In re I.B.

2019 Ohio 3450

• Court: Ohio Court of Appeals
• Decided: August 26, 2019
• Docket: 2019 AP03 0011
• Status: Published

Opinion

[Cite as In re I.B., 2019-Ohio-3450.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF I.B., : JUDGES: DEPENDENT CHILD : Hon. Patricial A. Delaney, P.J. : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. : : : Case No. 2019 AP03 0011 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 17JN00357

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 26, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KAREN ROSS QUINLAN MICHAEL JOHNSON 389 16th Street SW 117 South Broadway New Philadelphia, OH 44663 P.O. Box 1007 New Philadelphia, OH 44663 For I. B. BRANDLE MCKINNEY-BUTCHER, DOUGLAS JACKSON PRO SE P.O. Box 188 2225 North Water Street Ext. Urichsville, OH 44683 Apt. 1 Urichsville, OH 44683 Guardian ad Litem

GERRIT M. DENHEIJER 222 W. Main Street Tuscarawas County, Case No. 2019 AP03 0011 2

Ravenna, OH 44266 Wise, Earle, J.

{¶ 1} Appellant-father (hereinafter "father") appeals the November 28, 2018

Judgment Entry of the Tuscarawas County Court of Common Pleas, Juvenile Court

Division, which terminated his parental rights with respect to his minor child, 14-year-old

I.B., and granted permanent custody of the child to appellee, Tuscarawas County Job

and Family Services (hereinafter “TCJFS”).

FACTS AND PROCEDURAL HISTORY

{¶ 2} TCJFS involvement with this family began before mother and father

divorced in 2016. In 2004, due to deplorable home conditions as well as medical and

physical neglect, all three children were removed and placed in foster care. They were

returned to mother and father in 2006. After mother and father's divorce, mother left

Tuscarawas County with the children, including I.B, the child at issue here. Their

whereabouts were unknown for a year.

{¶ 3} Mother returned to Tuscarawas County in 2017. She went to a shelter and

placed the children with S.M., an acquaintance from church. S.M filed for custody, but the

placement was ultimately found to be inappropriate.

{¶ 4} On November 3, 2017, TCJFS filed a motion for custody of I.B. On

November 28, the case was adjudicated and I.B was found to be a dependent child. A

guardian ad litem was appointed for I.B.

{¶ 5} A magistrate's decision was filed on December 12, 2017, ordering I.B into

the temporary custody of TCJFS. Tuscarawas County, Case No. 2019 AP03 0011 3

{¶ 6} Father desired custody of I.B but has not had custody of any of the children

since the divorce. He was granted supervised visitation during the pendency of this

matter, for one hour per week. A case plan was formulated for father which required him

to complete parent education classes, a psychological evaluation, sign required releases,

obtain and maintain safe, sanitary, and stable housing, stay current on mortgage and

utility payments, and maintain employment.

{¶ 7} On October 1, 2018, TCJFS filed a motion for permanent custody as neither

mother nor father could provide a stable, safe, and sanitary home for I.B.

{¶ 8} A permanent custody trial began on December 12, 2018. Mother stipulated

to the permanent custody motion indicating she understood it was within I.B's best

interest. Trial went forward on father's motion for custody.

{¶ 9} Father testified on his own behalf and admitted he has a housing problem.

As of the first day of trial, he was living with D.R., his girlfriend of 6 years, and her 3 adult

children. Father stated there was no room for I.B in D.R's home. In addition to having no

housing, father had no concrete plan as to how to care for I.B. such as enrolling him in a

good school and extracurricular activities, transporting I.B. to and from school and

activities, and supervision for I.B. while father worked.

{¶ 10} As of the second day of trial, February 5, 2019, father and D.R. had split up

and father was living in the marital property where mother had remained following the

divorce. The home is in uninhabitable condition. The property is water damaged due to a

leaking roof, there are holes in the walls, ceiling, and floors, and animal feces and trash

strewn throughout the home. Plumbing, floors and flooring, joists and walls all need

replaced. Although the home had been in father's possession since 2016, he did not begin Tuscarawas County, Case No. 2019 AP03 0011 4

to attempt to make the home livable again until October or November 2018, a year after

TCJFS filed its motion for permanent custody. Father testified that as of the second still

day of trial, the home was not suitable for I.B. Although the home now has heat and

electric, there is no running water, no bathroom, and no stove. Father cooks on a hot

plate. Ongoing TCJFS case worker Brittany Renner toured the home shortly before the

permanent custody hearing and described the home as uninhabitable.

