In re W.H.

2015 Ohio 4361

• Court: Ohio Court of Appeals
• Decided: October 19, 2015
• Docket: 2015CA00120
• Status: Published

Opinion

[Cite as In re W.H., 2015-Ohio-4361.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF W.H., JR. : JUDGES: : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2015CA00120 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2014JCV00586

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 19, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant L.P.

BRANDON J. WALTENBAUGH ROBERT G. ABNEY Stark County Department of 116 Cleveland Ave., NW Job and Family Services Suite 500 300 Market Avenue, North Canton, OH 44702 Canton, OH 44702 Stark County, Case No. 2015CA00120 2

Baldwin, J.

{¶1} Appellant L.P. appeals a judgment of the Stark County Common Pleas

Court, Juvenile Division, awarding appellee Stark County Department of Job and Family

Services (SCDJFS) permanent custody of her minor child, W.H., Jr.

STATEMENT OF FACTS AND CASE

{¶2} W.H., Jr. was born on June 15, 2014. On June 16, 2014, appellee filed a

complaint alleging that the child was dependent, neglected, and abused and seeking

temporary custody. The child was found to be dependent on July 9, 2014, and

temporary custody was granted to appellee. On March 31, 2015, appellee filed a

motion seeking permanent custody of the child.

{¶3} Appellant has a history of abusing cocaine, crack, and crystal meth. She

was incarcerated in Florida from 2002-2007 for possession of crystal meth with intent to

sell and deliver. She was arrested in 2012 for possession of drug paraphernalia, in

2014 for theft, and in 2015 for possession of drug paraphernalia, possession of

dangerous drugs, possession of drug abuse instruments, and misuse of credit cards.

She has been in and out of drug treatment from the age of 18, and was 37 years old at

the time of the permanent custody hearing. During the pendency of the case, she

tested positive for cocaine and other opiates twice, and refused drug screening

numerous times.

{¶4} Appellant's case plan objectives included substance abuse treatment,

parenting classes, and eventually obtaining stable housing and employment. Except for

completing her initial substance abuse assessment with Quest, appellant did not Stark County, Case No. 2015CA00120 3

complete any other portion of the case plan. She did not follow up on the

recommendations of Quest regarding treatment for substance abuse.

{¶5} She attended nine visits with the child. She did not visit from December

11, 2014, until May 28, 2015. During the first visit with the child, she was under the

influence of drugs. She regularly arrived late to visits and left early, leaving the room

multiple times during visits.

{¶6} Appellant was incarcerated from February of 2015 through May 13, 2015.

When appellant was released from jail, she was placed on probation with Portage

County and ordered to comply with drug treatment. She was living at the Quest

Deliverance House, an inpatient drug treatment facility, at the time of the permanent

custody hearing. She tested negative for drugs during the weeks between her

placement at the facility and the hearing.

{¶7} Appellant's counselor at Quest testified at the hearing that appellant was

doing well in the program. She testified that appellant had been compliant in treatment

and receptive to counseling for codependency. The counselor testified that appellant

was very insightful and wanted to remain sober.

{¶8} Appellant testified at the hearing and admitted to the problems in her past.

She sought a six month extension of temporary custody. She was unable to attend

Goodwill parenting until she had demonstrated sobriety for a requisite period of time.

After her release from incarceration she scheduled an appointment with Northeast Ohio

Behavioral Health for a parenting evaluation, as required by her case plan. She

completed her first appointment and had scheduled her other appointments for after the

permanent custody hearing, the earliest appointment available to her. She testified that Stark County, Case No. 2015CA00120 4

she had missed visits prior to her incarceration because there were warrants for her

arrest. She testified that after she detoxed from heroin in jail, she knew that she wanted

to have a better life and be a good mother.

{¶9} W.H. Jr., tested positive for opiates at birth. He went through withdrawal,

causing problems with feeding, tremors, and difficulty swallowing. His head

circumference was not normal size and not developing, and he had a cranial band

placed on his head for three months. After the cranial band was removed, he had

developmental problems related to his head circumference. In addition, he has a low

white blood cell count, a compromised immune system, and the Hepatitis C virus in his

system. The child has physical therapy several times a week and feeding therapy. He

has been hospitalized numerous times. He has been in the same foster placement

since birth.

