In re D.K.

2022 Ohio 1429

• Court: Ohio Court of Appeals
• Decided: April 29, 2022
• Docket: 2021CA0026
• Status: Published

Opinion

[Cite as In re D.K., 2022-Ohio-1429.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: D.K. : JUDGES: : Hon. Earle E. Wise, Jr., P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2021CA0026 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21930086

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 29, 2022

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

FREDERICK A. SEALOVER SARA R. CHISNELL P.O. Box 2910 725 Pine Street Zanesville, OH 43702-2910 Coshocton, OH 43812 Coshocton County, Case No. 2021CA0026 2

Wise, Earle, P.J.

{¶ 1} Appellant-father, C.K., appeals the November 5, 2021 judgment entry of the

Court of Common Pleas of Coshocton County, Ohio, Juvenile Division, terminating his

parental rights and granting permanent custody of his child to appellee, Coshocton

County Job and Family Services.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 17, 2019, appellee filed a complaint alleging a child to be

dependent and neglected: D.K. born in March 2013. Father is C.K., appellant herein;

mother is J.S. It was alleged that father was incarcerated and mother had substance

abuse issues. Appellee sought temporary custody of the child to the child's maternal

grandmother, D.S., with protective supervision to the agency.

{¶ 3} On October 29, 2019, appellee requested emergency temporary custody of

the child. By judgment entry filed same date, the trial court granted the request. A shelter

care hearing was held the next day. By judgment entry filed November 4, 2019, the trial

court ordered that the child shall remain in appellee's emergency temporary custody due

to maternal grandmother's failure to comply with the safety plan in place.

{¶ 4} Adjudicatory and dispositional hearings were held on January 8, 2020,

wherein the parents admitted to dependency. By judgment entry filed July 22, 2020, the

trial court continued appellee's temporary custody of the child.

{¶ 5} On April 21, 2021, appellee filed a motion for permanent custody of the

child. Hearings were held on June 24, and 25, and October 29, 2021. By judgment entry

filed November 5, 2021, the trial court terminated the parents' parental rights and granted

appellee permanent custody of the child. Coshocton County, Case No. 2021CA0026 3

{¶ 6} Appellant-father filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 7} "THE TRIAL COURT ERRED BY FINDING THAT THE BEST INTEREST

OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT

CUSTODY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED."

{¶ 8} In his sole assignment of error, appellant claims the trial court erred in

finding the best interest of the child would be best served by granting permanent custody

of the child to appellee against the manifest weight of the evidence. We disagree.

{¶ 9} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: 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

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the

Supreme Court of Ohio explained the following:

Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the Coshocton County, Case No. 2021CA0026 4

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis sic.)

{¶ 10} In weighing the evidence however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

{¶ 11} R.C. 2151.414(B)(1) states permanent custody may be granted if the trial

court determines, by clear and convincing evidence, that it is in the best interest of the

child and:

(a) The child is not abandoned or orphaned * * * 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 * * *.

(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 Coshocton County, Case No. 2021CA0026 5

abused, neglected, or dependent child on three separate occasions by any

court in this state or another state.

{¶ 12} 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, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (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.

{¶ 13} R.C. 2151.414(E) sets out the factors relevant to determining whether a

child cannot be placed with either parent within a reasonable period of time or should not

be placed with the parents. Said section states in pertinent part to appellant the following:

(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 Coshocton County, Case No. 2021CA0026 6

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.

(12) The parent is incarcerated at the time of the filing of the motion

for permanent custody or the dispositional hearing of the child and will not

be available to care for the child for at least eighteen months after the filing

of the motion for permanent custody or the dispositional hearing.

(16) Any other factor the court considers relevant.

{¶ 14} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child:

(D)(1) In determining the best interest of a child at a hearing held

pursuant to division (A) of this section or for the purposes of division (A)(4) Coshocton County, Case No. 2021CA0026 7

or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised

Code, the court shall consider all relevant factors, including, but 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.

{¶ 15} For the purposes of R.C. 2151.414(B)(1), "a child shall be considered to

have entered the temporary custody of an agency on the earlier of the date the child is

adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days

after the removal of the child from home." Coshocton County, Case No. 2021CA0026 8

{¶ 16} Appellant does not contest the fact that the child was placed in appellee's

emergency temporary custody on October 29, 2019, the child was adjudicated and

remained in appellee's temporary custody on July 22, 2020, the motion for permanent

custody was filed on April 21, 2021, and hearings on permanent custody were held on

July 24, and 25, and October 29, 2021. As correctly found by the trial court, the child has

been in appellee's custody for over twelve months of a consecutive twenty-two-month

period. R.C. 2151.414(B)(1)(d).

{¶ 17} Having made this finding, the trial court was not required to make findings

under R.C. 2151.414(E). See, In re DA.J., 8th Dist. Cuyahoga No. 110393, 2021-Ohio-

3102, ¶ 61. Nevertheless, the trial court additionally found reasonable efforts had been

made to prevent the removal of the child from the home, the child "cannot be placed with

the Child's parents within a reasonable period of time and should not be placed with either

parent pursuant to ORC Ann. 2151.414(E)," and made findings consistent with several

factors under subsection (E). Most notably regarding appellant, the trial court found he

"has been incarcerated for drug trafficking convictions the duration of the Case" and he

is "unable to meet the basic needs of the Child."

