In re D.H.

2013 Ohio 1170

• Court: Ohio Court of Appeals
• Decided: March 22, 2013
• Docket: 2012 AP 12 0071
• Status: Published

Opinion

[Cite as In re D.H., 2013-Ohio-1170.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES: Hon. William B. Hoffman, P.J D.H. AND D.P Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. NEGLECTED & DEPENDENT CHILDREN

Case No. 2012 AP 12 0071

OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 11 JN 00367

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 22, 2013

APPEARANCES:

For Appellant For Appellee

JOHN BRECHBILL JEFF KIGGANS 153 North Broadway 389 16th Street, SW New Philadelphia, OH 44663 New Philadelphia, OH 44663

For Jack & Dixie Lamb Guardian ad Litem

SHARON BUCKLEY Karen Dummermuth 152 North Broadway 349 East High Avenue New Philadelphia, OH 44663 New Philadelphia, OH 44663 Tuscarawas County, Case No. 2012 AP 12 0071 2

Farmer, J.

{¶1} On July 20, 2011, appellee, the Tuscarawas County Department of Job

and Family Services, filed a complaint for temporary custody of D.H. born January 10,

2006 and D.P. born August 29, 2008, alleging the children to be dependent and

neglected. Mother of the children is appellant, Melissa Prince; father of D.H. is Jason

Huff and father of D.P. is Charles Sanders.

{¶2} On August 17, 2011, appellant admitted to the complaint as written, and

the trial court found the children to be dependent and neglected. Following a hearing

on September 13, 2011, the trial court granted appellee temporary custody of the

children.

{¶3} On June 5, 2012, appellee filed a motion for permanent custody.

Hearings were held on October 11 and 25, 2012. By judgment entry filed November

13, 2012, the trial court granted permanent custody of the children to appellee.

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

consideration. Assignments of error are as follows:

I

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

TO JOB AND FAMILY SERVICES AS SAID DECISION WAS NOT SUPPORTED BY

CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

{¶6} Appellant claims the trial court's decision to grant permanent custody of

the children to appellee was not supported by clear and convincing evidence, as she Tuscarawas County, Case No. 2012 AP 12 0071 3

was not given a reasonable amount of time to fulfill her case plan and specific findings

of fact made by the trial court were not supported by the evidence. We disagree.

{¶7} 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

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).

{¶8} 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

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: Tuscarawas County, Case No. 2012 AP 12 0071 4

(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.

(16) Any other factor the court considers relevant.

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

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,

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. Tuscarawas County, Case No. 2012 AP 12 0071 5

{¶10} On the reasonable time standard, the trial court entered the following

specific findings in its judgment entry filed November 13, 2012:

18. On the whole, the Court recognizes signs that Ms. Prince can

eventually achieve long-term sobriety. Her actual ability to do this,

however, is still unknown and the emotional damage to her children has

been great. It is necessary for this Court to separate the needs of these

children from the needs or desires of their parents. In doing this, the Court

must weigh the risk of returning children to a previously destructive

environment, even if that environment shows some signs of improvement.

19. The Court finds that the risk to the welfare of these children

would be dangerously unacceptable if they were placed in an environment

that is less stable than the one in which they reside now.

{¶11} The professionals that dealt with appellant's cocaine, alcohol, and theft

addictions concur that although appellant is striving to reach long-term sobriety, it has

not happened as of the date of the hearing. All agree that one year of sobriety is a

milestone to the achievement of long-term sobriety. T. at 124, 131, 186, 213-214, 237.

{¶12} The caseworker assigned to appellant's case, Jaime Grunder, testified

that enough time had passed and appellant still could not maintain sobriety for one

year. T. at 21, 55. Ms. Grunder pointed to appellant's relapses since completion of

Harbor House inpatient treatment and Aftercare outpatient treatment. T. at 6-7, 9-11,

18-19. Appellant was sober during the programs that ended in March 2012, but by Tuscarawas County, Case No. 2012 AP 12 0071 6

April 2012, she had relapsed because of the stress she was experiencing. T. at 9-10,

12. Ms. Grunder explained appellant's theft addiction and her recent shoplifting charge

which she hid from her was another example of her inability to handle her addictions.

T. at 19-21. Further, one of the root causes of appellee's involvement was domestic

violence. Appellant kept in contact with her abuser regardless of appellee's warnings

to stay away. T. at 29-31. Appellant also was not forthcoming as to the cause of her

recent injury that necessitated taking a prescription narcotic without consultation from

her drug counselors. T. at 36-37, 171-173.

{¶13} The trial court was forced to balance the course of appellant's commitment

to her long-term sobriety against the relapses, thefts, and falsehoods of the past. A

year had passed since the filing of the complaint and despite appellant's six months of

inpatient and outpatient sobriety, she relapsed two times with cocaine and committed a

theft offense. We find the trial court's decision on reasonable time to complete the

case plan was based on clear and convincing evidence.

