[Cite as In re J.B., 2011-Ohio-2561.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
:
: C.A. CASE NO. 10-CA-101
IN RE:
: T.C. CASE NOS. 2008-1655
J.B., JR. AND 2010-362
I.B. :
(Civil Appeal from
: Common Pleas Court,
Juvenile Division)
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of May, 2011.
. . . . . . . . .
Andrew R. Picek, Atty. Reg. No. 0082121, Assistant Prosecuting
Attorney, 50 E. Columbia Street, 4th Floor, P.O. Box 1608,
Springfield, OH 45501
Attorney for Plaintiff-Appellee State of Ohio
Scott A. Ashelman, Atty. Reg. No. 0074325, 733 Liberty Tower, 120
W. Second Street, Dayton, OH 45402
Attorney for Defendant-Appellant R.B.
James Griffin, 8 N. Limestone Street, Suite D, Springfield, OH
45502
Attorney for Guardian ad Litem-Appellee
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This appeal is brought by R.B., the mother of J.B., Jr.
and I.B., from a judgment of the juvenile court that granted
permanent custody of her two children to the Family and Children
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Services of Clark County (“FCSCC”).
{¶ 2} R.B. has eleven children, but does not have custody of
any of them. She previously lost permanent custody of three
children by order of the juvenile court of Clark County. R.B.’s
tenth child, J.B., Jr., was born on September 25, 2008. FCSCC
filed a complaint for protective supervision on October 2, 2008,
asking that J.B., Jr. be adjudicated as a dependent child pursuant
to R.C. 2151.04(C). The juvenile court appointed a Guardian ad
Litem for J.B., Jr. On October 20, 2008, the juvenile court found
that J.B., Jr. was a dependent child and entered a protective
supervision order. J.B., Jr. remained in the custody of his
parents, who were ordered to undergo drug and alcohol assessments,
maintain stable housing and employment, cooperate with
parenting/psychological evaluations, and follow recommendations
in a case plan. Upon motion of FCSCC, the juvenile court extended
the protective supervision order on April 13, 2009, July 1, 2009,
and October 13, 2009.
{¶ 3} In early February of 2010, FCSCC filed a complaint for
temporary shelter care custody, alleging that J.B., Jr. was a
dependent child pursuant to R.C. 2151.04(A) and a neglected child
pursuant to R.C. 2151.03(A)(2) and (3). On February 19, 2010,
the juvenile court ordered that J.B., Jr. be placed in the temporary
shelter care of FCSCC.
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{¶ 4} R.B.’s eleventh child, I.B., was born on March 11, 2010.
FCSCC filed a motion for temporary shelter care custody of I.B.
on March 12, 2010, alleging that I.B. was a dependent child pursuant
to R.C. 2151.04(A) and a neglected child pursuant to R.C.
2151.03(A)(2) and (3). The juvenile court granted FCSCC’s motion
and appointed a Guardian ad Litem for I.B.
{¶ 5} The juvenile court subsequently granted temporary
custody of J.B., Jr. and I.B. to FCSCC. In August of 2010, FCSCC
filed motions for permanent custody of J.B., Jr. and I.B. On
September 20, 2010, following a two-day permanent custody trial,
the juvenile court awarded permanent custody of J.B., Jr. and I.B.
to FCSCC. The mother, R.B., filed a notice of appeal. The father
of the two children did not file a notice of appeal.
ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
MOTHER IN VIOLATION OF O.R.C. §2151.414, AND THE U.S. AND OHIO
CONSTITUTIONS WHEN IT TERMINATED APPELLANT’S PARENTAL RIGHTS BY
GRANTING PERMANENT CUSTODY OF HER MINOR CHILDREN, J.B., AND I.B.,
TO FAMILY AND CHILDREN’S SERVICES OF CLARK COUNTY.”
