[Cite as In re M.P., 2014-Ohio-1655.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
M.P. AND C.S., Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
DEPENDENT CHILDREN
Case No. 2013AP120058, and
2013AP120059
OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Juvenile Court,
Case No. 12JN00433
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2014
APPEARANCES:
For Appellee For Mother
JEFFREY KIGGANS JOHN BRECHBILL
Department of Job & Family Services Assistant Public Defender
389 Sixteenth Street SW 153 N. Broadway
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Guardian for John Pintarich Guardian ad Litem
SHARON BUCKLEY-MIRHAIDARI DAVE DEIBEL
152 North Broadway, Suite 200 6545 Market Ave. N.
New Philadelphia, Ohio 44663 North Canton, Ohio 44721
For Appellant James Smitley
ADAM WILGUS
401 Tuscarawas Street W. - Suite 200
Canton, Ohio 44702
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 2
Hoffman, P.J.
{¶1} In Tuscarawas App. No. 2013 AP 12 0058, Appellant James Smitley
(“Father”) appeals the November 18, 2013 Judgment Entry entered by the Tuscarawas
County Court of Common Pleas, Juvenile Division, which terminated his parental rights,
privileges, and responsibility with respect to his minor child, and granted permanent
custody of the child to Appellee Tuscarawas County Jobs and Family Services
(“TCJFS”). In Tuscarawas App. No. 2013 AP 12 0059, Appellant Kristen Smitley
(“Mother”) appeals the same judgment entry as it relates to the termination of her
parental rights, privileges, and responsibilities.
STATEMENT OF THE FACTS AND CASE
{¶2} Mother and Father (collectively, “Parents”) are married and are the
biological parents of C.S. (dob 3/21/12).1 On September 12, 2012, TCJFS filed a
Complaint for Dependency and Change of Custody due to concerns regarding Mother’s
mental health. Mother had been living with Father and C.S. at the home of Cathy
Smitley, Father’s mother. However, due to an incident which occurred over Labor Day
weekend, Father had received a protection order protecting himself and C.S. against
Mother. Mother was without a residence as a result. TCJFS requested C.S. be placed
in the sole temporary custody of Father.
{¶3} Following an adjudicatory hearing on October 10, 2012, the trial court
ordered Mother and Father to submit to psychological evaluations. The trial court also
ordered C.S. remain in the temporary custody of Father under the protective supervision
1
TCJFS’s involvement with the family included another child, M.P., who was ultimately
placed in the legal custody of her biological father. M.P. is not subject to this Appeal.
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 3
of TCJFS. In addition, the trial court granted Mother supervised visitation with C.S. at
the TCJFS facility. Subsequently, on October 15, 2012, the trial court reviewed the
matter under Juv. R. 6, and ordered C.S. be immediately removed from Father’s home
and placed in substitute care. The trial court granted Father supervised visitation with
C.S. at the TCJFS facility.
{¶4} The trial court conducted an adjudicatory hearing on November 8, 2012, at
which time Mother and Father stipulated to a finding of dependency. The trial court
placed C.S. in the temporary custody of TCJFS, and approved and adopted the case
plans for Parents. C.S. was placed in the temporary custody of a paternal uncle and
aunt. The trial court subsequently granted temporary custody of C.S. back to TCJFS
because his paternal uncle and aunt were no longer able to keep the child in their home
and were unable to pursue legal custody.
{¶5} On September 10, 2013, TCJFS filed a motion for permanent custody.
The trial court conducted a hearing on the motion on November 7, 2013.
{¶6} Elizabeth Benedetto, an ongoing caseworker with TCJFS, testified
regarding Father and Mother’s compliance with their case plans. With respect to
Father, Benedetto stated he was terminated on two occasions from parenting classes,
but finally completed the class on his third attempt. Father completed a psychological
evaluation. Father also completed a drug and alcohol assessment, but disagreed with
the results. Father completed a second drug and alcohol assessment at another facility.
He initially participated in the recommended intensive outpatient therapy program.
Father tested positive for benzodiazepine and opiates at his third meeting. Father had
not provided valid prescriptions for these drugs. Thereafter, Father quit attending the
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 4
program. A third assessment was scheduled at yet another facility, but Father failed to
go to the appointment. Father was employed at Lowes in New Philadelphia, between
December, 2012, and April, 2013. Father was unable to work for a period of time
following a hospitalization. Father informed Benedetto he was looking into social
security disability.
{¶7} Father’s visits with C.S. were suspended on two occasions during the
course of the matter due to missed appointments. Despite Father’s case plan requiring
he have no involvement with law enforcement, Father had had monthly contact with
either the Sheriff’s Department or the New Philadelphia Police Department since
September, 2012. Father was granted two protection orders against Mother during the
case, but dropped both. Father and Mother’s relationship was dysfunctional. For a
time, they attended marriage counseling, but neither could make a decision as to the
fate of the relationship.
{¶8} Father reported he had presented at Barberton Hospital with suicidal
thoughts the month before the hearing. At Father’s request, the hospital set up
counseling services and a drug and alcohol assessment. However, he did not attend
any of the scheduled appointments.
