[Cite as In re R.T., 2013-Ohio-1139.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: IN THE MATTER OF: : Patricia A. Delaney, P.J. : Sheila G. Farmer, J. R.T., JR. : John W. Wise, J. : : Case No. 2012CA00220 : : : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas, Family Court Division, Case No. 2010JCV01342
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 18, 2013
APPEARANCES:
For Stark County Job and For Appellant Family Services AARON KOVALCHIK JAMES B. PHILLIPS 116 Cleveland Ave., N.W. 221 Third Street, S.E. Suite 808 Canton, Ohio 44702 Canton, Ohio 44702 [Cite as In re R.T., 2013-Ohio-1139.]
Delaney, J.
{¶1} Appellant, T.W. (mother), appeals from the November 1, 2012, Judgment
Entry of the Stark County Court of Common Pleas, Family Court Division, terminating
her parental rights and granting permanent custody of R.T., Jr. to Stark County
Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} R.T., Jr. (DOB 8/19/09) is the child of appellant T.W. and R.T., who is not
part of this appeal. On November 30, 2010, the child was placed into the emergency
temporary custody of Stark County Department of Job and Family Services (“SCDJFS”).
On December 1, 2010, SCDJFS filed a complaint alleging that R.T., Jr. was a neglected
and/or dependent child. As memorialized in a Magistrate’s Order filed on December 2,
2010, R.T., Jr. was placed in the temporary custody of SCDJFS following a shelter care
hearing.
{¶3} Thereafter, on February 1, 2011, appellant stipulated to a finding of
dependency and the trial court found R.T., Jr. to be a dependent child. The court
ordered that the child remain in the temporary custody of SCDJFS.
{¶4} On July 19, 2012, SCDJFS filed a motion requesting a change of legal
custody of R.T., Jr. to a relative. SCDJFS, in its motion, alleged that appellant had lost
housing, continued using marijuana, had not completed case plan services, and was
unable to care for R.T., Jr. However, after the relative indicated that he was no longer
willing to accept custody of R.T., Jr. or to maintain his placement, SCDJFS, on August
28, 2012, filed an amended motion seeking permanent custody of R.T., Jr. Stark County App. Case No. 2012 CA 00220 3
{¶5} A hearing on SCDJFS’ motion was held on October 23, 2012. At the
hearing, Cheri Smith, a caseworker with SCDJFS, testified that R.T., Jr. had never been
out of the temporary custody of the agency since November 30, 2010. Smith testified
that she prepared a case plan for appellant that addressed concerns over drug abuse,
instability in employment and housing, and domestic violence between appellant and
R.T., Jr.’s father. The case plan required appellant to attend Well Child appointments for
R.T., Jr. so that she would remain informed about his health, to submit to random urine
screens, to submit to alcohol and substance abuse assessments at Quest and follow all
recommendations, and to complete a parenting assessment at Northeast Ohio
Behavioral Health and to follow any recommendations. Northeast Ohio Behavioral
Health recommended that appellant attend Renew, maintain stable housing and
employment, attend individual counseling, and attend Goodwill Parenting classes. Smith
testified that appellant completed a parenting evaluation and Goodwill Parenting.
Appellant, however, did not complete Renew. Smith testified that appellant “went for
several months, October, November, and December of last year she attended Renew.
However, in February she did not go back. She was scheduled again for a
reassessment on 8/21 of 2012 and she no-showed for that assessment…” Transcript at
10.
{¶6} Appellant also failed to complete Quest. According to Smith, appellant had
been doing well, but dropped out and cancelled a reassessment that had been
scheduled for August over substance abuse concerns. Appellant had testified positive
for marijuana on May 14, 2012. Smith testified that appellant missed six sessions at Stark County App. Case No. 2012 CA 00220 4
Quest that she needed to complete. On October 11, 2012, appellant again tested
positive for marijuana.
{¶7} Smith further testified appellant had recently become employed part-time
as a secretary, but that appellant had failed to maintain any form of stable employment
during the two years of the case. She testified that appellant was only employed one
other time for a brief period during the pendency of the case. Appellant also lacked
housing, having lost her housing in March of 2012. Smith testified that appellant told her
that she was staying with her father, but refused to give Smith the address. As a result,
Smith was unable to determine if the house was appropriate or not.
