In re JC

2012 Ohio 3939

Opinion

[Cite as In re JC, 2012-Ohio-3939.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: IN THE MATTER OF: : Patricia A. Delaney, P.J. : William B. Hoffman, J. J.C., S.C., AND B.M. : Julie A. Edwards, J. : : Case No. 2012CA00051 : : : OPINION

CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas Case, Juvenile Division, No. 2010JCV01439

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 27, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JIM PHILLIPS MARY G. WARLOP Stark County Department of Job & Abney Law Office, LLC Family Services Legal Counsel 116 Cleveland Ave., N.W., Suite 500 110 Central Plaza South, Suite 400 Canton, Ohio 44702 Canton, Ohio 44702 [Cite as In re JC, 2012-Ohio-3939.]

Edwards, J.

{¶1} Appellant, Julie Carnes, appeals a judgment of the Stark County Common

Pleas Court, Juvenile Division, awarding permanent custody of her children J.C. (dob

7/23/2000) and B.M. (dob 11/25/2007) to appellee Stark County Department of Job and

Family Services and awarding legal custody of her daughter S.C. (dob 1/4/2002) to a

third party.

STATEMENT OF FACTS AND CASE

{¶2} From August, 2009, to June 25, 2010, appellee attempted to work with

appellant on a non-court basis regarding concerns that she missed J.C.’s mental health

appointments, did not have utilities, and physical and sexual abuse was occurring in the

home. J.C. was exhibiting aggressive and suicidal behavior. On June 25, 2010,

appellee filed a complaint requesting that J.C. be placed in the temporary custody of

appellee and that protective supervision be granted over S.C. and B.M. The children

were found to be dependent on August 30, 2010, and the agency’s request was

granted. On October 25, 2010, S.C. and B.M. were also placed in the temporary

custody of the agency, and all three children remained in the custody of the agency

during the pendency of the case.

{¶3} Appellant’s case plan required her to complete a parenting evaluation at

Northeast Ohio Behavioral Health, complete a drug and alcohol assessment, complete

Goodwill Parenting, complete Renew, and maintain stable housing and employment.

{¶4} Appellant completed the parenting evaluation at Northeast Ohio

Behavioral Health. The examiner recommended that the children be removed from

appellant’s care. Due to appellant’s cognitive limitations, the examiner could not make Stark County App. Case No. 2012CA00051 3

any recommendations to deal with appellant’s parenting practices in a way that would

allow reunification with her children. The examiner had very grave concerns about

appellant’s ability to deal with the profound developmental disabilities and emotional

problems of the children and was concerned appellant did not have the insight

necessary to provide a safe home environment.

{¶5} Appellant completed Goodwill Parenting, but the instructor could not

recommend that the children be returned to her custody. Her instructor indicated that

due to appellant’s cognitive limitations, it was difficult to determine the level of her

comprehension and understanding of the material. She understood things only in a

very concrete manner and had difficulty adapting the materials to fit specific

circumstances.

{¶6} To address appellant’s history of involvement in abusive relationships, she

participated in counseling at Renew. She completed the education group and

counseling, but her prognosis was guarded because she had limited insight as to how to

apply the knowledge she gained from the program to her personal relationships. In

spite of the resources made available to her beginning in August, 2009, she continued

to involve herself in relationships with men with criminal histories which resulted in

domestic violence. She was aware that S.C.’s father, who was in prison at the time of

the hearing in the instant case, was touching S.C. in an inappropriate manner. The

children expressed concerns about excessive physical discipline and emotional abuse.

{¶7} S.C. suffers from post traumatic stress and receives counseling due to

sexual abuse by her father, exposure to domestic violence, parental substance abuse,

mental and physical abuse, and neglect. Her interaction with her custodians was very Stark County App. Case No. 2012CA00051 4

good, and she made progress in school during her placement with them. She stated

that it’s not safe for her to live with her mother, and her placement parents make her

feel special.

{¶8} J.C. suffers from pervasive developmental delays. He was hospitalized in

Akron Children’s Hospital for psychiatric treatment on multiple occasions. He greatly

improved while in foster care, and his behavior and attitude had changed dramatically.

His anxiety significantly decreased, he verbalized his emotions more effectively and

most of the time behaved appropriately. His grades improved and his level of

functioning while in therapeutic foster care was the most stable he had been since he

was admitted to Child and Adolescent Behavioral Health for treatment.

{¶9} B.M. has speech delays and cognitive delays. He has an Individualized

Education Plan and is in speech therapy. His speech significantly improved after his

placement in foster care.

{¶10} Following an evidentiary hearing, the trial court found that the children

could not be placed with appellant within a reasonable time, and that the best interests

of J.C. and B.M. required an award of permanent custody to appellee. The trial court

also granted legal custody of S.C. to the people she is placed with. Appellant appeals,

assigning three errors:

{¶11} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Stark County App. Case No. 2012CA00051 5

{¶12} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS

SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN

THE BEST INTERESTS OF THE MINOR CHILDREN TO GRANT PERMANENT

CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶13} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

GRANTING LEGAL CUSTODY OF S.C. TO THIRD PARTIES AS SUCH DECISION

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SCDJFS FAILED

TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT SUCH DECISION WAS

IN S.C.’S BEST INTEREST.”

