In re D.C.

2015 Ohio 4756

Opinion

[Cite as In re D.C., 2015-Ohio-4756.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: Hon. W. Scott Gwin, P. J. IN THE MATTER OF: Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

D.C. Case No. 15 CA 57

DEPENDENT CHILD OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2012 DEP 143

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 18, 2015

APPEARANCES:

For Appellant Father For Appellee

JOHN C. O'DONNELL TIFFANY D. BIRD 13 Park Avenue West CHILDREN SERVICES Suite 300 731 Scholl Road Mansfield, Ohio 44902 Mansfield, Ohio 44907 Richland County, Case No. 15 CA 57 2

Wise, J.

{¶1}. Appellant Dennis Caldwell appeals the decision of the Richland County

Court of Common Pleas, Juvenile Division, which granted permanent custody of his

son, D.C., to Appellee Richland County Children Services ("RCCS"). The relevant

facts leading to this appeal are as follows.

{¶2}. On October 16, 2012, following several months of attempted voluntary

services, Appellee RCCS filed a complaint alleging D.C., born in 2008, was dependent,

neglected, and/or abused. The concerns centered on possible substance abuse

regarding the child's mother, Reena Caldwell, and domestic violence issues regarding

Appellant Dennis Caldwell.1 The agency's complaint was later amended to a

dependency allegation only.

{¶3}. The mother, Reena, stipulated to a dependency finding. Appellant

disputed such finding, and the matter was reviewed via an evidentiary hearing. A

judgment entry of dependency was issued by the trial court on February 11, 2013.

{¶4}. In the meantime, on or about November 29, 2012, pursuant to a

magistrate's order, D.C was placed in the temporary custody of Twila McFairen, his

maternal grandmother, who also had temporary custody or placement of D.C's two

minor half-siblings, B.R. and J.R. Protective supervision was granted to RCCS. D.C.

was also placed with an adult half-brother, Dennis Caldwell III, for about two weeks in

February 2013. However, the grandmother had issues of her own, particularly the

problem of inadequate housing, despite a number of attempts by the agency to procure

1 The mother of D.C., Reena Caldwell, has not pursued an appeal of the grant of permanent custody. The record reveals her participation in the agency's case plan was virtually non-existent. Richland County, Case No. 15 CA 57 3

assistance for her. Ultimately, on July 29, 2013, D.C. and his half-siblings were

removed from the grandmother's care, and D.C. was placed with a foster family.

Temporary custody was returned to RCCS.

{¶5}. In addition, in July 2013, an incident of domestic violence took place

between appellant and Reena, D.C.'s mother. Appellant was ultimately charged with

and convicted of felony counts of domestic violence and abduction, and he was

sentenced to prison until July 2016.

{¶6}. On July 3, 2014, RCCS filed a motion for permanent custody.

{¶7}. The matter of permanent custody, as well as various dispositional motions

filed by the parties, came on for trial before a magistrate on October 6 and 8, and

December 10, 2014.

{¶8}. On January 14, 2015, the magistrate issued a detailed 23-page decision

recommending permanent custody of D.C. to the agency.

{¶9}. On January 23, 2015, appellant filed an objection to the magistrate's

decision. Via judgment entry filed on June 11, 2015, the trial court upheld the

magistrate's decision and thereby granted permanent custody of D.C. to RCCS.

{¶10}. On June 30, 2015, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

{¶11}. “I. [THE] TRIAL COURT'S CONCLUSION THAT PERMANENT

CUSTODY WAS WARRANTED IS NOT SUPPORTED BY CLEAR AND CONVINCING

EVIDENCE. Richland County, Case No. 15 CA 57 4

{¶12}. “II. [THE] TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

FAILING TO GRANT [A] CONTINUANCE OF THE PERMANENT CUSTODY

HEARING.”

I.

{¶13}. In his First Assignment of Error, appellant challenges the trial court's grant

of permanent custody of D.C. to Appellee RCCS.

{¶14}. R.C. 2151.414(B)(1) states in relevant part as follows:

{¶15}. “(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:

{¶16}. “(a) The child is not abandoned or orphaned, 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,

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 if, 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, 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.

