[Cite as In re T.N.T., 2013-Ohio-861.] STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE: ) CASE NO. 12 JE 25 ) T.N.T. ) ) OPINION ) )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Juvenile Division, of Jefferson County, Ohio Case No. 2010 DN 4
JUDGMENT: Affirmed.
APPEARANCES: For Appellant-Father: Atty. Shawn M. Blake 4110 Sunset Blvd. Steubenville, Ohio 43952
For Appellee-JCDJFS: Atty. M. Catherine Savage-Dylewski Jefferson County Justice Center 16001 State Route 7 Steubenville, Ohio 43952
For Appellee-Mother: Atty. Eric Reszke Sinclair Building, Suite 810 Steubenville, Ohio 43952
Guardian Ad Litem: Atty. Craig Allen 500 Market Street, Suite 10 Steubenville, Ohio 43952
JUDGES:
Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: March 6, 2013 [Cite as In re T.N.T., 2013-Ohio-861.] WAITE, J.
{¶1} This appeal was filed from the trial court’s decision to terminate the
custodial rights of both the natural mother and father of two children. After an
extended placement in a foster home and due to the apparent inability of the natural
mother to provide consistent care for the children during the incarceration of the
natural father, and in the absence of any suitable placement with a relative or other
arrangement by the natural father, Appellee, the Jefferson County Department of Job
and Family Services, was awarded permanent custody of the children. Appellant, the
natural father who is currently incarcerated, opposes the termination of his parental
rights. The natural mother is not party to this appeal and does not contest the trial
court’s decision to terminate her parental rights. Because the trial court properly
applied the applicable law and complied with statutory requirements, and the
information in the record supports the decision entered by the court, the judgment of
the trial court is affirmed.
Factual and Procedural History
{¶2} Appellant/father and natural mother have three children in common.
The pair never married, but cohabited for the majority of the period relevant to this
appeal. The custody of two of the couple’s three children was at issue before the trial
court. This appeal involves only T.N.T. Appellant has filed a separate appeal as to
the other child.
{¶3} Appellee, Jefferson County Department of Job and Family Services,
Child Services Division (“JCDJFS”), sought and received an order from the trial court
terminating Appellant’s parental rights and permanently transferring custody of T.N.T. -2-
and one of his two siblings. T.N.T. was born on August 27, 2006. The children were
first removed from the home in October of 2008 when T.N.T.’s younger sibling was
born addicted to methadone. After the drug was detected in the newborn, the mother
admitted she used Appellant’s prescription methadone during the last month of her
pregnancy. According to the trial court’s September 13, 2012 entry permanently
transferring custody to Appellee, the infant was adjudicated as abused in October of
2008. (9/13/12 J.E.) T.N.T. was found by the court to be a dependent child at that
same time. (9/13/12 J.E.)
{¶4} Both children were returned to their parents on February 27, 2009, but
Appellee retained protective supervisory authority. According to Appellee,
throughout this supervisory period the natural parents were not compliant with the
portion of their case plan that required them to participate in “Help Me Grow,” a
program that provides family services. The pair did initially comply with drug and
alcohol screening. In March of 2009, a month after the children were returned to their
parents, the mother was charged with and convicted on two counts of child
endangerment for leaving the children unattended in a parked car. Despite some
noncompliance with the care plan and the convictions for child endangering,
protective supervision ended and the case was closed on November 4, 2009.
{¶5} Appellee’s next involvement with the children began nearly three
months later with a January 29, 2010 report that Appellant was discovered to be
unconscious on the floor of the house while the two unattended children were eating
food from the floor in the kitchen. A neighbor entered the house and remained with -3-
the children until their mother returned from the grocery store. When Appellee
contacted the parents they both denied these allegations. During a subsequent
unannounced follow-up visit, both parents agreed to complete a drug screening to
determine whether further involvement with Appellee was necessary. The pair did
not complete this screening and did not contact or respond to Appellee’s attempts to
follow up after the alleged incident and unannounced visit.