{¶ 18} The central theme in appellant's appellate brief is that permanent custody

was not in the child's best interest given mother's strides in the months preceding the

permanent custody hearings. Many of the arguments pertain to mother; however, this is

not mother's appeal, but father's. Appellant does argue the agency did not maintain

contact with him and did not permit him to have "even the most minimal telephone

contact" with the child. Appellant's Brief at 11. Appellant argues appellee "did not meet

its burden to provide reasonable efforts toward reunification and any finding to the

contrary was against the manifest weight of the evidence." Id. Coshocton County, Case No. 2021CA0026 9

{¶ 19} During the July 24, and 25, and October 29, 2021 hearings, the trial court

heard from several caseworkers including the ongoing family caseworker, a psychologist

that performed evaluations for the agency, the Coshocton County drug court coordinator,

a social worker from Coshocton Behavioral Health Choices, the guardian ad litem for the

child, the child's foster mother, and appellant. As explained by our brethren from the

Second District in In re A.J.S. & R.S., 2d Dist. Miami No. 2007CA2, 2007-Ohio-3433, ¶

22:

Accordingly, issues relating to the credibility of witnesses and the

weight to be given the evidence are primarily for the trier of fact. In this

regard, "[t]he underlying rationale of giving deference to the findings of the

trial court rests with the knowledge 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." Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77,

80, 461 N.E.2d 1273. Finally, an appellate court must adhere to every

reasonable presumption in favor of the trial court's judgment and findings of

fact. In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240, citing

Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638

N.E.2d 533.

{¶ 20} Further, " 'the 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 Coshocton County, Case No. 2021CA0026 10

court's determination will have on the lives of the parties concerned.' " In re Mauzy

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, *2 (Nov. 13, 2000),

quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).

{¶ 21} In its judgment entry filed November 5, 2021, the trial court noted appellant

appeared by audio and video from the Madison Correctional Institution. The trial court

found appellant has been incarcerated on drug trafficking convictions during the entire

case. Appellant was arrested on January 29, 2019, after his home was under

investigation for drug trafficking, the home wherein the child resided. T. at 11. Appellant

was found with drugs in his possession. Id. He was incarcerated on June 11, 2019. T.

at 41, 57. His release date is January 2023. T. at 128, 254. Appellant "will not be

available to care for the child for at least eighteen months after the filing of the motion for

permanent custody [April 21, 2021] or the dispositional hearing [January 8, 2020]." R.C.

2151.414(E)(12). He is unable to meet the basic needs of the child. These findings are

amply supported in the record. T. at 5-6, 11-12, 36, 41-42, 57, 91-92, 128-129, 156-157,

234, 254.

{¶ 22} At the time of the July 24, 2021 hearing, appellant's last potential contact

with his child was 737 days before the hearing other than letters appellant sent to the

child; mother's last contact was 515 days before the hearing and 808 days since she had

been responsible for caring for her child. T. at 55, 130, 256-257, 270. The child does not

meet the requirements for a planned permanent living arrangement [R.C.

2151.353(A)(5)], and no one was available for kinship placement. T. at 30-31, 54.

{¶ 23} As for best interest, the trial court found the child was in need of a legally

secure placement which can only be obtained through a grant of permanent custody to

appellee. The child has developed a significant bond with his foster parents, and it is Coshocton County, Case No. 2021CA0026 11

expected that the foster parents will provide permanency through adoption. Again, the

trial court's findings are amply supported in the record. T. at 31, 58, 111-113, 238-241,

248-250, 274-275.

{¶ 24} The guardian ad litem testified the child is happy and thriving in the foster

home. T. at 239-240. The guardian recommended granting permanent custody of the

child to appellee because the child was in need of a legally secure and permanent

placement and it was in the child's best interest. T. at 241.

{¶ 25} While we commend appellant's efforts to communicate with his child during

his incarceration, his incarceration prevented him from taking care of his child while the

child's mother was dealing with substance abuse problems. "Although it is apparent that

Father loves his child and desires to care for the child * * * 'the mere existence of a good

relationship is insufficient. Overall, we are concerned with the best interest of the child,

not the mere existence of a relationship.' " In re W.C., 8th Dist. Cuyahoga No. 90748,

2008-Ohio-2047, ¶ 26, quoting In re R.N., 8th Dist. Cuyahoga No. 83121, 2004-Ohio-

2560, ¶37.

{¶ 26} Upon review, we find sufficient clear and convincing evidence to support the

trial court's decision to terminate appellant's parental rights and grant appellee permanent

custody of the child, and do not find any manifest miscarriage of justice.

{¶ 27} The sole assignment of error is denied. Coshocton County, Case No. 2021CA0026 12

{¶ 28} The judgment of the Court of Common Pleas of Coshocton County, Ohio,

Juvenile Division, is affirmed.

By Wise, Earle, P.J.

Delaney, J. and

Baldwin, J. concur.

EEW/db [Cite as In re D.K., 2022-Ohio-1429.]