{¶8} Smith, when asked, indicated that she had concerns about appellant being
involved with R.T., Jr.’s father. She testified that she had been told by relatives and
others that appellant and R.T. were still involved, but that appellant denied such
involvement. Smith further testified that appellant had a history of going back to R.T.
The following testimony was adduced when Smith was asked whether she believed that
appellant had completed enough services to reduce the risk to the child:
{¶9} “A. No, I do not.
{¶10} “Q. Why do you say that?
{¶11} “A. Because just recently I’ve had a urine screen, or not, sorry, a swab,
where she was positive for marijuana. She was very well informed. We had our
conversations and I’m sure she has also spoken with her attorney about what needed to
be done still, like Quest and Renew. She does not have housing. I can’t confirm or
deny whether the home that she’s currently staying in is appropriate for [R.T., Jr.] I Stark County App. Case No. 2012 CA 00220 5
don’t see where we’ve made much of any progress from when I became involved in this
case to this point.” Transcript at 13.
{¶12} Smith also testified that appellant visited with R.T., Jr. consistently
throughout the case and that she loved him and he had a bond with her. She testified
that the agency could not grant any more extensions in this case and that she believed
that the child would be at risk if returned to appellant because appellant used marijuana,
lacked stable housing, and there were concerns that she was still involved with R.T.
She testified that she did not believe that appellant had made much progress during the
case.
{¶13} On cross-examination, Smith testified that appellant had completed Quest
Women’s Issues Group, but had not completed the entire Quest program. Smith
testified that although appellant successfully completed Goodwill Home Based
parenting, there were concerns over appellant smoking in the home because R.T., Jr.
had asthma. The following testimony was adduced when Smith was asked why the child
was never returned home even though appellant had successfully completed Goodwill
Home Based:
{¶14} “A. She completed, yes.
{¶15} “Q. Okay, but yet we never returned them?
{¶16} “A. No, we did not.
{¶17} “Q. Even though at the particular time her urine screens were clean and
she had housing.
{¶18} “A. She did. Stark County App. Case No. 2012 CA 00220 6
{¶19} “Q. She had completed at least enough of the program to permit home
visits.
{¶20} “A. Yes.
{¶21} “Q. So what happened from the time where we’re ready to return to now
we have a motion for Permanent Custody pending?
{¶22} “A. Well, first of all there’s been a quite a bit of time that’s gone by since
then. There were concerns that Mom’s residence I was alerted that there were
concerns at Mom’s residence that the Father was harassing her and that there was
some more domestic violence issues that were occurring.
{¶23} “Q. Anyone charged with domestic violence?
{¶24} “A. I have the reports. There were no charges, but there were numerous
calls to her residence for that reason.” Transcript at 17-18.
{¶25} On cross-examination, Smith testified that appellant had three or four
sessions left at Renew when she left. She also testified that appellant maintained the
same housing from September of 2011 until March of 2012. According to Smith, a
majority of appellant’s urine screens were dirty. Smith also testified that she was still
receiving reports of possible domestic violence between appellant and R.T. after
appellant had dropped out of the Renew program.
{¶26} At the best interest portion of the hearing, Smith testified that the child had
been in the temporary custody of the agency since November 30, 2010. She testified
that the child was Caucasian, was around three years old, and that he has asthma that
was not being treated with medication. Smith testified that R.T., Jr. was very angry and
that he had had severe temper tantrums and kicked and bit. In a previous home, he had Stark County App. Case No. 2012 CA 00220 7
pushed a two year old down some steps. According to Smith, in the two different homes
that he had been in, R.T., Jr. spread feces on the walls and furniture and urinated in a
closet. She testified that he had been in a new home since September 10, 2012, and
was not exhibiting such behavior in the current foster home.