{¶6} On February 15, 2010, approximately one month later, Appellee
received a late night call that the children were walking down the road with their
mother, who had apparently left the house due to a domestic dispute. The mother
reportedly appeared to be intoxicated in some fashion and the two children were
inadequately clothed for the weather, dirty, and unkempt. According to the
information provided to the police who responded to the call, a domestic dispute
arose between the mother and Appellant over the prescription drug, Xanax. Appellee
intervened and the natural mother was transported to the hospital for a mental health
evaluation. Despite statements placing Appellant in the family home and his
involvement in the dispute that led the children and their mother to leave the house,
Appellant testified at the custody hearing that he was not living in the home at that
time and claimed that he was absent on the night in question. The children were
again removed from the home and placed in foster care. The children were found by
the court to be neglected as defined by R.C. 2151.03, and Appellee was granted
temporary custody by the court. The children have remained in foster care and in the -4-
same foster home since their removal. According to Appellee, the children have
bonded with their foster parents and the other foster children in the home.
{¶7} On April 9, 2010, after the second removal, both parents signed a case
plan. It is undisputed that the natural mother never complied with the terms of her
case plan which required her to have “an assessment,” follow up with any
recommended treatment, and to visit the children on a regular schedule. (Appellee’s
Brf., p. 4.) Appellee describes the natural mother as noncompliant for failure to
“consistently follow through” with counseling and visitation. (Appellee’s Brf., p. 4.)
During the custody hearing, Appellee listed for the court the mother’s cancellations
and no-show incidents between May, 2010 and March of 2012. Appellee also placed
into evidence the mother’s various drug, assault, and theft charges during the same
period.
{¶8} Appellant was also required by the case plan to have a drug and
alcohol assessment and to visit the children. Appellant was arrested on felony drug
charges four days after signing the case plan. Appellant was convicted of a felony
drug offense and sentenced to three years of incarceration. Appellant has been
incarcerated since April 13, 2010, and is not scheduled for release until April 13,
2013. Prior to incarceration, Appellant was admittedly addicted to methadone and
oxycodone, allegedly as a result of a 2007 injury. According to Appellee, Appellant
has not undergone the agreed drug and alcohol assessment. He still suffers from
back pain as a result of the injury which he treats with over-the-counter medication
because he does not have access to his prescription medications while in prison. -5-
Appellant provided Appellee with the names of two relatives who might be able to
take care of the children until his release from prison. However, he was only able to
provide contact information for one of the two. Appellee contacted this relative, who
indicated that she was willing to take the children. When Appellee visited her to
determine whether suitable accommodations were available for the children, she did
not have plans to move from the one-bedroom apartment she shared with her
significant other. Because she was unable to provide any accommodation for the
children, her housing was deemed unsuitable and Appellee did not approve the
placement.
{¶9} The caseworker assigned to the children expressed her opinion that
both were too young to self-protect and were at an age when the constant attention
and care of an adult was needed. According to the caseworker, due to the long
substance abuse history of both parents, their inattention to the terms of the care
plans, nonattendance at visitation, and the absence of any attempt to contact the
children by other means, neither parent appeared able to provide the care and
attention needed. In addition to other factors, both the caseworker and the foster
family expressed concern that the children, especially T.N.T., were “acting out”
towards each other and Appellee’s employees, during and after visitation. (Tr., pp.
30-31, 35-36.) The foster family, however, had taken steps to address the behaviors
and T.N.T. was receiving behavioral health treatment. (Tr., pp. 35-37.) The record
reflects that prior to the custody hearing, the behaviors had improved. (Tr., p. 35.)
According to the caseworker, the children could not continue to receive the care and -6-
services they need without a permanent transfer of custody. The caseworker
reported having no concerns with the foster family, emphasized the loving
environment, and indicated that the family was considering adoption. (Tr., p. 37.)
The caseworker testified that permanent transfer of custody was necessary to allow
Appellee to implement a specific plan to seek adoptive parents for the children.
