In re N.R.S.

2018 Ohio 125

• Court: Ohio Court of Appeals
• Decided: January 16, 2018
• Docket: 3-17-07, 08, 09
• Status: Published

Opinion

[Cite as In re N.R.S., 2018-Ohio-125.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

IN RE: CASE NO. 3-17-07 N.R.S.,

ADJUDGED ABUSED CHILD. OPINION [JAMES STEVEY - APPELLANT]

IN RE: CASE NO. 3-17-08 J.N.S.,

ADJUDGED DEPENDENT CHILD. OPINION [JAMES STEVEY - APPELLANT]

IN RE: CASE NO. 3-17-09 K.H.S.,

Appeals from Crawford County Common Pleas Court Juvenile Division Trial Court Nos. 2175051, 2175049 and 2155125

Judgments Affirmed

Date of Decision: January 16, 2018 Case Nos. 3-17-07, 3-17-08, 3-17-09

APPEARANCES:

Brian N. Gernert for Appellant, James Stevey

Michael J. Wiener for Appellee

ZIMMERMAN, J.

{¶1} This is an appeal from the August 11, 2017 judgment entry of the

Crawford County Court of Common Pleas, Juvenile Division, awarding permanent

custody of N.R.S., J.N.S. and K.H.S., all minor children, to Crawford County

Children Services (“CCCS”). Appellant, James Stevey (“James”), natural father of

all three children, appeals.

Facts and Procedural History

{¶2} On September 8, 2015, CCCS filed three (3) separate complaints for

abuse and/or dependency in the trial court, requesting the temporary custody of

N.R.S., J.N.S. and K.H.S. The complaint alleged abuse in N.R.S.’s case, alleging

her to be the victim of sexual abuse. The complaints regarding J.N.S. and K.H.S.

alleged them to be dependent children. (Doc. 1). Upon the filing of the complaints,

the trial court conducted a shelter care hearing and placed all three children into the

temporary custody of CCCS. At the time of the hearing, the children had been in

the legal custody of their paternal grandparents.1

1 A review of the record shows that the paternal grandparents were awarded legal custody of N.R.S., J.N.S. and K.H.S. in February, 2014 through the Belmont County Juvenile Court. (Tr. 42).

-2- Case Nos. 3-17-07, 3-17-08, 3-17-09

{¶3} On October 1, 2015, an adjudicatory hearing was conducted in the trial

court. At the hearing, James stipulated that N.R.S. was an abused child and that

J.N.S. and K.H.S. were dependent children. Thus, the trial court adjudicated the

children as such.2 The parties agreed to proceed to disposition immediately

following the adjudicatory hearing.3 At the dispositional hearing, the trial court

awarded temporary custody of N.R.S., J.N.S. and K.H.S. to CCCS, terminated the

paternal grandparents grant of legal custody and dismissed them as parties. (Docs.

26, 27). The children were then placed into a foster home by CCCS.

{¶4} On September 2, 2016, CCCS filed a motion to modify the dispositional

orders by requesting that temporary custody of N.R.S., J.N.S. and K.H.S.be placed

with their paternal aunt. (Doc. 43). All parties agreed to the placement and, in its

September 6, 2016 judgment entry, the trial court terminated its temporary custody

to CCCS and awarded temporary custody of the children to their paternal aunt with

protective supervision to CCCS. (Doc. 44).

{¶5} Thereafter, on November 14, 2016, CCCS filed a motion in the trial

court to place N.R.S., J.N.S. and K.H.S. into the legal custody of their paternal aunt

and to close its case. CCCS’s motion was set for hearing on December 14, 2016.

However, at the hearing CCCS withdrew the motion and requested that the

2 The record reflects that the children’s mother was served with proper notice of the adjudicatory hearing but failed to appear. As James is the parent bringing this appeal, we will proceed by analyzing this appeal as it relates to James only. 3 The father waived the statutory 24 hour waiting period as set forth in R.C. 2151.35.

