[Cite as In re S. Children, 2012-Ohio-6265.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: S. CHILDREN : Hon. Patricia A. Delaney, P.J. : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. : : : Case No. 2012-CA-00164 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2012JCV00512
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 31, 2012
APPEARANCES:
For-Appellee For-Appellant
JERRY A. COLEMAN KEVIN J. ANKNEY SCDJFS Stark County Public Defendant's Office 110 Central Plaza South, Ste. 400 200 W. Tuscarawas St., Ste 200 Canton, OH 44702 Canton, OH 44702 [Cite as In re S. Children, 2012-Ohio-6265.]
Hoffman, J.,
{¶1} Appellant Donald S. (“Father”) appeals the August 16, 2012 judgment
entered by the Stark County Court of Common Pleas, Juvenile Division, which
terminated his parental rights, privileges and responsibilities with respect to his two
minor children and granted permanent custody of the children to appellee Stark County
Department of Job and Family Services (“JFS”).
THE STATEMENT OF THE FACTS AND CASE
{¶2} Father is the biological father of T.S. and L.S., both born on May 21, 2012.
On May 23, 2012, JFS filed a complaint alleging dependency and neglect, and seeking
permanent custody of the two children. At the shelter care hearing, the trial court
placed the children in the temporary custody of JFS. The parties stipulated to a finding
of dependency. The children’s mother is not a party to this appeal, but she and Father
are married and reside together.
{¶3} JFS has historically been involved with family due to frequent drug and
alcohol use, inappropriate supervision of the young children, numerous criminal
convictions, and severe mental health concerns. JFS initially became involved with the
family in 2006. The child who was the subject of that case (2006JCV1847) was found
to be dependent, but was eventually returned to Mother after she completed her case
plan in 2007.
{¶4} In 2008, the agency again became involved with the family when Father
was convicted of gross sexual imposition of an eight year old child. The children
involved in that case (20008JCV00733) were found to be dependent, but Mother Stark County, Case No. 2012-CA-00164 3
completed her case plan and the agency terminated its involvement on December 23,
2008.
{¶5} JFS again became involved with the family in 2009 because of Mother’s
mental health and drug/alcohol abuse. The children in that case (2009JCV00882) again
were found to be dependent and permanent custody was eventually granted to JFS on
June 18, 2010. This court affirmed. In re D.D.S. and D.T.S. Minor Children, 5th Dist.
No. 2010CA00187, 2010-Ohio-5800.
{¶6} JFS became involved with Mother and Father again in 2011. The child
involved in that case (2011JCV00574) was found to be dependent and permanent
custody was granted to JFS on July 7, 2011. This court affirmed. In the Matter of D.S.,
5th Dist. No. 2011CA00166, 2011-Ohio-6379.
{¶7} The trial court found Father has a criminal record and is currently
registered as Tier II sex offender working his way through a treatment program at
Melymbrosia. Father has not completed the program despite having the opportunity to
do so for nearly two years. Father testified he stopped attending the class because of
financial reasons and had not re-enrolled in the program. The court found Father
refuses to acknowledge the severe mental illness of his wife, the children’s mother,
which could lead to unsafe parenting situations in the future. The trial court found
neither parent had shown by clear and convincing evidence any change in
circumstances that would preclude a grant of permanent custody to JFS.
{¶8} At the time of the hearing, T.S. and L.S. were appropriately three months
of age and had no medical or psychological problems. They were placed in a licensed
foster home and the foster parents were interested in adopting the children. The court Stark County, Case No. 2012-CA-00164 4
found the foster parents have formed a bond with both children, and the children are not
strongly bonded with Father or Mother.
{¶9} The guardian ad litem presented a written report recommending that
permanent custody be granted to JFS.
{¶10} The trial court awarded permanent custody to JFS on August 16, 2012,
and it is from this judgment entry Father appeals, citing as error:
{¶11} “I. THE LOWER COURT ERRED PROCEDURALLY BY GRANTING
PERMANENT CUSTODY AT DISPOSITION PURSUANT TO OHIO REVISED CODE
2151.353 WITHOUT MAKING A FINDING THAT REASONABLE EFFORTS WERE
MET, OR NOT REQUIRED, UNDER OHIO REVISED CODE 2151.419.