{¶14} Appellant also challenges the following specific findings of fact by the trial

court:

6. Up until that time, she continued to abuse cocaine after this

complaint was filed in July 2011. She also abuses marijuana,

benzodiazepines, and opiates. She has reported cocaine use of 2 or 3

times a week with each use costing her $200.00 - $300.00. Her last

cocaine use occurred after her completion of the in-patient treatment

program at Harbor House. Tuscarawas County, Case No. 2012 AP 12 0071 7

8. Melissa Prince has a history of choosing domestically violent

men. Even after Charles Sanders was jailed for assaulting her, she

continued to send him letters in jail. Her psychological evaluation reveals

her tendency to choose violent men. Her evaluation indicates that she is

very dependent and insecure to the extent that she will easily rely on

others and acquiesce to them in a pathological way.

13. Although these small children have made progress in foster

care, it is very certain that the domestic traumas in their lives have left

lifelong emotional scars.

14. While Melissa Prince has technically completed many of her

case plan services, it is clear that overall, the problems that caused the

removal of these children have not been alleviated to any significant

degree upon which the Court can rely.

15. After a ten-year period of cocaine abuse, Melissa Prince has

been drug free for only 4 months. Her employment history is very poor,

and she does not possess the financial resources to care for these

children without tremendous public assistance. After 14 months, she has

never been able to visit her children without supervision. She struggles

with discipline even in this structured setting. She demonstrates very little

control over them, and they do not demonstrate any respect for her

authority.

21. There are no known relatives available that are proper

custodians for these children. Tuscarawas County, Case No. 2012 AP 12 0071 8

{¶15} Appellee concedes the statement in Finding of Fact No. 6 regarding

appellant's history of cocaine abuse was in error. Appellee's Brief at 9. The testimony

established appellant had at least a ten year addiction to cocaine, using two to three

times a month, not a week. T. at 6, 10-11, 188.

{¶16} Appellant argues in Finding of Fact No. 8, the trial court mentioned a

psychological evaluation not in the record. On December 22, 2012, a psychological

report of appellant was filed with the trial court and docketed as No. 30.

{¶17} Appellant argues in Finding of Fact No. 13, there was no evidence that the

domestic violence left emotional scars. However, Beth Ann Wanosik, a child therapist,

testified D.H. exhibited traumatic stress because of the living conditions. T. at 68.

{¶18} Appellant argues the trial court was incorrect in Finding of Fact No. 14 that

her problems had not been alleviated to any significant degree. Appellant has yet to

maintain one year of sobriety and has in fact had two cocaine relapses. T. at 9-11.

She has yet to obtain full time employment, and has a recent shoplifting charge. T. at

14-15, 19-20. Appellant disregarded Harbor House's clear procedures for using

narcotic drugs a week before the hearing. T. at 127-131, 171-173.

{¶19} In Finding of Fact No. 15, the trial court found appellant had been clean for

four months when in fact it was two months from the April 2012 relapse to the June

2012 permanent custody filing. Appellant argues the trial court erred in finding she

struggled with discipline and control at the supervised visits. Tera Ulrich-Hiple,

coordinator of the supervised visitation program, testified of the discipline problems at Tuscarawas County, Case No. 2012 AP 12 0071 9

visitation and appellant's lack of follow-through. T. at 92-93. Appellant has

demonstrated no improvement in this area. T. at 94.

{¶20} Appellant argues the trial court was incorrect in Finding of Fact No. 21 that

there were no known relatives to take custody of the children. A great-aunt of one of

the children, Nancy Reinemann, testified she was willing to care for the children. T. at

252. However, she did not make her presence known until one to two weeks before

the permanent custody hearing. T. at 257. Although Ms. Reinemann appears to

present as a good placement, she had only seen the children four times, the children

did not know who she was, and no home study was done because of the lateness of

the request. T. at 24-26, 264.

{¶21} We find appellant's objections and criticisms of the trial court's specific

findings to be de minimus at best and find they do not negate the trial court's findings of

fact and conclusions of law.

{¶22} The record demonstrates that appellant was given more than enough time

to rectify the issues that existed. She abused drugs until she was in inpatient treatment

and remained sober until a month after outpatient care. She continually contacted her

abuser and exposed her children and herself to domestic violence. Her visitations

were rocky and she showed a lack of discipline and follow-through with the children.

Although she tried to increase her income to support herself and the children, her

felony convictions and recent theft charge hindered her efforts.

{¶23} Upon review, we find clear and convincing evidence that another six

months would not have resolved the issues raised by appellant's own addictions

regardless of her well-meaning attempts. Tuscarawas County, Case No. 2012 AP 12 0071 10

{¶24} We note appellant did not challenge the trial court's findings on best

interest.

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

{¶26} The judgment of the Court of Common Pleas of Tuscarawas County,

Ohio, Juvenile Division is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

s/ Sheila G. Farmer________________

s/ William B. Hoffman______________

s/ John W. Wise__________________

JUDGES

SGF/sg 313 [Cite as In re D.H., 2013-Ohio-1170.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : D.H. AND D.P. : : NEGLECTED & DEPENDENT : JUDGMENT ENTRY CHILDREN : : : CASE NO. 2012 AP 12 0071

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

judgment of the Court of Common Pleas of Tuscarawas County, Ohio, Juvenile Division

is affirmed. Costs to appellant.