{¶27} In total, R.T., Jr. has had six placements. Smith testified that a couple
were due to his behaviors and that some were because of attempts to reunite him with
the family. He was initially placed with an aunt, but had to be moved because the aunt
allow appellant and R.T. access to R.T., Jr. The child then did well in the foster home
until he was moved into a house with his sister, who was medically fragile. Smith
testified that at such time, they started seeing the above behavioral problems. Because
that foster mother was unable to handle the behavioral problems, R.T., Jr. was moved
back to the original foster home. After that foster family was no longer willing to adopt
R.T., Jr. he was placed with appellant’s stepfather and his current partner in June of
2012. Smith testified that R.T., Jr. did well for a while, but that then his behavior
worsened and he pushed a two year old down some steps. R.T., Jr. was then moved to
his current foster home. Smith also testified that he had had been in such home since
September 10, 2012 and that such foster family, who had two other adopted children
with similar behaviors, was interested in adopting him.
{¶28} When asked, Smith testified that two other relatives had come forward to
be considered for home placement. One was appellant’s cousin who never came into
be fingerprinted and did not call back to have the home study completed despite being
contacted numerous times by the agency. The second was the father’s sister. Smith
testified that, after a home study, the sister was approved, but that the sister told Smith Stark County App. Case No. 2012 CA 00220 8
that she could only care for R.T., Jr. on a temporary basis until appellant and R.T., Jr.
got their act together. Such relative did not want to adopt the child.
{¶29} Smith testified that there was a bond between appellant and R.T., Jr. and
that R.T., Jr. loved appellant. Smith testified that the interaction between appellant and
R.T., Jr. had been limited and that he had seen her every couple of weeks over the last
two years, Smith voiced concerns that appellant did not interact enough with R.T., Jr.
during the visits. When asked if the benefit of permanent custody outweighed any harm
in breaking the bond between appellant and her son, Smith testified affirmatively and
indicated that R.T., Jr. needed stability and had been moved around too much.
{¶30} On cross-examination, Smith testified that R.T., Jr. did not exhibit any of
the behavioral problems during his visits with appellant. She admitted that it was not
until R.T., Jr. had been moved into the same home as his sister that he began exhibiting
behavioral problems.
{¶31} At the hearing, father R.T.’s sister testified that she was unwilling to adopt
R.T., Jr. but would keep him temporarily until appellant and R.T. got their act together.
She testified that she could not guarantee that she and her husband would be willing to
keep R.T., Jr. until he turned 18 and that it was not her intention to do so. She testified
that she would not put R.T., Jr. in harm’s way by returning him to his parents.
{¶32} At the hearing, the Guardian ad Litem testified that appellant’s ICAN
housing had been cancelled over concerns about domestic violence and that the
“domestic violence thing has been going on for years,..” Transcript at 55. She also
stated that she observed the last visit that appellant had with R.T., Jr. and that during
the two hour visit, appellant was on the phone for at least 45 minutes and that the rest Stark County App. Case No. 2012 CA 00220 9
of the time appellant had little interaction with R.T., Jr. She stated that it was in the
child’s best interest for permanent custody to be granted to the agency.
{¶33} Pursuant to a Judgment Entry filed on November 1, 2012, the trial court
terminated appellant’s parental rights and granted permanent custody of R.T., Jr. to
SCDJFS. On the same date, the trial court filed Findings of Fact and Conclusions of
Law.
{¶34} Appellant now raises the following assignments of error on appeal:
{¶35} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.
{¶36} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I, II
{¶37} Appellant, in her two assignments of error, argues that the trial court erred
in awarding permanent custody of the child to SCDJFS. Appellant specifically contends
that SCDJFS failed to prove by clear and convincing evidence that the child could not or
should not be placed with appellant within a reasonable amount of time and that an
award of permanent custody was in the child's best interest.
{¶38} 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, Stark County App. Case No. 2012 CA 00220 10
competent, and credible evidence upon which the finder of fact could base its judgment.
Cross Truck Equipment Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982
WL 2911 (Feb. 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 Constr., 54
Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶39} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). 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, 77
Ohio St .3d 415, 419, 674 N.E.2d 1159 (1997).
{¶40} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶41} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, and 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 Stark County App. Case No. 2012 CA 00220 11
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶42} 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.
{¶43} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial
court will usually determine whether one of the four circumstances delineated in R.C
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶44} In this case, the trial court found by clear and convincing evidence that the
child had been in the temporary custody of a public children services agency for twelve
or more months of a consecutive twenty-two-month period pursuant to R.C.