{¶10} The trial court found that appellant had abandoned the child by virtue of

lack of contact, lack of bonding, failure to support the child, and failure to attempt any

form of reunification. The court further found that appellant could not remedy the

problems leading to the removal of the child within a reasonable period of time. The

court found it in the best interest of the child to grant permanent custody to appellee for

purposes of adoption.

{¶11} Appellant assigns three errors:

{¶12} "I. THE TRIAL COURT ERRED WHEN IT DENIED PATERNAL GREAT

GRANDMOTHER'S OBJECTION TO MAGISTRATE'S DECISION DENYING HER

MOTION TO INTERVENE. Stark County, Case No. 2015CA00120 5

{¶13} "II. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO SCDJFS AND DENYING APPELLANT'S MOTION FOR AN

EXTENSION OF TEMPORARY CUSTODY.

{¶14} "III. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO SCDJFS AS SCDJFS FAILED TO SHOW BY CLEAR AND

CONVINCING EVIDENCE THAT IS [SIC] IN THE BEST INTERESTS OF THE MINOR

CHILD TO GRANT PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE."

I.

{¶15} In her first assignment of error, appellant argues that the court erred in

denying the motion to intervene filed by the child's paternal great grandmother.

Appellant lacks standing to raise this issue on appeal. In re Warren, 5th Dist. Stark No.

2007CA00054, 2007-Ohio-5703, ¶33, citing In Re: Cunningham Children, 5th Dist.

Stark No. 2003CA00054, 2003-Ohio-2805.

{¶16} The first assignment of error is overruled.

II.

{¶17} In her second assignment of error, appellant argues that the court erred in

granting permanent custody to appellee and denying her motion for an extension of

temporary custody. She argues that given a six-month extension, she could have made

substantial progress on her case plan, and that the evidence therefore does not support

the court's finding that she would be unable to remedy the problems that led to the

removal of the child within a reasonable time. Stark County, Case No. 2015CA00120 6

{¶18} A trial court's decision to grant permanent custody of a child must be

supported by clear and convincing evidence. The Ohio Supreme Court has defined

“clear and convincing evidence” as “[t]he measure or degree of proof that will produce in

the mind of the trier of fact a firm belief or conviction as to the allegations 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.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,

18 Ohio St.3d 361, 481 N.E.2d 613 (1985).

{¶19} In reviewing whether the trial court based its decision upon clear and

convincing evidence, “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.”

State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial

court's judgment is “supported by some competent, credible evidence going to all the

essential elements of the case,” a reviewing court may not reverse that judgment.

Schiebel, 55 Ohio St.3d at 74, 564 N.E.2d 54.

{¶20} Moreover, “an appellate court should not substitute its judgment for that of

the trial court when there exists competent and credible evidence supporting the

findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses

and the weight to be given the evidence are primarily for the trier of fact. As the court

explained in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984): Stark County, Case No. 2015CA00120 7

{¶21} “The underlying rationale of giving deference to the findings of the trial

court rests with the knowledge that the trial judge is best able to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.”

{¶22} Moreover, 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); see, also, In re: Christian, 4th Dist. Athens App. No.

04CA10, 2004-Ohio-3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004-

Ohio-2040.

{¶23} Pursuant to 2151.414(B), the court may grant permanent custody of a

child to the movant if the court determines “that it is in the best interest of the child to

grant permanent custody to the agency that filed the motion for permanent custody and

that any of the following apply:

{¶24} “(a) The child is not abandoned or orphaned, has not been in the

temporary custody of one or more public children services agencies or private child

placing agencies for twelve or more months of a consecutive twenty-two month period,

... and the child cannot be placed with either of the child's parents within a reasonable

period of time or should not be placed with the child's parents.* * *

{¶25} "(b) The child is abandoned."

