[Cite as In re J.D., 2013-Ohio-2712.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. J.D. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 13-CA-13 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2009-AB-0093
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Appellant For Appellee
AARON R. CONRAD JULIE S. BLAISDELL 120½ East Main Street 239 West Main Street Lancaster, OH 43130 Suite 101 Lancaster, OH 43130 For Roberta Prevette Guardian ad Litem ADRIENNE LARIMER 118 West Chestnut Street KRISTI McANAUL Lancaster, OH 43130 660 Hill Road North Pickerington, OH 43147 For J.D.
ALYSSA PARROTT 144 East Main Street Lancaster, OH 43130 Fairfield County, Case No. 13-CA-13 2
Farmer, J.
{¶1} On September 22, 2009, J.D., born March 2, 2002, was found to be a
dependent child and placed in the temporary custody of appellee, Fairfield County Child
Protective Services. Mother of the child is Roberta Prevette; father is appellant, Lucas
Davis.
{¶2} On March 10, 2011, appellee filed a motion for permanent custody of the
child. On August 17, 2012, appellant filed a motion requesting legal custody of the child
be placed with his half-sister, Echo Fox. Hearings were held on August 21, and
November 20, 2012. By entry filed January 8, 2013, the trial court denied appellant's
motion and granted permanent custody of the child to appellee. Findings of fact and
conclusions of law were attached to the entry.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
BEST INTERESTS [OF] J.D. TO PERMANENTLY TERMINATE THE PARENTAL
RIGHTS OF LUCAS DAVIS AND PLACE J.D. IN THE PERMANENT CUSTODY OF
FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES."
II
{¶5} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
GRANTING LEGAL CUSTODY OF J.D. TO ECHO FOX." Fairfield County, Case No. 13-CA-13 3
I, II
{¶6} Appellant claims the trial court erred in granting permanent custody of J.D.
to appellee as the evidence was not clear and convincing that custody with him or his
half-sister was not in J.D.'s best interests. We disagree.
{¶7} R.C. 2151.414(B) enables a trial court to grant permanent custody of a
child if the court determines by clear and convincing evidence that it is in the best
interests 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.
{¶8} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interests 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)
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; Fairfield County, Case No. 13-CA-13 4
(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, 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;
(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.
For the purposes of division (D)(1) of this section, 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. Fairfield County, Case No. 13-CA-13 5
{¶9} J.D. has been in appellee's temporary custody for twelve of the last
consecutive twenty-two months.
{¶10} On August 21, 2012, appellant filed stipulations wherein he admitted to a
lack of compliance with the case plans (Nos. 14, 20, and 21), a criminal history with
approximately twenty incarcerations from May 1998 to May 2012 (No. 28), and
placement with him was not possible within a reasonable time (Nos. 33, 34, and 35).
During the permanent custody hearing, appellant conceded he was unable to care for
J.D. and had not supported the child since April 2010. Day 1 T. at 107-108.
{¶11} The trial court incorporated appellant's stipulations into its findings of fact
and conclusions of law, and specifically found the following:
Lucas Davis has demonstrated little desire to work towards the
goals of the case plan. Although numerous services were offered to
Lucas Davis, he has not completed any of the goals of the case plan or
services provided to him.
Following the placement of [J.D.] outside her home and
notwithstanding reasonable case planning and diligent efforts by Fairfield
County Child Protective Services to assist Lucas Davis to remedy the
problems that initially caused the child to be placed outside the home,
Lucas Davis has failed continuously and repeatedly to substantially
remedy the conditions causing [J.D.] to be placed outside the home.
Lucas Davis did not utilize services and resources that were made
available to Lucas Davis for the purpose of changing parental conduct to
allow him to resume and maintain parental duties. Fairfield County, Case No. 13-CA-13 6
Lucas Davis has demonstrated a lack of commitment towards [J.D.]
by failing to regularly support, visit, or communicate with [J.D.] when able
to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for [J.D.].
Lucas Davis has been repeatedly incarcerated, and the repeated
incarceration prevents Lucas Davis from providing care for [J.D.].
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re J.D., 2013-Ohio-2712.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. J.D. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case No. 13-CA-13 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2009-AB-0093
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Appellant For Appellee
AARON R. CONRAD JULIE S. BLAISDELL 120½ East Main Street 239 West Main Street Lancaster, OH 43130 Suite 101 Lancaster, OH 43130 For Roberta Prevette Guardian ad Litem ADRIENNE LARIMER 118 West Chestnut Street KRISTI McANAUL Lancaster, OH 43130 660 Hill Road North Pickerington, OH 43147 For J.D.
ALYSSA PARROTT 144 East Main Street Lancaster, OH 43130 Fairfield County, Case No. 13-CA-13 2
Farmer, J.
{¶1} On September 22, 2009, J.D., born March 2, 2002, was found to be a
dependent child and placed in the temporary custody of appellee, Fairfield County Child
Protective Services. Mother of the child is Roberta Prevette; father is appellant, Lucas
Davis.
{¶2} On March 10, 2011, appellee filed a motion for permanent custody of the
child. On August 17, 2012, appellant filed a motion requesting legal custody of the child
be placed with his half-sister, Echo Fox. Hearings were held on August 21, and
November 20, 2012. By entry filed January 8, 2013, the trial court denied appellant's
motion and granted permanent custody of the child to appellee. Findings of fact and
conclusions of law were attached to the entry.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
BEST INTERESTS [OF] J.D. TO PERMANENTLY TERMINATE THE PARENTAL
RIGHTS OF LUCAS DAVIS AND PLACE J.D. IN THE PERMANENT CUSTODY OF
FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES."