{¶10} According to Appellant, Appellee initially opened a case file due to
suspected drug use in 2008. Appellant maintains that he was referred to “Jefferson
Behavioral Health” where “it was determined that he did not need addiction therapy
at that time.” (Appellant’s Brf., p. 3.) Appellant alleges that after the children were
returned in February of 2009, he complied with the case plan. He claimed that the
endangerment charges and other incidents that were reported in 2010 had to do with
the natural mother, with whom he was no longer cohabiting due to “relationship
issues.” (Appellant’s Brf., p. 3.) According to Appellant, prior to losing his job in
2009, he had held a steady job for about three years and was providing for his family.
Appellant admits that he signed the case plan on April 9, 2010, was arrested four
days later on April 13, and that he was subsequently convicted for illegal assembly or
possession of chemicals for the manufacture of methamphetamines in the vicinity of
a juvenile. Appellant maintains that his dependence on pain medication was the
result of an old back injury and that he has remained sober during his incarceration,
has lost weight in order to combat the pain, and has completed several educational
programs in prison including parenting classes and substance abuse sessions. (Tr.,
pp. 90-94.) Beyond his testimony Appellant provided no evidence demonstrating his -7-
sobriety or actual attendance at educational programs or of the other progress he
described. According to Appellant, he did not realize visitation was an option while
he was in prison and this is why he has not visited with his children. (Tr., p. 89.)
{¶11} According to Appellee, Appellant has made no attempt to even contact
his children during his incarceration. T.N.T. was three years old when last contacted
by Appellant and is now six. Appellee stated that both children were doing well in
foster care, having bonded with the foster parents whom they refer to as mom and
dad, and that their behavioral issues have improved in the foster home. (Tr., p. 35.)
The foster parents are interested in adopting the children. No other relative is
seeking custody of the children. Appellee has no concerns about the ability of the
foster family to adopt the children. (Tr. pp. 36-40.) Appellee believes that a
permanent placement with the foster mother who is the primary caregiver, is in the
best interest of both children.
Argument and Law
Assignment of Error
THE MAGISTRATE’S DECISION AND THE JUVENILE COURT’S
AFFIRMATION OF SAID DECISION, WHICH TERMINATED THE
PARENTAL RIGHTS OF THE APPELLANT, WAS AN ABUSE OF
DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶12} Appellant contends that the court failed to take into account limitations
on his ability to comply with the case plan caused by his felony conviction and -8-
resulting incarceration when deciding to terminate his parental rights. He believes
that Appellee, without any communication from Appellant in any form, should have
undertaken to arrange visitation at his place of incarceration and taken additional
steps to identify, locate, and evaluate his other relatives in an effort to find a stable
placement for the children. Appellant disagrees with the court’s conclusion that
Appellee had made reasonable efforts to reunite the children with their natural
mother and to avoid placement of the children outside the home of their natural
parents. Appellant also contests the court’s conclusion that the children had been
successfully integrated into the home of foster parents who are interested in adopting
the children, because testimony during the transfer hearing indicated that the foster
father had been absent from the home for approximately one month prior to the
hearing and was no longer in communication with Appellee. Appellant does not
challenge the process used by the court, the sufficiency of the transfer hearing, or the
form of the court’s decision to transfer custody. Instead, Appellant argues that the
court, when applying R.C. 2151.414(E) and 2151.414(D)(1), should have come to a
different conclusion.
{¶13} Natural parents have a “fundamental liberty interest * * * in the care,
custody, and management” of their children that is protected by the Fourteenth
Amendment of the United States Constitution. Santosky v. Kramer, 455 U.S. 745,
753, 102 S.Ct. 1388 (1982).
