In re O.C.

2012 Ohio 713

Opinion

[Cite as In re O.C., 2012-Ohio-713.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES: Hon. Patricia A. Delaney, P.J. O.C. (DOB 11-09-2005) Hon. W. Scott Gwin, J. Hon. Sheila G. Farmer, J. A.T. (DOB 02-22-2008) Case No. 2011CA00248 I.B. (DOB 09-09-2010)

MINOR CHILDREN OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 2010JCV00988 & 2010JCV01339

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 21, 2012

APPEARANCES:

For Appellant For Appellee

AMANDA E. JAMES LISA A. LOUY 200 West Tuscarawas Street 221 Third Street, SE Suite 200 Canton, OH 44702 Canton, OH 44702 Stark County, Case No. 2011CA00248 2

Farmer, J.

{¶1} On August 9, 2011, appellee, the Stark County Department of Job and

Family Services, filed two complaints for permanent custody of O.C. born November 9,

2005, A.T. born February 22, 2008, and I.B. born September 9, 2010. Mother of the

children is appellant, Samantha Carter; father of O.C. is Michael Plant, father of A.T. is

Gregory Thomas, and father of I.B. is Michael Brant.

{¶2} O.C. and A.T. had been adjudicated dependent on November 8, 2010.

I.B. had been adjudicated dependent on February 8, 2011. A final hearing was held on

September 27, 2011. By judgment entry filed October 3, 2011, the trial court

granted permanent custody of the children to appellee. Findings of fact and conclusions

of law were filed same date.

{¶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 ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTION TO CONTINUE THE PERMANENT CUSTODY HEARING."

II

{¶5} "THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR

CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A

REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE." Stark County, Case No. 2011CA00248 3

III

{¶6} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE CHILDREN WOULD BE SERVED BY GRANTING PERMANENT

CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE."

{¶7} Appellant claims the trial court abused its discretion in denying her motion

for a continuance. We disagree.

{¶8} The grant or denial of a continuance rests in the trial court's sound

discretion. State v. Unger (1981), 67 Ohio St.2d 65. In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217.

{¶9} At the start of the hearing, appellant's counsel requested a continuance as

appellant was not present for the hearing:

{¶10} "Just briefly I would ask a Motion to Continue being that my client is not

present today. Uhm given the rights that state that she does have a right to be here.

So I would ask for the opportunity to be able to come in contact with her and notify her

of today's proceedings. I do understand that…that the Department has perfected

service through ordinary mail however I subsequently did send certified mail that was

signed by an unknown individual. I don't know uhm if she's still at that address or not. I

have made several attempts through that same address ah and being that I have not Stark County, Case No. 2011CA00248 4

been able to contact her at that address it is possible that she is not aware of today's

proceedings." T. at 3-4.

{¶11} The trial court noted appellant had been adequately served and denied

the motion. T. at 4.

{¶12} The record indicates appellant was served notice of the final hearing via

certified mail and ordinary mail. See, Praecipe for Service filed August 31, 2011 and

Clerk's Notice dated September 2, 2011. Although the certified mail was returned

unclaimed, the notices were sent to the same address as listed on the original

temporary custody complaint filed on September 8, 2010. Appellant appeared at the

emergency shelter care hearing and the adjudicatory hearing. See, Notification of

Rights filed September 9, 2010 and Notice of Rights filed November 9, 2010.

{¶13} Upon review, we find the trial court did not abuse its discretion in denying

the motion for continuance.

{¶14} Assignment of Error I is denied.

II, III

{¶15} Appellant claims the trial court's decision to grant permanent custody of

the children to appellee was against the manifest weight and sufficiency of the

evidence. Specifically, appellant claims the trial court erred in finding the children could

not be placed with her within a reasonable period of time and the best interests of the

children was best served by granting appellee permanent custody. We disagree.

{¶16} 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. Stark County, Case No. 2011CA00248 5

Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA–5758. 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 (1978), 54 Ohio St.2d 279.

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

custody. Said section states in pertinent part as follows:

{¶18} "(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:

{¶19} "(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 Stark County, Case No. 2011CA00248 6

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

parental duties.

{¶20} "(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;

{¶21} "(10) The parent has abandoned the child.

{¶22} "(16) Any other factor the court considers relevant."

{¶23} R.C. 2151.414(B) enables the court to grant permanent custody if the

court determines by clear and convincing evidence that it is in the best interest 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 (1954), 161 Ohio St. 469, paragraph three of the syllabus. See

also, In re Adoption of Holcomb (1985), 18 Ohio St.3d 361. "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.