II
{¶5} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
GRANTING LEGAL CUSTODY OF J.D. TO ECHO FOX." Fairfield County, Case No. 13-CA-13 3
I, II
{¶6} Appellant claims the trial court erred in granting permanent custody of J.D.
to appellee as the evidence was not clear and convincing that custody with him or his
half-sister was not in J.D.'s best interests. We disagree.
{¶7} R.C. 2151.414(B) enables a trial court to grant permanent custody of a
child if the court determines by clear and convincing evidence that it is in the best
interests 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.
{¶8} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interests 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)
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; Fairfield County, Case No. 13-CA-13 4
(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, 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;
(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.
For the purposes of division (D)(1) of this section, 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. Fairfield County, Case No. 13-CA-13 5
{¶9} J.D. has been in appellee's temporary custody for twelve of the last
consecutive twenty-two months.
{¶10} On August 21, 2012, appellant filed stipulations wherein he admitted to a
lack of compliance with the case plans (Nos. 14, 20, and 21), a criminal history with
approximately twenty incarcerations from May 1998 to May 2012 (No. 28), and
placement with him was not possible within a reasonable time (Nos. 33, 34, and 35).
During the permanent custody hearing, appellant conceded he was unable to care for
J.D. and had not supported the child since April 2010. Day 1 T. at 107-108.
{¶11} The trial court incorporated appellant's stipulations into its findings of fact
and conclusions of law, and specifically found the following:
Lucas Davis has demonstrated little desire to work towards the
goals of the case plan. Although numerous services were offered to
Lucas Davis, he has not completed any of the goals of the case plan or
services provided to him.
Following the placement of [J.D.] outside her home and
notwithstanding reasonable case planning and diligent efforts by Fairfield
County Child Protective Services to assist Lucas Davis to remedy the
problems that initially caused the child to be placed outside the home,
Lucas Davis has failed continuously and repeatedly to substantially
remedy the conditions causing [J.D.] to be placed outside the home.
Lucas Davis did not utilize services and resources that were made
available to Lucas Davis for the purpose of changing parental conduct to
allow him to resume and maintain parental duties. Fairfield County, Case No. 13-CA-13 6
Lucas Davis has demonstrated a lack of commitment towards [J.D.]
by failing to regularly support, visit, or communicate with [J.D.] when able
to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for [J.D.].
Lucas Davis has been repeatedly incarcerated, and the repeated
incarceration prevents Lucas Davis from providing care for [J.D.].
Lucas Davis concedes that he is not in a position to appropriately
parent [J.D.] within a reasonable time and that [J.D.] cannot be placed with
Lucas Davis within a reasonable time. This information is relevant to the
Court.
{¶12} We find the record clearly and unequivocally substantiates the trial court's
findings of fact and conclusions of law as to appellant's ability to care, support, and
nurture J.D.
{¶13} Appellant also argues that despite his failures, the trial court should have
granted legal custody to his relative placement, his half-sister, Echo Fox. In its findings
of fact filed January 8, 2013, the trial court found the following:
On August 17, 2012, Lucas Davis filed a motion requesting that
[J.D.] be placed in the legal custody of his half-sister, Echo Fox. This
motion was scheduled for a hearing on August 21, 2012 and November
20, 2012. Echo Fox did not appear before the Court on either hearing
date. Echo Fox lives in Indiana. When considering whether [J.D.] should
be placed with Echo Fox, the Court would require a home study from the Fairfield County, Case No. 13-CA-13 7
State of Indiana to determine whether the residence and environment of
Echo Fox would be appropriate for the placement of [J.D.]. There is no
such home study before the Court. [J.D.] has not had any contact with
Echo Fox since approximately 2006 or 2007. All this information is
relevant to the Court. Given these circumstances, the Court cannot find
that it is in the best interest of [J.D.] for her to be placed in the legal
custody of Echo Fox.
{¶14} In its entry filed January 8, 2013, the trial court determined the following:
At the conclusion of the testimony, Aaron Conrad, attorney for
Lucas Davis, made an oral motion to continue the father's motion for legal
custody to the paternal aunt, Echo Fox, until a later date, as Echo Fox did
not attend the hearing. The Court noted that Echo Fox has had two
opportunities to be present at the hearing on the motion to give her legal
custody of [J.D.], but Echo Fox did not attend the August 21, 2012
hearing, nor did she attend the November 20, 2012 hearing. Based on
her failure to attend and other information presented to the Court, the
Court OVERRULED Attorney Conrad's oral motion for a continuance.
{¶15} Ms. Fox lived in Indiana and did not request a home study. Day 2 T. at
50-51. She has had no contact with J.D. since 2009. Id. at 51.
{¶16} J.D. has bonded with her half-siblings and it is preferable to keep them
together. Day 2 T. at 56. In fact. J.D. wishes to be with her half-siblings. Day I T. at 82. Fairfield County, Case No. 13-CA-13 8
{¶17} Upon review, we find the trial court did not err in denying appellant's
motion for relative placement, and find the trial court had clear and convincing evidence
to find the best interests of the child was best served by granting permanent custody to
appellee.
{¶18} Assignments of Error I and II are denied.
{¶19} The judgment of the Court of Common Pleas of Fairfield County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_______________________________
JUDGES
SGF/sg 522 [Cite as In re J.D., 2013-Ohio-2712.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : J.D. : JUDGMENT ENTRY : : : : CASE NO. 13-CA-13
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, Juvenile division is
affirmed. Costs to appellant.