2151.414(B)(1)(d). Appellant does not challenge the trial court's finding. This finding Stark County App. Case No. 2012 CA 00220 12
alone, in conjunction with a best-interest finding, is sufficient to support the grant of
permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45.
{¶45} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should
not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of
the child's parents.
{¶46} The trial court determined that the child could not be placed with appellant
within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the following
findings:
{¶47} “(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.” Stark County App. Case No. 2012 CA 00220 13
{¶48} A review of the record supports the trial court's decision that the child
cannot be placed with appellant within a reasonable time and that the agency provided
reasonable case planning and diligent efforts to assist appellant to remedy the problems
that caused the child to be removed. As is stated above, there was testimony that
appellant had lost her housing in March of 2012, claimed that she was living with her
father, and then refused to give the agency her address. As a result, the agency was
unable to determine if the housing was appropriate for R.T., Jr. In addition, appellant
lacked stable employment throughout the case. While there was testimony that
appellant obtained part-time employment in September of 2012, there was testimony
that she had one other short term period of employment during pendency of the case.
Moreover, appellant failed to attend Well Child appointments as required and had tested
positive for marijuana on May 14, 2012 and October of 2012. In addition, appellant did
not complete at Quest and dropped out of Renew with three or four sessions to go. As
noted by the trial court in its decision, there were also was continuing concerns about
appellant’s ongoing relationship with R.T., which had been violent in the past.
Furthermore, the trial court voiced concerns over appellant’s smoking in the home while
knowing that R.T., Jr. had asthma.
{¶49} We next turn to the issue of best interest. We have frequently noted, “[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given
the nature of the proceeding and the impact the court's determination will have on the
lives of the parties concerned.” In re Mauzy Children, 5th Dist. No.2000CA00244, 2000
WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d Stark County App. Case No. 2012 CA 00220 14
424 (8th Dist.1994). The trial court determined it was in the best interest of the child to
be placed in the permanent custody of appellee pursuant to R.C. 2151.414(D), and we
agree.
{¶50} At the hearing, there was testimony that R.T., Jr., who had been in the
agency’s custody since November 30, 2010, had significant behavioral problems and
that he had been moved six times during the pendency of the case. Smith testified that
his current foster parents had experience with children with similar issues and that they
had adopted two such children and were interested in adopting R.T., Jr. Smith further
testified that R.T., Jr. needed a stable permanent home and that he had been moved
around too much. When asked if the benefit of permanent custody outweighed any
harm in breaking the bond between appellant and her son, Smith testified affirmatively.
Furthermore, the Guardian ad Litem, in her November 1, 2012, Report, recommended
that permanent custody be granted to the agency. The Guardian noted that appellant
had lost her housing, had stopped attending Quest and had an ongoing drug problem.
{¶51} In addition, there was testimony that R.T., Jr. had only seen appellant
every other week for the past two years. As is stated above, there also was testimony
that appellant, during her visits with R.T., Jr., did not interact with him enough and,
during one visit, spent a great deal of time on the phone.
{¶52} Appellant, in her brief, notes that a family member with an approved home
study was willing to take custody of R.T., Jr. However, this family member clearly stated
that she was not interested in adopting R.T., Jr. and was only interested in keeping him
on a temporary basis until appellant and R.T. could get their acts together. Stark County App. Case No. 2012 CA 00220 15
{¶53} Based on the foregoing, we find that the trial court did not err in finding
that R.T., Jr. could not or should not be placed with appellant within a reasonable period
of time and that the grant of permanent custody to the agency was in his best interest.
{¶54} Appellant’s two assignments of error are, therefore, overruled.
{¶55} Accordingly, the judgment of the Stark County Court of Common Pleas,
Family Court Division, is affirmed.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur
______________________________
JUDGES
PAD/d0304 [Cite as In re R.T., 2013-Ohio-1139.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : R.T., JR. : : : : JUDGMENT ENTRY : : : : CASE NO. 2012 CA 00220
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Family Court Division, is
affirmed. Costs assessed to Appellant.
_________________________________