{¶ 11} Due to father's distrust of government and educational systems, I.B. never

attended public schools. Mother home schooled I.B., but was not qualified to do so, nor

was the family financially able to provide the proper resources for home schooling. This

put I.B. severely behind academically as well as socially. In his foster home, I.B has been

thriving. He is very bright, and had become an A, B student in a challenging school district

where much is expected of him. He is also on the wrestling team. I.B still struggles,

however with social interactions.

{¶ 12} Father dropped out of school in the 10th grade. His reading and math skills

are at a first and second grade level respectively. Father did attend welding school and

has held steady work as a welder, wher he is well respected by his peers. I.B. idolizes his

father and desires to be a welder like his father. However, he also mimics father's other

behaviors such as refusing to brush his teeth, shower, or change his clothes.

{¶ 13} Renner testified that father completed all of the goals of his case plan except

for sharing his employment information and obtaining housing. Renner's concerns

besides housing were if custody were granted to father, I.B. would stop attending school

and continue to withdraw socially. Father told Renner he would "try" to keep I.B. in school. Tuscarawas County, Case No. 2019 AP03 0011 5

{¶ 14} These concerns were echoed by Dr. Anita Exley who completed a

psychological evaluation of father for the purpose of determining father's ability to take

custody of I.B. Father arrived at the appointment smelling badly and wearing filthy

clothing, only some of which could be attributed to his employment. Dr. Exley diagnosed

father with unspecified personality disorder. He exhibited features of many personality

styles, but nothing clear-cut. Father's specific issues – paranoid, fragmented, rigid

thinking, and erratic moods would make being a parent difficult even if father had support.

Father additionally has difficulty with empathy and lacks good parental judgment skills.

Because father has had limited contact with I.B in recent years Dr. Exley also had

concerns about father's ability to connect emotionally with I.B.

{¶ 15} Further, due to father's own educational deficits and distrust of government

organizations and public schools, Dr. Exley had concerns about father's ability to support

I.B.'s education. Dr. Exley concluded that due to father's lifestyle, lack of consistency, and

lack of safe, stable housing, moving from one hour per week visitation to full time custody

would be risky.

{¶ 16} Father obtained a second opinion from Dr. Gregory Emanuelson.

Emanuelson received Dr. Exley's evaluation and did not repeat her testing. He did not

request any information from TCJFS and was unaware that there had been prior

substantiated neglect of the children. At the time of his evaluation, Emanuelson had no

concerns about extending father's visitation with I.B. But given the new information

revealed to him during the hearing, he testified he would need further information before

making any recommendation regarding custody. Tuscarawas County, Case No. 2019 AP03 0011 6

{¶ 17} On February 27, the trial court issued its judgment entry granting TCJFS

permanent custody of I.B. Father now appeals that decision, raising two assignments of

error:

I

{¶ 18} "THE COURT ABUSED ITS DISCRETION IN AWARDING PERMANENT

CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY SERVICES FAILED

TO PROVIDE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD COULD

NOT BE PLACED WITH HIS FATHER IN A REASONABLE AMOUNT OF TIME, AND

THAT AN AWARD OF PERMANENT CUSTODY WAS IN THE CHILD'S BEST

INTEREST."

II

{¶ 19} "THE TRIAL COURT ABUSED ITS DISCRETION IN CONCLUDING THAT

I.B. WOULD TAKE ADVANTAGE OF HIS FATHER'S DEFICITS, INVOLVE HIMSELF IN

CRIMINAL BEHAVIOR, AND FAIL TO COMPLETE AN EDUCATION AS THE RECORD

FAILS TO PROVE BY CLEAR AND CONVINCING EVIDENCE THESE CONCLUSIONS

AND AWARD OF PERMANENT CUSTODY WAS NOT IN THE BEST INTEREST OF

THE CHILD."