{¶24} R.C. 2151.414(D) sets out the factors relevant to determining the best

interests of the child. Said section states relevant factors include, but are not limited to,

the following:

{¶25} "(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; Stark County, Case No. 2011CA00248 7

{¶26} "(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;

{¶27} "(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***;

{¶28} "(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;

{¶29} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

{¶30} In its findings filed October 3, 2011 as to whether the children could be

placed with appellant within a reasonable time, the trial court found the following

relevant to appellant:

{¶31} "2. ***Ms. Hafner [caseworker] testified that the initial concerns when the

complaint was filed included the conditions of the home, drug abuse, as well as

allegations that Mother was selling food stamps to purchase marijuana. She further

testified that she attempted to work with Mother out-of-court but on September 8, 2010

had to subsequently remove [A.T and O.C.] from her care. In [I.B.'s] case the agency

attempted to leave the child in Mother's care while she was supervised at inpatient

treatment facility. Mother then transitioned housing and had no supervision on

November 30, 2010 which required the childs (sic) removal from the home. Since the

times of removal from Mother's custody no child has been returned to her care. Ms. Stark County, Case No. 2011CA00248 8

Hafner testified that visits between the children and Mother stopped during February

2011 when Mother stopped attending visits, a period in excess of ninety (90) days. The

caseworker was not aware of anything prohibiting Mother from attending visits as

Mother was provided a bus pass. The worker contacted Ms. Carter at home in May

2011. During this contact Ms. Hafner testified Mother threatened her and failed to have

contact with any child.

{¶32} "4. The worker testified that Mother's case plan included a parenting

assessment at North East Ohio Behavioral Health. She testified that Mother began her

intensive out-patient services at Quest but walked-out before she had finished. She

stated that, to her knowledge, Mother has no job or stable housing. Ms. Hafner testified

that Mother failed to complete her parenting assessment.***"

{¶33} The trial court then concluded the following:

{¶34} "1. THEREFORE, the court finds by clear and convincing evidence that

the children have been abandoned as defined under ORC 2151.011 (c).

{¶35} "2. THEREFORE, the children cannot be placed with either parent within a

reasonable time nor should they be placed with either parent."

{¶36} The family's caseworker, Jennifer Hafner, testified the agency was

working with appellant out-of-court while appellant was receiving drug and alcohol

treatment. T. at 9. However, after appellant relapsed, she went into inpatient treatment

and appellee received temporary custody of the children in November of 2010 (O.C.

and A.T.) and February of 2011 (I.B.). T. at 9-11. Appellant stopped visiting the

children in February and failed to return telephone calls to the agency. T. at 11. Ms.

Hafner made contact with appellant in May of 2011 however, appellant was not happy Stark County, Case No. 2011CA00248 9

and threatened Ms. Hafner to leave. T. at 11-12, 29. Appellant did not ask about the

children during this visit. T. at 36. Ms. Hafner did not know of anything that prohibited

appellant from visiting the children. T. at 12. The agency had supplied appellant with a

bus pass. T. at 29-30.

{¶37} Through her case plan, appellant was required to receive a parenting

assessment which she never completed. T. at 13. She walked out on her inpatient

treatment for drugs and alcohol and did not complete the program. Id. She has not

obtained housing or a job. T. at 15.

{¶38} Ms. Hafner testified the fathers have had little to no involvement in the

case. T. at 12, 14-15, 36.

{¶39} Upon review, we find the trial court did not err in finding that the children

could not be placed with appellant within a reasonable time.

{¶40} As for best interests, the trial court found the following:

{¶41} "[A.T., O.C., and I.B.] are three (3) caucasian girls. Ms. Hafner testified

that at the time of their removal the children exhibited developmental and speech

delays. Since that time they have undergone occupational, physical, and speech

therapy which have corrected the issues. The children have been in the same foster

home since December 14, 2010. The worker stated that the Foster Parents have

adopted three (3) other boys and one (1) girl, whom the children in this case are bonded

with. Ms. Hafner testified that Mother has no suitable relative for adoption. The Parents

of Gregory Thomas are suitable but do not want the other children and felt it is in the

children's best interest to remain together. She further testified that Father Michael

Barth also has no suitable relatives." Stark County, Case No. 2011CA00248 10

{¶42} The trial court then concluded the following:

{¶43} "1. THEREFORE, the Court finds, despite the minimal bond that may have

developed between any parent and [A.T., O.C., or I.B.,] the harm caused by severing

the bond with the parents is outweighed by the benefits of permanency in the children's

life.

{¶44} "2. THEREFORE, the Court finds [A.T., O.C., and I.B.] to be adoptable.

{¶45} "3. THEREFORE, the Court finds it is in the best interests of [A.T., O.C.,

and I.B.] to grant permanent custody to the SCDJFS for purposes of adoption. These

children deserve to be in a stable, loving environment."

{¶46} Ms. Hafner testified the children suffered from slight developmental delays

which have been corrected through occupational, physical, and speech therapy. T. at

45. All the children resided in the same foster home and have bonded with the foster

family. T. at 45-46. Ms. Hafner did not observe any bond between the children and

appellant. T. at 48.

{¶47} Upon review, we find the trial court did not err in finding

the best interests of the children were best served by granting permanent custody to

appellee.

{¶48} Assignments of Error II and III are denied. Stark County, Case No. 2011CA00248 11

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

Juvenile Division is hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Gwin, J. concur.

_s/ Sheila G. Farmer________________

_s/ Patricia A. Delaney______________

_s/ W. Scott Gwin__________________

JUDGES [Cite as In re O.C., 2012-Ohio-713.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : O.C. (DOB 11-09-2005) : : A.T. (DOB 02-22-2008) : JUDGMENT ENTRY : I.B. (DOB 09-09-2010) : : MINOR CHILDREN : CASE NO. 2011CA00248

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

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

affirmed. Costs to appellant.

JUDGES