-3- Case Nos. 3-17-07, 3-17-08, 3-17-09

temporary custody order (to the paternal aunt with protective supervision to CCCS)

continue. In its judgment entry of January 11, 2017, the trial court extended the

temporary custody order until April 1, 2017. (Doc. 51).

{¶6} Thereafter, on January 26, 2017, CCCS filed another motion for

modification, this time requesting the trial court to terminate the paternal aunt as the

temporary custodian of N.R.S., J.N.S. and K.H.S. In its motion, CCCS requested

that temporary custody of N.R.S., J.N.S. and K.H.S. be returned to the agency due

to the inability of the paternal aunt to provide adequate care for the children. (Doc.

52). The trial court granted CCCS’s request on March 6, 2017. (Doc. 54).

{¶7} On March 28, 2017, CCCS filed its motion for the permanent custody

of N.R.S., J.N.S. and K.H.S. pursuant to R.C. 2151.414 and the case was set for a

permanent custody hearing to commence May 18, 2017. However, due to the failure

of service upon James, the hearing was rescheduled by the trial court. Ultimately,

service upon James was perfected on May 16, 2017.

{¶8} On August 10, 2017, a permanent custody hearing occurred in the trial

court and on August 11, 2017, the trial court issued its judgment entry granting the

permanent custody of N.R.S., J.N.S. and K.H.S. to CCCS. Although she was served

with notice of the permanent custody hearing, Rhonda Stevey, the mother of the

children, did not attend. Furthermore, due to his incarceration, James did not attend

the hearing. However, his attorney was present on his behalf.

-4- Case Nos. 3-17-07, 3-17-08, 3-17-09

{¶9} James appeals the entry of permanent custody, raising the following

assignments of error for our review.

ASSIGNMENT OF ERROR NO. I

CRAWFORD COUNTY DEPARMTNET (sic) OF JOB AND FAMILY SERVICES DID NOT ACT IN GOOD FAITH/MAKE A GOOD FAITH EFFORT TO REUNIFY PARENT AND CHILD/PREVENT THE TERMINATION OF THE PARENT CHILD RELATIONSHIP.

ASSIGNMENT OF ERROR NO. II

CLEAR AND CONVINCING EVIDENCE DID NOT EXIST TO JUSTIFY A FINDING THAT IT WAS IN THE BEST INTERESTS OF THE MINOR CHILDREN TO TERMINATE PARENTAL RIGHTS AND AWARD PERMANENT CUSTODY OF THE MINOR CHILDREN TO CRAWFORD COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES.

{¶10} For ease of discussion, we elect to address the assignments of error out

of the order in which they appear, addressing the second assignment of error first.

Second Assignment of Error

{¶11} In his second assignment of error, James argues that clear and

convincing evidence did not exist to justify a best interest finding by the trial court

in terminating his parental rights.

Standard of Review

{¶12} R.C. 2151.414 outlines the procedures that protect the interests of

parents and children in a permanent custody proceeding. In re B.C., 141 Ohio St.3d

55, 2014-Ohio-4558, ¶26. Revised Code Section 2151.414 requires that a juvenile

-5- Case Nos. 3-17-07, 3-17-08, 3-17-09

court must find clear and convincing evidence under two prongs of the permanent

custody test before a court may terminate parental rights and award permanent

custody of a child to a proper moving agency. In re C.W., 104 Ohio St.3d 163,

2004-Ohio-6411, ¶9 (2004).

First Prong / R.C. 2151.414(B)(1)

{¶13} The first prong of a test for permanent custody requires a finding by

the trial court, by clear and convincing evidence, that one of the following

conditions under R.C. 2151.414(B)(1) exists:

(a) 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, 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 * * *.

(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 abused, neglected, or dependent child on three separate occasions by any court in this state or another state.

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

-6- Case Nos. 3-17-07, 3-17-08, 3-17-09

Second Prong / R.C. 2151.414(D)(1) Best Interest of Child

{¶14} “If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies,” it must proceed to the second prong of the test, which

requires the trial court to “determine, by clear and convincing evidence, whether

granting the agency permanent custody of the child is in the child’s best interest.”