{¶ 20} In his first assignment of error, appellant argues the trial court abused its

discretion in awarding permanent custody of I.B to TCJFS because TCJFS failed to prove

by clear and convincing evidence that I.B. could not be placed with father in a reasonable

amount of time or that the award of permanent custody was in I.B's best interest. We

disagree. Tuscarawas County, Case No. 2019 AP03 0011 7

{¶ 21} We set forth a trial court's process for analyzing a permanent custody

motion in In the Matters of: A.R., B.R., W.R., 5th Dist. Stark Nos 2018CA00091,

2018CA00097, 2018CA00098, 2019-Ohio-389, paraphrased as follows:

{¶ 22} When deciding a motion for permanent custody, a trial court must follow the

guidelines provided in R.C. 2151.414. R.C. 2151.414(A)(1) requires the trial court to

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶ 23} Following a hearing on the motion, R.C. 2151.414(B) authorizes the juvenile

court to grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply: (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; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period.

{¶ 24} 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 also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985).

“Where the degree of proof required to sustain an issue must be clear and convincing, a Tuscarawas County, Case No. 2019 AP03 0011 8

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.

{¶ 25} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) requires the trial court to consider all relevant factors, including, but not

limited to: (1) the interaction and interrelationship of the child with the child's parents,

siblings, relatives, foster parents 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; and (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.

{¶ 26} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶ 27} If the child is not abandoned or orphaned, as is the case here, the focus

turns to whether the child cannot be placed with either parent within a reasonable period

of time or should not be placed with the parents. Under R.C. 2151.414(E), the trial court

must consider all relevant evidence before making this determination. The trial court is

required to enter such a finding if it determines, by clear and convincing evidence, that

one or more of the factors enumerated in R.C. 2151.414(E)(1) through (16) exist with

respect to the child's parent or parents. Tuscarawas County, Case No. 2019 AP03 0011 9

{¶ 28} Relevant here, R.C. 2151.414(E)(1) states:

(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.

{¶ 29} Here, housing was the most pressing issue. Father argues he should be

given a 6-month extension of time to complete work on the house. But father regained

possession of the home in 2016. Then, following the opening of the instant case, father

had a full year to obtain safe, sanitary, stable housing for himself and I.B. He failed to

make any move to make the marital home inhabitable until a year after TCJFS filed its

motion for permanent custody.

{¶ 30} Further, father is working on restoring the home by himself or with

occasional help from a friend, and as funds become available. Father testified he works

full time and makes $30,000 a year. These facts, given father's history and the Tuscarawas County, Case No. 2019 AP03 0011 10

exceedingly poor condition of the home, do not bode well for father's ability to make the

home appropriate for I.B. at any point in the foreseeable future let alone 6 in months. Thus

we find the trial court's finding that I.B. could not be placed with father in reasonable time

despite the efforts of TCJFS is supported by clear and convincing evidence.

{¶ 31} Moreover, granting permanent custody to TCJFS was in I.B.'s best interest.

The fact that father worked his case plan and that I.B. and his father have a bond was not

lost on the trial court, nor is it lost on this court. However, father displayed little ability to

provide for I.B.'s basic daily needs, education, socialization, and supervision. Continuing

I.B.'s education is important and father has a record of resistance in this area. Indeed, it

was father who made the decision for mother to home school I.B. when mother was in no

way qualified to do so. Additionally, this was not the first time inadequate housing was an

issue for this family. In a year's time, father could have easily found suitable housing for

himself and I.B., but instead chose to live with his girlfriend where I.B. could not live. This

is evidence of Dr. Exley's observation that father has poor parental decision making skills.

{¶ 32} The record supports the trial court's grant of permanent custody to TCJFS.

The first assignment of error is overruled.

{¶ 33} In his second assignment of error, father takes issue with language used by

the trial court in its judgment entry, specifically "* * * [T]he Court finds it likely that Izaiah

would eventually take advantage of his father's deficits, involve himself in criminal

behavior, and fail to complete an education."

{¶ 34} Father argues this statement is contrary to the evidence before the court.

Insofar as I.B. engaging in criminal behavior, we agree there was no evidence presented Tuscarawas County, Case No. 2019 AP03 0011 11

at trial indicating I.B. being prone to such behavior or that father would encourage the

same. Nonetheless, we find this error harmless given our analysis and conclusions set

forth in the first assignment of error.

{¶ 35} Additionally in his second assignment of error, father reiterates arguments

raised in his first assignment of error. As we concluded above, the record supports the

trial court's conclusion that I.B. cannot be placed with his father in a reasonable amount

of time, and that a grant of permanent custody to TCJFS is in I.B.'s best interest.

{¶ 36} The second assignment of error is overruled.

{¶ 37} The judgment of the Tuscarawas County Court of Common Pleas Juvenile

Division is affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/rw