{¶9} With respect to Mother, Bendetto testified Mother completed her parenting
classes and her psychological assessment. Mother reported she was seeing a
counselor at Community Mental Healthcare on a regular basis. When Bendetto
requested confirmation in writing, Mother told her (Bendetto) the counselor had released
her (Mother) from therapy. However, Mother had actually been terminated. Mother
recommenced counseling with Community Mental Healthcare, but only attended for
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 5
three or four sessions. Mother reported attending marriage counseling, but Bendetto
did not have verification of such.
{¶10} Mother was employed as a telemarketer for a fairly significant time.
Although unemployed at the time of the hearing, Mother informed Bendetto she was
actively looking and had sent out her resume.
{¶11} The trial court suspended Mother’s visits with C.S. from February, 2013,
until May, 2013. After three additional missed visits, the trial court again suspended
visitation in July, 2013. As of the date of the hearing, Mother had not visited C.S. since
July.
{¶12} Mother was arrested in January, 2013, for DUI and driving under
suspension. Mother was also arrested once or twice for violating the protection order
Father had against her.
{¶13} Bendetto also testified as to best interest. C.S. had been placed with a
paternal uncle and aunt, but the placement did not work out. C.S. was currently in a
foster home. The foster family has two biological children who are 10 and 13 years old.
C.S. receives a lot of attention.
{¶14} Via Judgment Entry filed November 18, 2013, the trial court terminated
Father and Mother’s parental rights, privileges, and responsibilities, and granted
permanent custody of C.S. to TCJFS. The trial court found C.S. cannot and should not
be placed with either parent within a reasonable time, and it was in C.S.’s best interest
to grant permanent custody to TCJFS.
{¶15} It is from this judgment entry Father appeals in Tuscarawas App. No. 2013
AP 12 0058, assigning as error:
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 6
{¶16} "I. WHETHER 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.
{¶17} "II. WHETHER 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."
{¶18} Mother appeals the same in Tuscarawas App. No. 2013 AP 12 0059,
raising as error:
{¶19} "I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY
TO JOB AND FAMILY SERVICES AS SAID DECISION WAS NOT SUPPORTED BY
CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE. "
{¶20} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
FATHER I, II
MOTHER I
{¶21} We elect to address Father’s two assignments of error and Mother's
assignment of error together. In his first assignment of error, Father maintains the trial
court's finding C.S. could not be placed with him within a reasonable time was against
the manifest weight and sufficiency of the evidence. In his second assignment of error,
Father contends the trial court's finding an award of permanent custody was in the best
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 7
interest of C.S. was against the manifest weight and sufficiency of the evidence. In
Mother’s sole assignment of error, Mother argues the trial court erred in awarding
permanent custody to TCJFS as said decision was not supported by clear and
convincing evidence and was against the manifest weight of the evidence.
{¶22} 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,
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v. Jeffries, Stark App. No. CA5758 (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).
{¶23} 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.
{¶24} 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
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 8
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.
{¶25} 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.
{¶26} 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, the 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.
{¶27} 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
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 9
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶28} As set forth in our statement of the facts and case, supra, we find there
was both sufficient and substantial competent evidence Father and Mother failed to
remedy the problems which initially caused the removal of C.S. from their home. Father
and Mother failed to completed important and vital requirements of their case plan.
Neither Father nor Mother followed through with counseling, attending only one or two
sessions and then no showing. Father and Mother’s visits were suspended during the
pendency of the matter due to missed appointments. Father did not follow through on
his drug and alcohol program. Further, Parents could not decide the fate of their
marriage. Father and Mother lived in the home of Father’s mother, which was not a
healthy environment. Father and Mother had monthly interaction with police due to
domestic calls. Parents both had suicidal ideations or had attempted suicide.
{¶29} With respect to the best interest finding, the evidence revealed C.S. was
doing well in foster care and the foster family was interested in adopting him.
{¶30} Based upon the foregoing, we find the trial court's findings C.S. could not
be placed with Father or Mother within a reasonable time, and an award of permanent
custody was in the child’s best interest were not against the manifest weight of the
evidence and were based upon sufficient evidence.
{¶31} Father and Mother also take issue with the trial court’s failure to grant a six
month extension in order for them to work on their case plans.
{¶32} A trial court's decision to grant or deny an extension of temporary custody
is a discretionary one. See, R.C. 2151.415(D)(1) and (2). Pursuant to R.C.
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 10
2151.415(D)(1), a trial court can extend temporary custody for six months only if it finds,
by clear and convincing evidence, (1) that such an extension is in the best interests of
the child, (2) that there has been significant progress on the case plan, and (3) that
there is reasonable cause to believe that the child will be reunified with a parent or
otherwise permanently placed within the period of extension. See, In re McNab, 5th
Dist. Nos.2007 AP 11 0074, 2007 AP 11 0075, 2008–Ohio–1638.
{¶33} Parents’ assertion an extension of time would allow them to make
continued progress on their case plans is belied by their failure to make minimal
progress in the year the case was pending. We find the evidence before the trial court
supports the conclusion an extension of temporary custody was not in C.S.’s best
interest, but, rather, his interest was best served by awarding permanent custody to
TCJFS.
{¶34} Father's first and second assignments of error, and Mother’s first
assignment of error are overruled.
Tuscarawas County, Case No. 2013AP120058, 2013AP120059 11
{¶35} The judgment of the Tuscarawas County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
In re M.P.
Combined Opinion