In re K.M.S., 3d Dist. Marion No. 9-15-37, 9-15-38, 9-15-39, 2017-Ohio-142.

quoting In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶55; see R.C.

2151.414(B)(1). Best interest determinations are based on an examination of R.C.

2151.414(D).

{¶15} To make a best interest determination, the trial court is required to

consider all relevant factors listed in R.C. 2151.414(D), as well as any other relevant

factors. In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶11. The factors

listed in R.C. 2151.414(D)(1) consist of:

(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

-7- Case Nos. 3-17-07, 3-17-08, 3-17-09

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.

R.C. 2151.414(D)(1).

{¶16} Under this test, the trial court considers the totality of the

circumstances when making its best interest determinations. No single factor is

given more weight than others. In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-

5513, ¶56 (2006). Further, all of the trial court’s findings must be supported by

clear and convincing evidence and will not be overturned as against the manifest

weight of the evidence if the record contains competent, credible evidence by which

the court could have formed a firm belief or conviction that the statutory elements

for a termination of parental rights have been established. In re Miajanigue W., 6th

Dist. Lucas No. L-06-1088, 2006-Ohio-6295, ¶38, citing In re Forest S., 102 Ohio

App.3d 338, 344-345, Cross v. Ledford, 161 Ohio St. 469, paragraph three of the

syllabus.

-8- Case Nos. 3-17-07, 3-17-08, 3-17-09

{¶17} “Clear and convincing evidence” is: “[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 sough 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. It does not mean clear and unequivocal.” In

re K.M.S., supra, quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986).

Analysis

{¶18} As noted above, the trial court was required to find just one of the

factors under R.C. 2151.414(B)(1)(a)-(e) in order to satisfy the first prong of the

permanent custody test. In our review of the record, we find the trial court fulfilled

its duty, under R.C. 2151.414(B)(1)(a), by finding that N.R.S., J.N.S. and K.H.S.

could not be placed with either parent within a reasonable time or should not be

placed with either parent. The record reveals that the case plan filed by CCCS in

regards to James contained the following requirements: James was to complete a

substance abuse evaluation; maintain six negative drug screens, complete a mental

health assessment, complete family counseling, and complete parenting classes.

However, the record reflects that even though James was given sufficient time to

complete these requirements, he was not successful in doing so. James was not able

to maintain negative drug screens; James did have contact with N.R.S., J.N.S. and

-9- Case Nos. 3-17-07, 3-17-08, 3-17-09

K.H.S. while they were in the temporary custody of CCCS; and James was arrested,

convicted and imprisoned in West Virginia for operating a meth lab.

{¶19} As stated in its August 11, 2017 judgment entry, the trial court found

that N.R.S., J.N.S. and K.H.S. were unable to be returned to James within a

reasonable period of time and that it was in the best interest of the children for a

grant of permanent custody to be awarded to CCCS. We confirm that competent

and credible evidence exists (regarding the factors set forth in R.C. 2151.414(D)) to

support the trial court’s conclusion, by clear and convincing evidence, that it would

be in the best interest of the children to terminate the parental rights of James.

{¶20} The determination as to whether to terminate parental rights is left to

the discretion of the trial court. In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12,

8-13-13, 2014-Ohio-755. If there is competent, credible evidence to support the

judgment by clear and convincing evidence, the appellate court shall affirm the

judgment of the trial court. Id. The evidence in this case shows that the trial court’s

judgment is clearly and convincingly supported by competent and credible

evidence. Thus, James’ assignment of error is overruled.

First Assignment of Error

{¶21} In his first assignment of error, James argues that the trial court erred

in finding CCCS made a good faith effort to reunify him with his children. Since

the Ohio Revised Code does not require a children services agency to make a “good

-10- Case Nos. 3-17-07, 3-17-08, 3-17-09

faith” effort to reunify children with their parents, we will interpret James’ “good

faith” argument as a “reasonable efforts” argument. Specifically, James argues that

CCCS deliberately ignored “ample alternatives”4 to permanent custody, and

therefore hindered the reunification of his children with him. We disagree.