{¶14} “[A] court exercising Juvenile Court jurisdiction is invested with a very
broad discretion, and, unless that power is abused, a reviewing court is not warranted -9-
in disturbing its judgment.” In re Anteau, 67 Ohio App. 117, 119, 36 N.E.2d 47, 48
(1941). “The term ‘abuse of discretion’ connotes more than an error of law or of
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable * * *.” In re Jane Doe 1, 57 Ohio St.3d 135, 137, 566 N.E.2d 1181,
1184 (1990), citing State v. Adams, 62 Ohio St.2d 151, 157, 172-173, 404 N.E.2d
144, 148-149 (1980). A juvenile court’s decision to terminate parental rights and
transfer permanent custody of a minor child must be supported by clear and
convincing evidence. Santosky, supra, paragraph three of the syllabus. “Clear and
convincing evidence is that measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established. It is [an] intermediate [standard], being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
(Emphasis sic). Cross v. Ledford, 191 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{¶15} When reviewing the decision of a juvenile court to determine whether it
is supported by clear and convincing evidence, “a reviewing court may not as a
matter of law substitute its judgment as to what facts are shown by the evidence for
that of the trial court” because the “trial judge, having heard the witnesses testify, was
in a far better position to evaluate their testimony th[a]n a reviewing court.” Id. at 478.
“Where the evidence is in conflict, the trier of facts may determine what should be
accepted as the truth and what should be rejected as false.” Id. “Judgments
supported by some competent, credible evidence going to all the essential elements -10-
of the case will not be reversed by a reviewing court as being against the manifest
weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,
376 N.E.2d 578 (1978), syllabus.
{¶16} When a motion for permanent custody is filed by a children services
agency, the trial court’s decision whether to grant permanent custody of a child to the
agency is governed by R.C. 2151.414(B)(1), which provides:
“[T]he court may grant permanent custody of a child to [the agency] if
the court determines at the hearing * * * by clear and convincing
evidence, that it is in the best interest of the child to grant permanent
custody of the child to the agency that filed motion for permanent
custody and that any of the following apply:
(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 * * * for twelve or more moths of a
consecutive twenty-two-month period, or the child has been in the
temporary custody of one or more public services agencies * * * for -11-
twelve or more months of a consecutive twenty-two-month period and *
* * the child was previously in the temporary custody of an equivalent
agency in another state.
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 [to be an abused, neglected, or dependent child]
or the date that is sixty days after the removal of the child from home.
When determining the best interest of a child at a hearing pursuant to a motion for
permanent custody pursuant to R.C. 2151.414(D)(1), “the court shall consider all
relevant factors, including, but not limited to, the following:”
(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 * * * for twelve or more months of a consecutive twenty-two-
month period, * * *; -12-
(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.
For the purposes of division (D)(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 [to be an abused, neglected, or dependent child]
or the date that is sixty days after the removal of the child from home.
While the trial court is permitted to find that it is in the best interest of the child that
custody be permanently transferred to a public agency after having considered the
factors identified in R.C. 2151.414(D)(1), under R.C. 2151.414(D)(2) a court “shall
commit the child to the permanent custody of a public children services agency” “if all
of the following apply:”
(a) The court determines by clear and convincing evidence that one or
more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent. -13-
(b) The child has been in an agency’s custody for two years or longer,
and no longer qualifies for temporary custody pursuant to division (D) of
section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned permanent
living arrangement pursuant to division (A)(5) of section 2151.353 of the
Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody of
the child.
When determining whether a child can be placed with either parent within a
reasonable period of time, or whether a child should be placed with either parent
pursuant to R.C. 2151.414(E), a court “shall consider all relevant evidence” and
determine “by clear and convincing evidence” that “one or more of the following exist
as to each of the child’s parents:”
(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 -14-
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.
(2) Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the court holds the hearing [on the motion for
permanent custody] * * *
(3) The parent committed any abuse * * * against the child, caused the
child to suffer any neglect as described in section 2151.03 of the
Revised Code, or allowed the child to suffer any neglect as described in
section 2151.03 of the Revised Code between the date that that the
original complaint alleging abuse or neglect was filed and the date of
the filing of the motion for permanent custody;
(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; -15-
(5) The parent is incarcerated for an offense committed against the
child or a sibling of the child;
***
(9) The parent has placed the child at substantial risk of harm two or
more times due to alcohol or drug abuse and has rejected treatment
two or more times or refused to participate in further treatment two or
more times after a case plan * * * requiring treatment of the parent was
journalized as part of a dispositional order issued with respect to the
child or an order was issued by any other court requiring treatment of
the parent.
