/or abused. Mother of the child is

appellant, Candace German; father of the child is Justin K. who is not a party to this

appeal.

{¶2} On June 21, 2012, the trial court found the child to be abused and placed

the child in appellee's temporary custody.

{¶3} On October 25, 2013, appellee filed a motion for permanent custody.

Hearings were held on January 2, and February 12, 2014. By judgment entry filed

February 18, 2014, the trial court granted permanent custody of the child to appellee.

Findings of fact and conclusions of law were filed same date.

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

consideration. Assignments of error are as follows:

I

{¶5} "THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT

ABANDONED THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE."

II

{¶6} "THE COURT'S ORDER STATING THAT [C. K.] COULD NOT BE

PLACED WITH ANY BIOLOGICAL PARENT AT THE TIME OF TRIAL OR WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE." Stark County, Case No. 2014CA00046 3

I, II

{¶7} Appellant claims the trial court erred in granting permanent custody of the

child to appellee, as the findings of abandonment and placement within a reasonable

time were against the sufficiency and manifest weight of the evidence. We disagree.

{¶8} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the 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 must be reversed and a new trial ordered." State v. Martin, 20 Ohio

App.3d 172, 175 (1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-

52; Eastley v. Volkman, 132 Ohio St.3d 328, 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.

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

custody. Said section states in pertinent part as follows:

(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 Stark County, Case No. 2014CA00046 4

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

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) The parent has abandoned the child.

(16) Any other factor the court considers relevant.

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

trial 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, 161 Ohio St. 469 (1954), paragraph three of the syllabus. See also, Stark County, Case No. 2014CA00046 5

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.

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

interest of the child. Said section states relevant factors include, but are 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***;

(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. Stark County, Case No. 2014CA00046 6

{¶12} In its judgment entry filed February 18, 2014, the trial court found the

parents had abandoned the child, the child had been in appellee's custody for twelve or

more months of a consecutive twenty-two month period (from June 21, 2012 to the time

of the hearing, February 12, 2014), and it was in the child's best interest to grant

permanent custody of the child to appellee. R.C. 2151.414(B)(1)(b) and (d).

{¶13} By her own admissions, appellant never visited the child, is serving a thirty

month sentence for a probation violation (twenty-one months are remaining), and never

completed any of the case plan services. T. at 4-6. Appellant blamed her failure to

complete any case plan services and attend hearings on her SRCCC restrictions. T. at

8-10. However, prior to her SRCCC confinement, fourteen months had lapsed wherein

she made no attempt to comply with the case plan. T. at 12-13. Appellant blamed this

failure on her "active addiction" which she explained was "a disease. Your (sic) born

with it." T. at 13, 14. She denied receiving the case plan, but State's Exhibit A

demonstrates that she did, and the caseworker, Adrienne Chenault, testified appellant

reviewed the case plan and signed it. T. at 13, 19, 20. Appellant never requested

visitation with the child. T. at 21-22.

{¶14} Ms. Chenault testified she has worked with other clients who were able to

work their case plans while in SRCCC, but appellant was unable to because of the

restrictions placed upon her due to her lack of trustworthiness and failure to comply with

SRCCC. T. at 20. Appellant made no efforts during the fourteen months prior to her

SRCCC confinement to contact the child or comply with the case plan. T. at 19-21.

Appellant refused a treatment program because she did not want to be confined, Stark County, Case No. 2014CA00046 7

although she was told the facility was not locked and she could leave. T. at 19.

Appellant still "did not want to do that." Id. Based upon this history, Ms. Chenault

testified appellant could not complete the case plan in a reasonable amount of time. T.

at 22.

{¶15} The guardian ad litem testified and recommended permanent custody of

the child to appellee. T. at 60-61. A possible relative placement was denied because of

a failed home study in August 2012. T. at 35. Another possible relative placement was

not recommended because of a failed background check on the relative's fiancé. T. at

36. The relative had never met the child. T. at 55.

{¶16} Although appellant prayed for a second chance, from the history of

appellant's lack of cooperation and future twenty-one months of incarceration, the

second chance ship sailed some twenty months ago.

{¶17} The child is currently in foster care and the foster parents are interested in

adopting the child. T. at 35. The child has bonded with the family. Id.

{¶18} Upon review, we find the trial court's conclusions on abandonment under

R.C. 2151.414(B) and best interest are supported by clear and convincing evidence.

The trial court did not err in granting permanent custody of the child to appellee.

{¶19} Assignments of Error I and II are denied. Stark County, Case No. 2014CA00046 8

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

Family Court Division is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.

SGF/sg 623