I

{¶14} In her first assignment of error, appellant argues that the court’s finding

that the children could not be placed in her custody within a reasonable period of time is

against the manifest weight of the evidence.

{¶15} A trial court's decision to grant permanent custody of a child must be

supported by clear and convincing evidence. The Ohio Supreme Court has defined

“clear and convincing evidence” as “[t]he measure or degree of proof that will produce in

the mind of the trier of fact a firm belief or conviction as to the allegations sought to be

established. It is intermediate, being more than a mere preponderance, but not to the

extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”

Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118; In re: Adoption of Holcomb

(1985), 18 Ohio St.3d 361, 481 N.E.2d 613. Stark County App. Case No. 2012CA00051 6

{¶16} In reviewing whether the trial court based its decision upon clear and

convincing evidence, “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.”

State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60; See also, C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. If the trial

court's judgment is “supported by some competent, credible evidence going to all the

essential elements of the case,” a reviewing court may not reverse that judgment.

Schiebel, 55 Ohio St.3d at 74, 564 N.E.2d 54.

{¶17} Moreover, “an appellate court should not substitute its judgment for that of

the trial court when there exists competent and credible evidence supporting the

findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses

and the weight to be given the evidence are primarily for the trier of fact. As the court

explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273:

{¶18} “The 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.”

{¶19} Moreover, deferring to the trial court on matters of credibility is “crucial in a

child custody case, where there may be much evident in the parties' demeanor and

attitude that does not translate to the record well.” Davis v. Flickinger (1997), 77 Ohio

St.3d 415, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No. 04CA10,

2004-Ohio-3146; In re: C. W., Montgomery App. No. 20140, 2004-Ohio-2040. Stark County App. Case No. 2012CA00051 7

{¶20} Pursuant to 2151.414(B)(1), the court may grant permanent custody of a

child to the movant if the court determines “that it is in the best interest of the child to

grant permanent custody to the agency that filed the motion for permanent custody and

that any of the following apply:

{¶21} “(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,

... and the child cannot be placed with either of the child's parents within a reasonable

period of time or should not be placed with the child's parents.* * *”

{¶22} Revised Code 2151.414(E) sets forth the factors a trial court must

consider in determining whether a child cannot or should not be placed with a parent

within a reasonable time. If the court finds, by clear and convincing evidence, the

existence of any one of the following factors, “the court shall enter a finding that the

child cannot be placed with [the] parent within a reasonable time or should not be

placed with either parent”:

{¶23} “(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 parent to remedy the problem that initially caused the child to be placed outside the

home, the parents have failed continuously and repeatedly to substantially remedy the

conditions that caused the child to be placed outside the child's home. In determining

whether the parents have substantially remedied the 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 Stark County App. Case No. 2012CA00051 8

for the purpose of changing parental conduct to allow them to resume and maintain

parental duties.* * *

{¶24} “(16) Any other factors the court considers relevant.”

{¶25} A trial court may base its decision that a child cannot or should not be

placed with a parent within a reasonable time upon the existence of any one of the R.C.

2151.414(E) factors. The existence of one factor alone will support a finding that the

child cannot be placed with the parent within a reasonable time. See In re: William S.

(1996), 75 Ohio St.3d 95, 661 N.E.2d 738; In re: Hurlow (Sept. 21, 1998), Gallia App.

No. 98 CA 6, 1998 WL 655414; In re: Butcher (Apr. 10, 1991), Athens App. No. 1470,

1991 WL 62145.

{¶26} Appellant argues that she complied with the case plan, and if the risk she

posed to her children was not remedied by these services, then the agency should have

provided other services.

{¶27} The trial court found that appellant complied with the case plan. However,

the evidence was undisputed that she did not remedy the problems which caused the

children to be placed outside the home in spite of her compliance with the case plan.

{¶28} Appellant completed the parenting assessment at Northeast Ohio

Behavioral Health, but the examiner recommended that the children not be placed in

appellant’s custody. The examiner found appellant to be cognitively limited and she

could not recommend any services that would allow appellant to reunify with the

children due to the severe nature of appellant’s parenting practices. The Goodwill

instructor did not recommend that the children be returned. The instructor testified that

appellant had difficulty controlling her children during visits and became frustrated Stark County App. Case No. 2012CA00051 9

during visits. While she received a certificate of completion, the certificate was the next

to the lowest one available, and to have received the lowest certificate, appellant would

have had to have done nothing. At the time of the hearing, appellant did not have

stable housing. Appellant was discharged from the Renew program after reaching

maximum therapeutic gain, but concerns continued that she could not put what she

learned into practice. She had been involved in violent relationships in the past and the

issue of domestic violence was an ongoing concern, putting the children at risk of

continued harm. S.C. was sexually abused by her father, but appellant allowed the

father to have contact with S.C. even after appellant learned of the abuse. The

evidence established that after two years of services, appellant failed to understand the

risk of harm her behavior caused the children, and continued to believe the children

were removed for “bullshit reasons.” Tr. 23.