(10) The parent has abandoned the child.
(12) The parent is incarcerated at the time of the filing of the motion for
permanent custody or the dispositional hearing of the child and will not
be available to care for the child for at least eighteen months after the
filing of the motion for permanent custody or the dispositional hearing.
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the child.
(14) The parent for any reason is unwilling to provide food, clothing,
shelter, and other basic necessities for the child or to prevent the child -16-
from suffering physical, emotional, or sexual abuse or physical,
emotional, or mental neglect.
(15) The parent has committed abuse * * * against the child or caused
or allowed the child to suffer neglect as described in section 2151.03 of
the Revised Code, and the court determines that the seriousness,
nature, or likelihood of recurrence of the abuse or neglect makes the
child’s placement with the child’s parent a threat to the child’s safety.
(16) Any other factor the court considers relevant.
As reflected in R.C. 2151.414(B)(1), when a trial court rules on a motion for
permanent transfer of custody, it must first determine whether a transfer of custody is
in the child’s best interest and then determine whether any of the factors listed in
(B)(1) also apply. In this instance, due to the duration of the child’s removal from the
household, the standard to be applied is that found in R.C. 2151.414(D)(2), which
requires a best interests finding and permanent transfer of custody if four factors are
met. There is no dispute in this instance that the children have been in the custody
of Appellee for more than two years, that T.N.T., now six, cannot be placed in an
independent planned permanent living arrangement, and that no further extension of
the temporary custody order is available. Hence, sections (b)(c) and (d) of R.C.
2151.414(D)(2) are satisfied.
{¶17} Moving on, if the court determines by clear and convincing evidence
that one or more R.C. 2151.414(E) factors exist and that the child cannot be placed
with his or her parents within a reasonable time or should not be placed with his or -17-
her parents, then custody “shall” be permanently transferred to Appellee. The trial
court in this instance made twenty-two specific findings in its decision to transfer
custody. Among these findings are: that T.N.T. had been previously removed from
the home, the child had been adjudicated to be dependent, the child’s sibling had
been adjudicated abused, Appellant failed to comply with the case plan without
justification, Appellant was currently incarcerated and this would continue until April
of 2013, and that Appellant had “demonstrated a lack of commitment toward the
children by failing to regularly support, visit or communicate with the children when
able to do so or by other actions showing an unwillingness to provide an adequate
permanent home for the children.” (9/13/12 J.E.) In addition to the findings
specifically noted in the judgment entry, T.N.T. was adjudicated to be neglected at
the inception of the current proceeding. The record also discloses the fact that while
Appellant has been employed “on and off,” he has no specific employment
arrangement in place for his planned release from prison. By his own admission,
prior to his arrest Appellant was apparently staying with a friend and maintained no
house or apartment of his own. Appellant has no plan or living arrangement for
himself or the children after his release from prison. Although he had suggested that
there may exist relatives who might care for the children until his release, the only
individual who came forward was his adult daughter, whose one bedroom apartment
could not properly accommodate the children. Appellant was apparently unable or
unwilling to provide contact information for any other individual willing to take -18-
responsibility for the children prior to his release or to identify any specific date on
which he would be able to provide care and accommodation for the children himself.
{¶18} Under these circumstances the findings reflected by the court and the
record below support the conclusion, at a minimum, that “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” and that the child could not
be placed with his parent within a reasonable time. Appellant does not dispute that
he has failed to contact or even attempt to contact his children in any way during the
entire duration of his incarceration; this failure extends to letters and telephone calls,
in addition to visitation. Appellant argues that Appellee should be charged with the
responsibility of initiating and arranging visitation and should be required to locate his
other relatives, but offers no legal basis for this assertion and no explanation of the
absence of written or telephone contact. Nothing in this record suggests that the trial
court abused its discretion when determining Appellant showed a lack of commitment
toward T.N.T., or that transfer of custody was in the best interest of the child in this
instance.