{¶12} “II. THE LOWER COURT ERRED BY NOT REQUIRING THE STARK
COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES TO MAKE REASONABLE
EFFORTS UNDER OHIO REVISED CODE 2151.419 TO REUNITE THE CHILDREN
WITH APPELLANT.
{¶13} “III THE JUDGMENT OF THE LOWER COURT THAT THE BEST
INTERESTS OF THE CHILD (sic) WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
{¶14} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2 (C).
I.
{¶15} In his first assignment of error, Father argues the trial court erred
procedurally by granting permanent custody at the dispositional hearing without making Stark County, Case No. 2012-CA-00164 5
a finding that either reasonable efforts were met, or were not required under R.C.
2151.419.
{¶16} R.C. 2151.419 requires a court at the disposition hearing following an
adjudication of dependency, neglect or abuse to determine if reasonable efforts have
been made to return the children to the parents, and if not, the court determines if
reasonable efforts were not required. The statute requires the court to find that the
agency is not required to make reasonable efforts to prevent the removal of the child
from the child's home, eliminate the continued removal of the child from the child's
home, and return the child to the child's home if, inter alia, the parent from whom the
child is removed has had parental rights involuntarily terminated with respect to a sibling
of the child. R.C. 2151.419(A)(2)(e).
{¶17} The trial court made extensive findings regarding the family history and
specifically found Father had involuntarily lost permanent custody of several children in
prior cases. This fact has never been disputed. However, the trial court did not make a
specific finding reasonable efforts were not necessary. This court has previously held it
is not reversible error to omit a specific determination JFS was not required to make
reasonable efforts where the facts and circumstances would support such a finding. In
Re: Brown, 5th Dist. No. 2008 CA 00029, 2008-Ohio-3655, ¶ 26.
{¶18} The first assignment of error is overruled.
II.
{¶19} In his second assignment of error, Father cites R.C. 2151.419 (A)(3),
which provides “At any hearing in which the court determines whether to return a child
to the child’s home, the court may issue an order that returns a child in situations in Stark County, Case No. 2012-CA-00164 6
which the conditions described in divisions (A)(2)(a) to (e) of this section.” Father
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[Cite as In re S. Children, 2012-Ohio-6265.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: S. CHILDREN : Hon. Patricia A. Delaney, P.J. : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. : : : Case No. 2012-CA-00164 : : : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2012JCV00512
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 31, 2012
APPEARANCES:
For-Appellee For-Appellant
JERRY A. COLEMAN KEVIN J. ANKNEY SCDJFS Stark County Public Defendant's Office 110 Central Plaza South, Ste. 400 200 W. Tuscarawas St., Ste 200 Canton, OH 44702 Canton, OH 44702 [Cite as In re S. Children, 2012-Ohio-6265.]
Hoffman, J.,
{¶1} Appellant Donald S. (“Father”) appeals the August 16, 2012 judgment
entered by the Stark County Court of Common Pleas, Juvenile Division, which
terminated his parental rights, privileges and responsibilities with respect to his two
minor children and granted permanent custody of the children to appellee Stark County
Department of Job and Family Services (“JFS”).
THE STATEMENT OF THE FACTS AND CASE
{¶2} Father is the biological father of T.S. and L.S., both born on May 21, 2012.
On May 23, 2012, JFS filed a complaint alleging dependency and neglect, and seeking
permanent custody of the two children. At the shelter care hearing, the trial court
placed the children in the temporary custody of JFS. The parties stipulated to a finding
of dependency. The children’s mother is not a party to this appeal, but she and Father
are married and reside together.
{¶3} JFS has historically been involved with family due to frequent drug and
alcohol use, inappropriate supervision of the young children, numerous criminal
convictions, and severe mental health concerns. JFS initially became involved with the
family in 2006. The child who was the subject of that case (2006JCV1847) was found
to be dependent, but was eventually returned to Mother after she completed her case
plan in 2007.
