In re J.K.

2016 Ohio 1047

• Court: Ohio Court of Appeals
• Decided: March 14, 2016
• Docket: 2015CA00191 & 2015CA00194
• Status: Published

Opinion

[Cite as In re J.K., 2016-Ohio-1047.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Sheila G. Farmer, P.J. J.K. (DOB: 3/14/2006) : Hon. W. Scott Gwin, J. K.K. (DOB: 6/01/2013) : Hon. Patricia A. Delaney, J. : : : Case Nos. 2015CA00191 : 2015CA00194 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case Nos. 2014JCV00205 A & B

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 14, 2016

APPEARANCES:

For Appellant For Appellee

DAVID L. SMITH BRANDON J. WALTENBAUGH P.O. Box 20407 300 Market Avenue North Canton, OH 44701 Canton, OH 44702 Stark County, Case Nos. 2015CA00191 and 2015CA00194 2

Farmer, P.J.

{¶1} On March 5, 2014, appellee, Stark County Department of Job and Family

Services, filed complaints alleging J.K., born March 14, 2006, D.J., born July 17, 2007,

and K.K., born June 1, 2013, to be dependent, neglected, and/or abused children. Mother

of the children is appellant, Margaret Kolbs; father of J.K. is Charles Rogers and father of

K.K. is unknown.1

{¶2} Following an emergency shelter care hearing, the children were placed in

appellee's emergency temporary custody.

{¶3} An adjudicatory hearing was held on May 28, 2014, and the trial court found

the children to be abused. A dispositional hearing followed and the trial court placed the

children in appellee's temporary custody and a case plan was approved and adopted.

{¶4} On August 5, 2015, appellee filed motions for permanent custody. A

hearing was held on September 23, 2015. By judgment entry filed September 28, 2015,

the trial court terminated parental rights and granted appellee permanent custody of the

children. Findings of fact and conclusions of law were filed contemporaneously with the

judgment entry.

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

consideration.2 Assignment of error is as follows:

1D.J.is not a part of this appeal. The reference to "children" in this opinion refer to J.K. and K.K. only, unless otherwise noted. 2We note on February 8, 2016, appellee filed motions to dismiss the appeals for failure to prosecute. We deny the motions. Stark County, Case Nos. 2015CA00191 and 2015CA00194 3

I

{¶6} "THE COURT'S ORDER STATING THAT THE CHILDREN COULD NOT

BE PLACED WITH ANY BIOLOGICAL PARENT AT THE TIME OF TRIAL OR WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF

THE EVIDENCE."

{¶7} Appellant claims the trial court erred in finding the children could not be

placed with any biological parent within a reasonable amount of time as she was in a

position to completely comply with the case plan at the time of the permanent custody

hearing. We disagree.3

{¶8} 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. Stark No. CA–5758, 1982 WL 2911 (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). 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

3Although appellant's assignment of error states "any biological parent," appellant's brief makes arguments to her only, and notes "[t]he fathers were not involved in case plan services due to incarceration, and upon release, had little to no communication with the Department." Appellant's Brief at Statement of Facts and Case. Stark County, Case Nos. 2015CA00191 and 2015CA00194 4

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 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52; Eastley v.

Volkman, 132 Ohio St .3d 328, 2012-Ohio-2179. In weighing the evidence, however, we

are always mindful of the presumption in favor of the trial court's factual

findings. Eastley at ¶ 21.

{¶9} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part 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

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 Stark County, Case Nos. 2015CA00191 and 2015CA00194 5

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.

{¶10} R.C. 2151.414(B)(1)(d) specifically 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:

(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, 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. Stark County, Case Nos. 2015CA00191 and 2015CA00194 6

***

For the purposes of division (B)(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.

{¶11} 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.

{¶12} 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)

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: Stark County, Case Nos. 2015CA00191 and 2015CA00194 7

(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, 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.

{¶13} Appellant does not contest the fact that the children were placed in

appellee's temporary custody on March 5, 2014, adjudicated on May 28, 2014, and the Stark County, Case Nos. 2015CA00191 and 2015CA00194 8

permanent custody hearing was held on September 23, 2015. T. at 8. As found by the

trial court, the children have been in appellee's custody for over twelve months. R.C.

2151.414(B)(1)(d). It is appellant's position that she needs more time to become

compliant with the case plan.

{¶14} The trial court made over thirty specific findings relative to appellant's

cooperation or lack of cooperation with the case plan and the overnight visits with her

children.

{¶15} During the eighteen months the children were in appellee's temporary

custody, appellant demonstrated a haphazard, lackadaisical approach to the case plan.

T. at 11, 16, 45. Although appellant attempted to complete the case plan, she failed to

obtain psychological services, failed to keep appointments, and lacked follow through. T.

at 14, 16-19, 34-35, 45. She appeared nonplused of the consequences. T. at 35-36.

She did not engage with the children during visits and missed many important visitation

dates i.e., birthdays, holidays. T. at 16-17, 21-23.

{¶16} Appellee attempted three unsupervised overnight visits with the children at

appellant's residence. All three visits were unsuccessful because appellant failed to

follow the rules established for the overnights. T. at 24-32, 65-66. J.K. and D.J. showed

signs of PTSD symptoms due to being physically abused and witnessing physical abuse

upon appellant. T. at 31, 55-59, 61. Appellant does not appreciate their PTSD symptoms

as she failed to follow the rules set up to protect the children's safety during the home

visits. T. at 31, 65-66.

{¶17} Although appellant has stable housing, the conditions viewed immediately

prior to the permanent custody hearing indicated a home that was dirty, cluttered, and Stark County, Case Nos. 2015CA00191 and 2015CA00194 9

inappropriate for the children. T. at 33-34. Appellant has failed to demonstrate any

commitment to the children. T. at 35. J.K. and D.J. were afraid for their safety when with

appellant. T. at 61-62.

{¶18} Father of J.K. was incarcerated and has not participated in case plan

services. T. at 10. Father of K.K. is unknown. An alleged father has refused paternity

testing and does not want to be involved. T. at 9.

{¶19} As for best interest, the children are placed together in foster care, are doing

well, and their needs are being met. T. at 70, 76-77. The caseworker opined the children

would benefit from adoption. T. at 80. The children have been in appellee's custody for

over twelve months. R.C. 2151.414(D)(1)(c).

{¶20} "When granting permanent custody under R.C. 2151.414(B)(1)(d), the trial

court need not find that the child cannot or should not be placed with either parent within

a reasonable time since such a finding is implicit in the time frame provided in the

statute." In re Myers Children 4th Dist. Athens No. 03CA23, 2004-Ohio-657, ¶ 10. We

note "only one of the factors set forth in R.C. 2151.414(D) needs to be resolved in favor

of the award of permanent custody in order for the court to terminate parental rights." In

re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 56. Nevertheless, the trial court

also found by clear and convincing evidence that the children could not be placed with

appellant within a reasonable time nor should the children be placed with her.

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

trial court's decision in granting permanent custody of the children to appellee.

{¶22} The sole assignment of error is denied. Stark County, Case Nos. 2015CA00191 and 2015CA00194 10

{¶23} The judgment of the Court of Common Pleas of Stark County, Ohio, Family

Court Division is hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Delaney, J. concur.

SGF/sg 219