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

consider in determining whether a child cannot or should not be placed with a parent

within a reasonable time. If the court finds, by clear and convincing evidence, the Stark County, Case No. 2015CA00120 8

existence of any one of the following factors, “the court shall enter a finding that the

child cannot be placed with [the] parent within a reasonable time or should not be

placed with either parent”:

{¶27} “(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 parent to remedy the problem that initially caused the child to be placed outside the

home, the parents have failed continuously and repeatedly to substantially remedy the

conditions that caused the child to be placed outside the child's home. In determining

whether the parents have substantially remedied the 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.* * *

{¶28} “(16) Any other factors the court considers relevant.”

{¶29} Appellant has not challenged the finding that she abandoned the child,

which is an independent basis for upholding the decision of the trial court. However, the

court did not err in finding that the child could not be placed with appellant within a

reasonable time.

{¶30} The evidence demonstrated that appellant had a longstanding substance

abuse problem that began when she was 18 years old. Appellant was 37 years old at

the time of trial. Before her incarceration in February of 2015, appellant failed to follow

through with the recommendations stemming from her drug assessment, and failed to Stark County, Case No. 2015CA00120 9

complete any portion of her case plan. She visited the child nine times, often arriving

late and walking out of visits.

{¶31} Appellant made progress in her drug treatment program during the weeks

following her release from prison. However, appellant was living at Quest Deliverance

House, an inpatient treatment program. While she started to work on her case plan,

she could not enter the Goodwill Parenting program until she completed the Quest

Deliverance program, which is a minimum of ninety days. At that time she would have

outpatient aftercare, and the Goodwill program is ten weeks long. The caseworker

testified that appellant could not complete those services within a six-month extension.

Further, appellant would then have to obtain stable employment and housing to meet

the objectives of the case plan before she could be reunified with the child. The court's

finding that the child could not be placed with appellant within a reasonable period of

time and that she failed to remedy the conditions leading to his removal is not against

the manifest weight of the evidence.

{¶32} A trial court's decision to grant or deny an extension of temporary custody

is a discretionary one. In re C.G., 9th Dist. Summit Nos. 24099, 24097, 2008-Ohio-

3773, ¶7. R.C. 2151.415(D)(1) authorizes the trial court to extend temporary custody

for six months only if it finds, by clear and convincing evidence, that such an extension

is in the best interest of the child and that “there has been significant progress on the

case plan of the child, and there is reasonable cause to believe that the child will be

reunified with one of the parents or otherwise permanently placed within the period of

extension.” Stark County, Case No. 2015CA00120 10

{¶33} The caseworker and guardian ad litem agreed that an extension would not

be in the best interest of the child. Appellant started to work on her case plan; however,

the caseworker testified that she could not complete the case plan and make the

lifestyle changes necessary to provide a safe and stable home for the child within the

period of the extension.

{¶34} Despite appellant's progress during the weeks following her release from

prison and the permanent custody hearing, the court did not err in finding that the

evidence demonstrated that the child could not be placed with her in a reasonable

period of time, and did not err in denying her motion for a six-month extension of

temporary custody.

{¶35} The second assignment of error is overruled.

III.

{¶36} In her third assignment of error, appellant argues that the court's finding

that permanent custody was in the best interest of W.H., Jr. was against the manifest

weight of the evidence.

{¶37} 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. 2015CA00120 11

child's need for a legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody.

{¶38} The evidence demonstrated that W.H., Jr. tested positive for opiates at

birth. He went through withdrawal, causing problems with feeding, tremors, and

difficulty swallowing. His head circumference was not normal size and not developing,

and he had a cranial band placed on his head for three months. After the cranial band

was removed, he had developmental problems related to his head circumference. In

addition, he has a low white blood cell count, a compromised immune system, and the

Hepatitis C virus in his system. The child has physical therapy several times a week

and feeding therapy. He has been hospitalized numerous times. He has been in the

same foster placement since birth, and was receiving excellent care through the

services that were being provided him. According to the report of the guardian ad litem,

the child was thriving in the foster home. The caseworker testified that the child was not

strongly bonded to appellant, as she had only visited him nine times, spending less than

twenty hours of time with him during the first year of his life.

{¶39} The trial court's finding that permanent custody was in the best interest of

the child was not against the manifest weight of the evidence.

{¶40} The third assignment of error is overruled. Stark County, Case No. 2015CA00120 12

{¶41} The judgment of the Stark County Common Pleas Court, Juvenile

Division, is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.