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

consider in determining if “a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents”. The juvenile

court need only find the existence of one of the enumerated factors. In re D.C., 12th

Dist. Fayette No. CA2015-03-006, 2015-Ohio-3178, ¶31. “If the trial court finds

one of the factors present by clear and convincing evidence, the trial court must

make a finding that the child cannot be placed with the parent(s).” In re K.R.,11th

Dist. Trumbull No. 2015-T-0008, 2015-Ohio-2819, ¶13.

{¶23} In the case sub judice, the trial court made findings under R.C.

2151.414(E)(1) and (4) indicating that N.R.S., J.N.S. and K.H.S. could not be placed

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

them. R.C. 2151.414(E), in its pertinent parts, states:

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

4 Appellant’s “ample alternatives” argument consists of the failed placements of the children with the paternal grandparents and the paternal aunt. Because the trial court removed the children from the legal custody of the paternal grandparents and attempted to place the children with the aunt prior to CCCS filing for permanent custody, we only need to discuss the factors set forth under R.C. 2151.414(E) under this argument.

-11- Case Nos. 3-17-07, 3-17-08, 3-17-09

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 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.

(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;

{¶24} The Ohio Supreme Court has determined that the broad purpose of

Ohio’s child-welfare law is “to care for and protect children, ‘whenever possible, in

a family environment, separating the child from the child’s parents only when

necessary for the child’s welfare or in the interests of public safety.’” In re C.F.,

-12- Case Nos. 3-17-07, 3-17-08, 3-17-09

113 Ohio St.3d 73, 2007-Ohio-1104, at ¶29, quoting R.C. 2151.01(A). Essentially,

when the state intervenes in a parent-child relationship, it has a duty to rehabilitate

the family through a sufficient plan of reunification.

{¶25} Nevertheless, the Ohio Supreme Court has also determined that the

trial court is not obligated, under R.C. 2151.419, to make a determination that the

agency used reasonable efforts to reunify the family at the time of the permanent

custody hearing unless the agency has not established that reasonable efforts have

been made prior to the hearing. Id. at ¶¶41, 43. Accordingly, the trial court is only

obligated to make a determination that the agency has made reasonable efforts to

reunify the family at “adjudicatory, emergency, detention, and temporary

disposition hearings, and dispositional hearings for abused, neglected, or dependent

children, all of which occur prior to a decision transferring permanent custody to

the state”. Id. at ¶41. Furthermore, “[t]he statute makes no reference to a hearing

on a motion for permanent custody. Therefore, ‘[b]y its plain terms, the statute does

not apply to motions for permanent custody * * * pursuant to R.C. 2151.414’”. Id.,

at ¶41, quoting In re A.C., 12th Dist. Clermont No. CA2004-05-041, 2004-Ohio-

5531, ¶30.

{¶26} In the case sub judice, the trial court, in its adjudicatory/dispositional

entry of October 15, 2015, found that CCCS had made reasonable efforts to reunify

the family. (Doc. 26). Therefore, because the trial court made a “reasonable efforts”

-13- Case Nos. 3-17-07, 3-17-08, 3-17-09

determination prior to its hearing on permanent custody, it was not required to make

such finding in its permanent custody entry.

{¶27} Nonetheless, in our review of the record we find that the trial court did

not commit error by finding that CCCS made reasonable efforts to reunify the

children with James revealing that CCCS: extended the time frame for James to

have negative drug screens; scheduled visitation with James and the children after

he moved to West Virginia; provided transportation for the children; and pursued

legal custody with the children’s paternal aunt. As such, even though the trial court

was not required to make such finding, we find that reasonable efforts were made

by CCCS to reunify the children in this matter. Therefore, James’ first assignment

of error is overruled.

{¶28} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, the judgment of the Crawford County Common

Pleas Court, Juvenile Division is hereby affirmed.

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr

-14-