{¶19} In addition to meeting the requirements of R.C. 2151.414(D)(2), the trial
court also explicitly considered the additional factors listed R.C. 2151.414(D)(1)
concerning the needs of the children. The court noted that the children were in need
of a legally secure permanent placement and had been in foster care for more than
two years. The court found that the children had been successfully integrated into
the foster home, that the foster parents were interested in adopting the children, and -19-
that the guardian ad litem recommended permanent transfer of custody to Appellee.
While it is certainly true that the circumstances of Appellant’s incarceration impaired
his ability to comply with the case plan as written, it is not the fact of Appellant’s
incarceration, but his failure to take steps to mitigate, compensate for, or work with
Appellee to create a modification that demonstrates his lack of commitment and
readiness to take responsibility for his children that underlies this decision. Appellant
claims he took some classes in prison on parenting and anger management, but
does not provide evidence of completion, and apparently did not attempt to see if the
classes could be recognized or approved by Appellee. Similarly, Appellant refers to a
single clean drug test, but again provides no evidence and apparently never provided
or attempted to provide the test results to Appellee.
{¶20} Other districts have found that incarcerated parents who made more
extensive attempts to comply with their case plans have nevertheless failed to
establish their ability to care for their children to overcome a decision that permanent
transfer of custody is in the child’s best interests. These include In re Vance, 3d Dist.
Nos. 05-03-16, 05-03-17, 05-03-18, 2003-Ohio-6991 (where the natural mother,
frequently incarcerated, provided attendance records for classes she took in prison,
but failed to provided information to establish that the classes were “similar or
identical to those considered acceptable by the case plan” ¶20); In re S.S., 10th Dist.
No. 05AP-204, 2005-Ohio-4282 (where the court found that Appellant had made
efforts at stabilizing her life, including evidence that she completed parenting classes
and had participated in drug screening, but the court could not “ignore appellant's -20-
extended absences during D.S[.]’s early years of life and the effects of these
absences.” ¶35); and In re Strader, 5th Dist. No. 2008 CA 00255, 2009-Ohio-1292
(where appellant, although incarcerated, established paternity and sent his child mail
on his birthday and Christmas, contacted the child’s caseworker for updates on the
child’s welfare, and completed Responsible Family Life Skills and Dad 101 classes
while in prison, but was unemployed when incarcerated, had no promise of
employment upon release, and planned to live in a shelter on release until he could
find employment but was not certain if the shelter would allow children. The court
found that permanent transfer of custody was in the child’s best interest, due in part
to the father’s 18 month absence from the child’s life and the absence of employment
and stable housing.) Appellant in this instance has not taken even nominal steps in
order to demonstrate his commitment to, and ability to take care of, T.N.T. Prior to
his incarceration he transferred responsibility to the natural mother, who at the
hearing he described as solely responsible for any neglect and mistreatment the
children suffered. At the time he was incarcerated he was unemployed and lacked
stable housing. At the time of hearing he was incarcerated and has no plan for either
employment or housing. He has been continually absent from T.N.T.’s life and made
no attempt to contact the child in three years. The findings made by the court and
the information contained in the record below do not lead us to conclude that the trial
court abused its discretion or that the judgment was against the manifest weight of
the evidence. The trial court was in the best place to evaluate the information before
it, and Appellant has identified no defect in the proceedings or the record that -21-
undermines the determination made by the trial court. In re Anteau, supra, at 48.
Appellant’s sole assignment of error is overruled.
Conclusion
{¶21} The trial court complied with the procedure prescribed by R.C.
2151.414 and applied the appropriate burden of proof. Appellant has not identified a
defect or error, and argues only that the trial court should have reached a different
conclusion. The record below does not reflect an abuse of discretion occurred. The
judgment entered by the trial court is supported by the evidence in the record. The
judgment of the trial court is affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.