{¶17}. “(b) The child is abandoned. Richland County, Case No. 15 CA 57 5

{¶18}. “(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

{¶19}. “(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, 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.

{¶20}. “(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.”

{¶21}. We note the magistrate in the case sub judice relied on R.C.

2151.414(B)(1)(a), supra, as well as R.C. 2151.414(B)(1)(d), supra, sometimes termed

the “twelve of twenty-two” rule. It is well-established that (B)(1)(a) and (B)(1)(d) are

independently sufficient to use as a basis to grant an agency's motion for permanent

custody. See In re M.R., 3d Dist. Defiance No. 4–12–18, 2013–Ohio–1302, ¶ 80. In this

instance, it is undisputed that at the time of the filing of the permanent custody motion,

D.C. had been in agency custody for more than twelve months within a twenty-two

month period. Under these circumstances, we are compelled, based on R.C.

2151.414(B)(1)(d), to directly proceed to an analysis of the best interest issue. See, Richland County, Case No. 15 CA 57 6

e.g., In re Walton/Fortson Children, Stark App.No. 2007CA00200, 2007–Ohio–5819, ¶

14.

{¶22}. In proceeding to the best interest issue, we first note that as an appellate

court, we are not fact finders; we neither weigh the evidence nor judge the credibility of

witnesses. Our role is to determine whether there is relevant, competent and credible

evidence upon which the fact finder could base his or her judgment. Cross Truck v.

Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911. A reviewing court must

determine whether the finder of fact, in resolving conflicts in the evidence, clearly lost

his or her way and created such a manifest miscarriage of justice that the judgment

must be reversed and a new trial ordered. See Hunter v. Green, 5th Dist. Coshocton

No. 12–CA–2, 2012–Ohio–5801, 2012 WL 6094172, ¶ 25, citing Eastley v. Volkman,

132 Ohio St.3d 328, 972 N.E.2d 517, 2012–Ohio–2179. It is well-established that the

trial court is in the best position to determine the credibility of witnesses. See, e.g., In re

Brown, 9th Dist. Summit No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass

(1967), 10 Ohio St .2d 230, 227 N.E.2d 212. Furthermore, “[t]he discretion which the

juvenile court enjoys in determining whether an order of permanent custody is in the

best interest of a child should be accorded the utmost respect, given the nature of the

proceeding and the impact the court's determination will have on the lives of the parties

concerned.” In re Mauzy Children, 5th Dist. Stark No. 2000CA00244, 2000 WL

1700073, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.

{¶23}. In determining the best interest of a child for purposes of a permanent

custody disposition, the trial court is required to consider all relevant factors, including, Richland County, Case No. 15 CA 57 7

but not limited to, the factors contained in R.C. 2151.414(D)(1). These statutory factors

are as follows:

{¶24}. “(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;

{¶25}. “(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;

{¶26}. “(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;

{¶27}. “(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;

{¶28}. “(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

{¶29}. In the case sub judice, the focus of appellant's argument is that D.C.'s

best interest would be better served by permitting legal custody or further placement

with Twila McFairen, the maternal grandmother. See, e.g., Appellant's Brief at 16. We Richland County, Case No. 15 CA 57 8

note testimony by the RCCS caseworker, Amanda Campbell, indicated D.C. has

developed a bond with his foster parents; Campbell indicated that this is unfortunately

not an adoptive placement and that another foster home will have to be found. The

record further indicates that D.C. and his half-siblings, B.R. and J.R., would prefer to

stay with Twila. However, the guardian ad litem, Sandra Convoy, who served

throughout the case, recommended permanent custody. See R.C. 2151.414(D)(1)(b).

{¶30}. Furthermore, a recurring theme in the testimony was Twila's problems with

obtaining and maintaining adequate housing for D.C. and the other two children. At the

outset, Twila had a one-bedroom apartment for herself and the three boys, D.C., B.R.,

and J.R. In April 2013, RCCS became aware of Twila's failure to pay rent for the

previous six months. Furthermore, the apartment building had been found to have a

bedbug infestation, and Twila was facing eviction by the landlord. RCCS assisted Twila

in obtaining a new residence, but she was soon evicted from that location and was

forced to move into the Harmony House homeless shelter for several months. She then

obtained another apartment, but it was again a one-bedroom design. Appellant

presently concedes that Twila is dependent upon financial assistance for furniture and

an apartment of sufficient size, as her social security income and other assistance is

inadequate. See R.C. 2151.414(D)(1)(d).