{¶4} In 2008, the agency again became involved with the family when Father
was convicted of gross sexual imposition of an eight year old child. The children
involved in that case (20008JCV00733) were found to be dependent, but Mother Stark County, Case No. 2012-CA-00164 3
completed her case plan and the agency terminated its involvement on December 23,
2008.
{¶5} JFS again became involved with the family in 2009 because of Mother’s
mental health and drug/alcohol abuse. The children in that case (2009JCV00882) again
were found to be dependent and permanent custody was eventually granted to JFS on
June 18, 2010. This court affirmed. In re D.D.S. and D.T.S. Minor Children, 5th Dist.
No. 2010CA00187, 2010-Ohio-5800.
{¶6} JFS became involved with Mother and Father again in 2011. The child
involved in that case (2011JCV00574) was found to be dependent and permanent
custody was granted to JFS on July 7, 2011. This court affirmed. In the Matter of D.S.,
5th Dist. No. 2011CA00166, 2011-Ohio-6379.
{¶7} The trial court found Father has a criminal record and is currently
registered as Tier II sex offender working his way through a treatment program at
Melymbrosia. Father has not completed the program despite having the opportunity to
do so for nearly two years. Father testified he stopped attending the class because of
financial reasons and had not re-enrolled in the program. The court found Father
refuses to acknowledge the severe mental illness of his wife, the children’s mother,
which could lead to unsafe parenting situations in the future. The trial court found
neither parent had shown by clear and convincing evidence any change in
circumstances that would preclude a grant of permanent custody to JFS.
{¶8} At the time of the hearing, T.S. and L.S. were appropriately three months
of age and had no medical or psychological problems. They were placed in a licensed
foster home and the foster parents were interested in adopting the children. The court Stark County, Case No. 2012-CA-00164 4
found the foster parents have formed a bond with both children, and the children are not
strongly bonded with Father or Mother.
{¶9} The guardian ad litem presented a written report recommending that
permanent custody be granted to JFS.
{¶10} The trial court awarded permanent custody to JFS on August 16, 2012,
and it is from this judgment entry Father appeals, citing as error:
{¶11} “I. THE LOWER COURT ERRED PROCEDURALLY BY GRANTING
PERMANENT CUSTODY AT DISPOSITION PURSUANT TO OHIO REVISED CODE
2151.353 WITHOUT MAKING A FINDING THAT REASONABLE EFFORTS WERE
MET, OR NOT REQUIRED, UNDER OHIO REVISED CODE 2151.419.
{¶12} “II. THE LOWER COURT ERRED BY NOT REQUIRING THE STARK
COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES TO MAKE REASONABLE
EFFORTS UNDER OHIO REVISED CODE 2151.419 TO REUNITE THE CHILDREN
WITH APPELLANT.
{¶13} “III THE JUDGMENT OF THE LOWER COURT THAT THE BEST
INTERESTS OF THE CHILD (sic) WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
{¶14} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2 (C).
I.
{¶15} In his first assignment of error, Father argues the trial court erred
procedurally by granting permanent custody at the dispositional hearing without making Stark County, Case No. 2012-CA-00164 5
a finding that either reasonable efforts were met, or were not required under R.C.
2151.419.
{¶16} R.C. 2151.419 requires a court at the disposition hearing following an
adjudication of dependency, neglect or abuse to determine if reasonable efforts have
been made to return the children to the parents, and if not, the court determines if
reasonable efforts were not required. The statute requires the court to find that the
agency is not required to make reasonable efforts to prevent the removal of the child
from the child's home, eliminate the continued removal of the child from the child's
home, and return the child to the child's home if, inter alia, the parent from whom the
child is removed has had parental rights involuntarily terminated with respect to a sibling
of the child. R.C. 2151.419(A)(2)(e).
{¶17} The trial court made extensive findings regarding the family history and
specifically found Father had involuntarily lost permanent custody of several children in
prior cases. This fact has never been disputed. However, the trial court did not make a
specific finding reasonable efforts were not necessary. This court has previously held it
is not reversible error to omit a specific determination JFS was not required to make
reasonable efforts where the facts and circumstances would support such a finding. In
Re: Brown, 5th Dist. No. 2008 CA 00029, 2008-Ohio-3655, ¶ 26.