{¶29} Appellant also argues that other case plan services should have been

made available to her. The case plan was reviewed every six months, yet appellant at

no point before the permanent custody trial suggested that different services should

have been made available. While appellant attended all programs made available to

her, she was unable to internalize and apply the information she received. The record

does not demonstrate that if she had been offered different case plan services, the

result would have been different. In fact, the examiner at Northeast Ohio Behavioral

Health could not come up with any services to recommend which would make

reunification possible.

{¶30} The first assignment of error is overruled. Stark County App. Case No. 2012CA00051 10

II

{¶31} In her second assignment of error, appellant argues that the court’s finding

that a grant of permanent custody was in the best interests of J.C. and B.M. is against

the manifest weight of the evidence.

{¶32} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (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.

{¶33} When the case opened, J.C. was a very aggressive child, who had

threatened to kill his family and himself. He had been hospitalized in the psychiatric unit

of Akron Children’s Hospital several times. After being in foster care for a year and a

half, he was no longer aggressive and acted like a different child. His therapist reported

that J.C. was functioning at his most stable and recommended that the child not be

returned to appellant. J.C. had not visited with appellant in almost a year at the time of

trial on the recommendation of his therapist. He has limited telephone contact with

appellant, but when he does talk to appellant, he acts out. He has very little bond with

appellant, and his foster parents have expressed a desire to adopt him. Stark County App. Case No. 2012CA00051 11

{¶34} B.M. was very delayed and had speech problems when removed from

appellant’s custody. While he still has speech problems, his speech has improved since

he entered foster care and he has an IEP in preschool to address his developmental

issues. He is very bonded to his foster parents and they have expressed a desire to

adopt him.

{¶35} The court’s finding that a grant of permanent custody of J.C. and B.M. to

appellee was in the best interests of the children was not against the manifest weight of

the evidence. The second assignment of error is overruled.

III

{¶36} Appellant argues that the court erred in awarding legal custody of S.C. to

her foster parents.

{¶37} This Court has set forth the standard of review regarding a grant of legal

custody to a non-parents:

{¶38} “The statutory scheme regarding an award of legal custody does not

include a specific test or set of criteria, and a trial court must base its decision on the

best interest of the child. In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, at ¶ 23. The

factors listed in R.C. 2151.414 may provide some guidance in determining whether a

grant of legal custody is in the best interest of the children. In re T.A., 9th Dist. No.

22954, 2006-Ohio-4468, at ¶ 17.

{¶39} “In In re Fulton, 12th Dist. No. CA2002-09-236, 2003-Ohio-5984, at ¶ 11,

the Twelfth District Court of Appeals addressed a legal custody determination between

parents in a neglect situation. The Fulton Court indicated, when determining the issue of

legal custody, courts should consider the totality of the circumstances, including Stark County App. Case No. 2012CA00051 12

relevant factors of R.C. 3109.04(F). The Fulton Court, however, cautioned there is no

statutory mandate those factors must be expressly considered and balanced together

before fashioning an award of custody. Fulton, 2003-Ohio-5984, at ¶ 11. Accordingly, in

legal custody cases, trial courts should consider all factors relevant to the best interest

of the child.” In re A.P., 5th Dist. No. 2010CA00302, 2011-Ohio-441, ¶33-34.

{¶40} In the instant case, the evidence as reviewed above demonstrated that

appellant completed her case plan as far as participation, but failed to internalize the

information and apply it so as to remedy the conditions that led to the removal of the

children from the home. S.C. suffers from post traumatic stress and receives counseling

for sexual abuse by her father, exposure to domestic violence, parental substance

abuse, mental and physical abuse, and neglect. Her interaction with her custodians

was very good, and she made progress in school during her placement with them. Her

treating therapist recommended that S.C. remain with her foster parents. The court

conducted an interview with S.C., and she indicated that she did not believe it was safe

for her to live with appellant and she wanted to remain with her foster parents. S.C. had

been sexually abused by her father, and despite knowledge of the abuse, appellant

continued to allow him to have contact with S.C. The trial court’s finding that an award

of legal custody of S.C. to her foster parents was in the best interests of S.C. is not

against the manifest weight of the evidence. Stark County App. Case No. 2012CA00051 13

{¶41} The third assignment of error is overruled.

{¶42} The judgment of the Stark County Common Pleas Court, Juvenile

Division, is affirmed.

By: Edwards, J.

Delaney, P.J. and

Hoffman, J. concur

______________________________

JUDGES

JAE/r0619 [Cite as In re JC, 2012-Ohio-3939.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : J.C., S.C., AND B.M. : : : : JUDGMENT ENTRY : : : : CASE NO. 2012CA00051

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

judgment of the Stark County Court of Common Pleas, Juvenile Division, is affirmed.

Costs assessed to appellant.

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