{¶31}. The testimony also revealed significant questions about Twila's long-term

parenting capabilities. While we must avoid overemphasizing any one event within the

formidable task of taking care of three grandchildren, an event described by the Richland County, Case No. 15 CA 57 9

caseworker, Ms. Campbell, is noteworthy.2 She described a recent supervised visit

between Twila, D.C., and his half-brothers involving a trip to a buffet restaurant as a

"disaster," with D.C. running around the facility and playing in the food on the serving

line, unable to be controlled by the apparently unconcerned grandmother. See Tr. at

382-383. Twila had also allowed appellant to violate a no-contact order earlier in the

case (prior to his incarceration), and she has refused to take part in further parenting

education programs. We also reiterate that D.C. was in agency custody for more than

twelve months out of twenty-two at the time of the permanent custody motion. See

R.C. 2151.414(D)(1)(c).

{¶32}. Accordingly, upon review of the record and the findings of fact and

conclusions of law therein, we find no basis to alter the decision of the trier of fact, and

we conclude the grant of permanent custody of D.C. to RCCS in lieu of legal custody or

further placement with the grandmother was made in the consideration of the child's

best interests and did not constitute an error or an abuse of discretion.

{¶33}. Appellant's First Assignment of Error is overruled.

II.

{¶34}. In his Second Assignment of Error, appellant contends the trial court

committed reversible error in denying his trial counsel's oral motion to continue the trial

before the magistrate. We disagree.

{¶35}. A trial court has the inherent authority to manage its own proceedings and

control its own docket. Love Properties, Inc. v. Kyles, 5th Dist. Stark No.

2006CA00101, 2007–Ohio–1966, ¶ 37, citing State ex rel. Nat. City Bank v. Maloney,

2 The complete transcript in this matter runs more than 500 pages and incorporates the testimony of ten witnesses. Richland County, Case No. 15 CA 57 10

7th Dist. Mahoning No. 03 MA 139, 2003–Ohio–7010, ¶ 5. Specifically, the grant or

denial of a continuance is a matter entrusted to the broad, sound discretion of the trial

court. Polaris Ventures IV, Ltd. v. Silverman, 5th Dist. Delaware No. 2005 CAE 11

0080, 2006–Ohio–4138, ¶ 14, citing State v. Unger (1981), 67 Ohio St.2d 65, 423

N.E.2d 1078. In order to find an abuse of discretion, we must determine that the trial

court's decision was unreasonable, arbitrary or unconscionable, and not merely an

error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450

N.E.2d 1140.

{¶36}. The record herein reveals that at the commencement of trial, appellant's

trial counsel stated: " *** [M]y client is asking for a continuation of this hearing until

such time as [he and Reena Caldwell] can communicate and come to some resolution,

either with regards to the disposition or at least with regards to preparing for hearing."

Tr. at 12.

{¶37}. We presently note appellant's objection and amended objection to the

decision of the magistrate do not set forth a challenge to the decision to deny a

continuance. Juv.R. 40(D)(3)(b)(iv) clearly states that "[e]xcept for a claim of plain

error, a party shall not assign as error on appeal the court's adoption of any factual

finding or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that

finding or conclusion as required by Juv.R. 40(D)(3)(b)." However, it appears the trial

court permitted appellant to file an addendum to his objections, at which time the

magistrate's denial of the request for a trial continuance was brought up. The

addendum was filed on May 20, 2015, more than three months after the objections. Richland County, Case No. 15 CA 57 11

Nevertheless, upon review, we find it reasonable to conclude that appellant directly

contributed to the circumstances leading to his request to continue, i.e., his

incarceration and the criminal no-contact order issued because of his violent behavior

toward D.C.'s mother. As such, we find no abuse of discretion or plain error on the

issue of the denied continuance under the circumstances presented.

{¶38}. Accordingly, appellant's Second Assignment of Error is overruled.

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

Juvenile Division, Richland County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

JWW/d 1104