{¶ 7} A reviewing court must affirm a trial court’s decision
regarding permanent custody unless it is unsupported by clear and
convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is the amount of proof that will produce in the mind of
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the trier of fact a firm belief or conviction as to the allegations
to be proved. It is an intermediate standard of proof, being more
than a preponderance of the evidence and less than evidence beyond
a reasonable doubt. State v. Ingram (1992), 82 Ohio App.3d 341;
Cross v. Ledford (1954), 161 Ohio St. 469, 477.
{¶ 8} R.B. argues that the juvenile court’s award of permanent
custody of the minor children to FCSCC was against the manifest
weight of the evidence. A weight of the evidence argument
challenges the believability of the evidence and asks which of
the competing inferences suggested by the evidence is more
believable or persuasive. State v. Hufnagle (Sept. 6, 1996),
Montgomery App. No. 15563. “Judgments supported by some
competent, credible evidence going to all the essential elements
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 Const. Co. (1978), 54 Ohio St.2d 279, at syllabus.
{¶ 9} R.C. 2151.414(B)(1) provides that the court may grant
the motion of an agency seeking permanent custody of a child if
it finds, by clear and convincing evidence, that it is in the best
interest of the child to award permanent custody of the child to
the agency, and the court makes one of the four alternative findings
set out in R.C. 2151.414(B)(1). One of those alternative findings
is that the child “cannot be placed with either of the child’s
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parents within a reasonable time or should not be placed with the
child’s parents.” R.C. 2151.414(B)(1)(a). Another is that the
child “has been in the temporary custody of one or more public
children’s services agencies for twelve or more months out of a
consecutive twenty-two month period.” R.C. 2151.414(B)(1)(d).
{¶ 10} At the time of the permanent custody hearing, neither
J.B., Jr. nor I.B. had been in the temporary custody of FCSCC for
twelve or more months out of a consecutive twenty-two month period.
Therefore, in order to grant FCSCC’s motion for permanent custody,
the juvenile court was required to find that 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.” R.C.
2151.414(B)(1)(a).
{¶ 11} R.C. 2151.414(E) provides, in part:
{¶ 12} “In determining at a hearing held pursuant to division
(A) of this section * * * whether a child cannot be placed with
either parent within a reasonable period of time or should not
be placed with the parents, the court shall consider all relevant
evidence. If the court determines, by clear and convincing
evidence, at a hearing held pursuant to division (A) of this section
* * * that one or more of the following exist as to each of the
child’s parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or
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should not be placed with either parent:
{¶ 13} “(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.
{¶ 14} * *
{¶ 15} “(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.”
{¶ 16} The juvenile court found that J.B., Jr. and I.B. cannot
be placed with either parent within a reasonable period of time
or should not be placed with either parent. The juvenile court
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explained:
{¶ 17} “The children should not be returned to the parents for
the following reasons:
{¶ 18} “A. Following removal of the children outside the home
of the parents, and notwithstanding reasonable case planning and
diligent efforts by the agency to assist the parents, they have
failed to remedy the problems that caused the children to be placed
outside the home.
{¶ 19} “B. The parents have demonstrated a lack of commitment
and dedication toward the children by failing to regularly support
the child. Furthermore, the parents frequently failed to visit
with the children with the opportunity to do so. The parents have
failed to attend many medical appointments of the children. Their
lack of concern demonstrates their lack of commitment to the needs
of the children.” (Dkt. 182, p. 5-6.)
{¶ 20} The clear and convincing evidence of record established
that R.B. has failed repeatedly to meet the needs of J.B., Jr.
and I.B. and to comply with the requirements of her case plan and
orders of the juvenile court. For example, R.B. failed to complete
the Family Dependency Treatment Court program, failed to complete
the mental health and drug and alcohol programming offered to her,
failed to get J.B., Jr. to Head Start, failed to complete the program
Parents as Partners, failed to regularly visit with her children,
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and failed to find employment and meet child support obligations.
In short, R.B. failed to demonstrate any reasonable probability
that she will change her habits and practices in a way that will
provide a suitable home for her children.