{¶18} The first assignment of error is overruled.
II.
{¶19} In his second assignment of error, Father cites R.C. 2151.419 (A)(3),
which provides “At any hearing in which the court determines whether to return a child
to the child’s home, the court may issue an order that returns a child in situations in Stark County, Case No. 2012-CA-00164 6
which the conditions described in divisions (A)(2)(a) to (e) of this section.” Father
asserts the statute permits the trial court to return these children to his home, even
though he had his parental rights involuntarily terminated as to other children previously.
{¶20} The statute makes the decision to return the children discretionary, not
mandatory. We find the trial court did not err in not ordering JFS to make reasonable
efforts to return these children to their home.
{¶21} The second assignment of error is overruled.
III.
{¶22} In his third assignment of error, Father argues the trial court’s finding the
best interest of the children would be served by granting JFS permanent custody was
against the manifest weight and sufficiency of the evidence.
{¶23} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, the Ohio
Supreme Court distinguished the terms “sufficiency” and “weight” in civil cases,
declaring that “manifest weight” and “legal sufficiency” are “both quantitatively and
qualitatively different,” in the same manner the Supreme Court previously held
regarding criminal cases in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541
(1997), paragraph two of the syllabus. The court found sufficiency of the evidence to be
“a term of art meaning that legal standard which is applied to determine whether the
case may go to the jury or whether the evidence is legally sufficient to support the jury
verdict as a matter of law. * * * In essence, sufficiency is a test of adequacy.” Eastley,
¶11, citing Thompkins, supra at 386, 678 N.E.2d 541, and Black’s Law Dictionary 1433
(6th Ed. 1990). Stark County, Case No. 2012-CA-00164 7
{¶24} By contrast, weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find
the greater amount of credible evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but depends on its effect in
inducing belief.” Eastley at ¶12, citing Thompkins, supra at 387, 678 N.E.2d 541, and
Black’s, supra at 1594. (Emphasis sic.)
{¶25} Permanent custody cases, require the evidence to meet the clear and
convincing standard. The Ohio Supreme Court has defined “clear and convincing
evidence” as the 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 sought 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. In re: Estate of
Haynes, 25 Ohio St.3d 101, 103–04, 495 N.E.2d 23(1986); see, also, State v. Schiebel,
55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990).
{¶26} 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 Stark County, Case No. 2012-CA-00164 8
child's need for a legally secure permanent placement and whether that type of
placement can be achieved without a grant of permanent custody.
{¶27} The trial court found the children are with foster parents who are
interested in adopting them. The court found the foster parents are very interactive with
the children and formed a bond with both children, and the children were not strongly
bonded to either biological parent. The guardian ad litem recommended permanent
custody be granted to JFS.
{¶28} The court found the children deserved to be in a stable, loving
environment where they can thrive and have their needs met on a daily basis. The
court explained that extending temporary custody of the children to allow the parents to
work on their case plan was not in the children’s best interest, because it appears from
the evidence the parents will not be able to remedy the initial problems in the case at
any time within the foreseeable future. The court concluded it was in the best interest of
the children to grant permanent custody to JFS for purposes of adoption.
{¶29} Based upon the foregoing, we find the trial court’s finding it was in the
children’s best interest to grant permanent custody was not against the manifest weight
or based upon insufficient evidence.
{¶30} The third assignment of error is overruled. Stark County, Case No. 2012-CA-00164 9
{¶31} The judgment of the Stark County Court of Common Pleas, Juvenile
Division, is affirmed.
By Hoffman, J.,
Delaney, P.J., and
Farmer, J., concur
s/ William B. Hoffman ________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney ________________ HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
WBH:clw 1211 [Cite as In re S. Children, 2012-Ohio-6265.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: S. CHILDREN : : : : : : JUDGMENT ENTRY : : : : CASE NO. 2012-CA-00164
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas, Juvenile Division, is affirmed. Costs to
Appellant.
s/ William B. Hoffman ________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney ________________ HON. PATRICIA A. DELANEY