{¶ 21} R.B. argues that the juvenile court’s finding is against
the manifest weight of the evidence because she testified that
she wants to improve for the benefit of her children and that she
would be able to complete all the goals of her case plan if she
were given an additional six months to work toward them. Brief,
p. 11. Further, R.B. claims that she is “likely disabled” and
that “[i]t is entirely possible” that she “simply cannot obtain
a job through no fault of her own.” Brief, p. 10.
{¶ 22} The juvenile court did not find R.B.’s testimony
credible. The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State
v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 23} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder’s
determinations of credibility. The decision whether, and to what
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extent, to credit the testimony of particular witnesses is within
the peculiar competence of the factfinder, who has seen and heard
the witness.”
{¶ 24} The juvenile court’s finding that J.B., Jr. and I.B.
cannot be placed with either parent within a reasonable period
of time or should not be placed with either parent is supported
by the competent, credible evidence of record and is therefore
not against the manifest weight of the evidence.
{¶ 25} The juvenile court found that it was in the best interest
of J.B., Jr. and I.B. to grant permanent custody of the children
to FCSCC. In determining the best interests of the child, R.C.
2151.414(D)(1) requires the court to consider, among other relevant
factors, the following:
{¶ 26} “(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;
{¶ 27} “(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;
{¶ 28} “(c) The custodial history of the child, including
whether the child has been in the temporary custody of one or more
public children services agencies or private child placing agencies
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for twelve or more months of a consecutive twenty-two-month period,
or the child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period
and, as described in division (D)(1) of section 2151.413 of the
Revised Code, the child was previously in the temporary custody
of an equivalent agency in another state;
{¶ 29} “(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;
{¶ 30} “(e) Whether any of the factors in divisions (E)(7) to
(11) of this section apply in relation to the parents and child.”
{¶ 31} The juvenile court identified the following reasons for
finding that it was in the best interest of J.B., Jr. and I.B.
to grant permanent custody of the children to FCSCC:
{¶ 32} “A. There is a reasonable probability that the children
can be adopted. The children have lived in legal limbo for many
months. The children would benefit greatly from a permanent,
secure home.
{¶ 33} “b. The children have had not regular and meaningful
contact with their biological family.
{¶ 34} “c. There is no probability that the parents will be
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able to provide a safe, secure and appropriate home for the children
any time soon.
{¶ 35} “d. The Guardian ad Litem for the children recommended
that the motion for permanent custody be granted.
{¶ 36} “e. Neither parent has substantially remedied the
conditions that caused removal of the children.
{¶ 37} “f. There are no known or interested relatives on either
side of the family that can care for their children.
{¶ 38} “g. The wishes of the children as expressed directly
by the Guardian ad Litem indicate a strong desire to be placed
in a loving, secure, permanent home that neither parent can provide.
{¶ 39} “h. There is no safe, appropriate, harmonious and
loving relationship between the children and the children’s parents
or extended family. The children will benefit from continued
removal from the birth families. There is no indication of a
significant risk or harm to the children by not returning the
children to the parent. In fact, the evidence is clear that the
children will benefit significantly if the children is [sic] not
returned to either parent.” (Dkt. 182, p. 6-7.)
{¶ 40} The clear and convincing evidence of record established
that it would be in the best interest of J.B., Jr. and I.B. to
be placed in the permanent custody of FCSCC. The juvenile court’s
finding is supported by the recommendation of the Guardian ad Litem
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and the credible testimony of record. Consequently, we cannot
find that the juvenile court’s finding is against the manifest
weight of the evidence.
{¶ 41} The assignment of error is overruled. The judgment of
the trial court will be affirmed.
FROELICH, J. and HALL, J. concur.
Copies mailed to:
Andrew R. Picek, Esq.
Scott A. Ashelman, Esq.
James Griffin, Esq.
Hon. Joseph N. Monnin