[Cite as In re B.E.S., 2011-Ohio-6746.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. W. Scott Gwin, P.J.
B.E.S. (DOB 06/06/06) : Hon. Sheila G. Farmer, J.
A.E. (DOB 11/06/08) : Hon. Patricia A. Delaney, J.
R.E.S. (DOB 12/04/09) :
: Case No. 2011CA00195
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
2010JCV00622
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 27, 2011
APPEARANCES:
For Appellant For Appellee
AARON KOVALCHIK LISA A. LOUY
116 Cleveland Avenue, NW 221 Third Street, SE
Suite 808 Canton, OH 44702
Canton, OH 44702
Farmer, J.
Stark County, Case No. 2011CA00195 2
{¶1} On May 3, 2011, appellee, the Stark County Department of Job and
Family Services, filed a complaint for permanent custody of B.E.S born June 6, 2006,
A.E. born November 6, 2008, and R.E.S born December 4, 2009. Mother of the
children is Charley Eakle; father is appellant, Donald Sanders, II. The children had
been adjudicated abused and placed in appellee's temporary custody on August 16,
2010. A hearing was held on August 3, 2011. By judgment entry filed August 8, 2011,
the trial court granted permanent custody of the children to appellee. Findings of fact
and conclusions of law were filed same date. A nunc pro tunc judgment entry to correct
a misspelling was filed on August 16, 2011.
{¶2} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶3} "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."
II
{¶4} "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."
I, II
Stark County, Case No. 2011CA00195 3
{¶5} Appellant claims the trial court’s findings that the children could not be
placed with him in a reasonable time and the best interests of the children would be
best served by granting permanent custody to appellee were against the manifest
weight and sufficiency of the evidence. We disagree.
{¶6} 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 (February 10, 1982), Stark App. No. CA-5758. 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 Construction (1978), 54 Ohio St.2d 279.
{¶7} R.C. 2151.414(E) sets out the factors relevant to determining permanent
custody. Said section states in pertinent part as follows:
{¶8} "(E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised Code 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 or for the purposes of division (A)(4) of section 2151.353 of
the Revised Code 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 should not be placed with either parent:
Stark County, Case No. 2011CA00195 4
{¶9} "(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.
{¶10} "(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;
{¶11} "(16) Any other factor the court considers relevant."
{¶12} R.C. 2151.414(B) enables the court to grant permanent custody if the
court determines by clear and convincing evidence that it is in the best interest of the
child. Clear and convincing evidence is that evidence "which will provide in the mind of
the trier of facts a firm belief or conviction as to the facts sought to be established."
Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. See also,
In re Adoption of Holcomb (1985), 18 Ohio St.3d 361. "Where the degree of proof
required to sustain an issue must be clear and convincing, a reviewing court will
Stark County, Case No. 2011CA00195 5
examine the record to determine whether the trier of facts had sufficient evidence before
it to satisfy the requisite degree of proof." Cross, at 477.
{¶13} R.C. 2151.414(D) sets out the factors relevant to determining the best
interests of the child. Said section states relevant factors include, but are not limited to,
the following:
{¶14} "(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;
{¶15} "(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;
{¶16} "(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 for twelve or more months of a consecutive twenty-two-month
period***;
{¶17} "(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;
{¶18} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child."
{¶19} In its findings filed August 8, 2011 as to whether the children could be
placed with appellant within a reasonable time, the trial court found the following:
Stark County, Case No. 2011CA00195 6
{¶20} "1. Case worker Stacy Senff testified that the children in question had
been in the agency's emergency custody since June 7, 2010, and in the agency's
temporary custody since August 16, 2010.
{¶21} "2. ***Ms. Senff testified that Father has completed an evaluation at Quest
and Northeast Behavioral Health. However, Father recently tested positive for cocaine
in April 2011. Father is not close to completing a 52 week anger management course at
Melymbrosia, and has not done Goodwill Parenting or found stable housing and
employment. Ms. Senff testified that Father admitted he could not care for children.
{¶22} "3. Dr. Amy Thomas testified that Father has drug issues and anger
management issues that are unresolved.
{¶23} "4. Harry Lowers, a Quest Counselor, testified to Father's involvement in a
relapse program.
{¶24} "5. Ms. Sandra Fronimo testified Mr. Sanders is not close to completing
the Voyager Anger Management program.
{¶25} "6. Ms. Seneff [sic] testified that Mother and Father failed to support,
communicate or visit with their children.
{¶26} "7. The agency has made reasonable efforts in an attempt to remediate
the concerns which were the cause of the children's original removal. The parties failed
continuously and repeatedly to substantially remedy the conditions which were the
bases for the children's removal from the family home."
{¶27} Appellant completed his Quest evaluation and started the Voyager
program (T. at 12, 68); however, appellant has not bonded with the children because of
a no-contact order in place. T. at 6, 7, 20. Appellant has not established stable
Stark County, Case No. 2011CA00195 7
independent living, although it was conceded that this issue was not the linchpin of the
trial court's determination. T. at 14, 23-24. It was the trial court's opinion that appellant
was unable to care for three small children, one with periventricular leukomalacia and
cerebral palsy, and one who was physically abused and greatly traumatized by
witnessing domestic violence and the premature birth of a sibling into a toilet. T. at 15-
16, 41, 81. Appellant admitted to Ms. Senff that he was concerned about safely caring
for the children. T. at 16.
{¶28} Dr. Aimee Thomas, who completed a parent evaluation on appellant,
opined he demonstrated a lack of attentiveness to the needs of the children and a lack
of attachment to the children. T. at 46-47. Appellant "reported anger management
problems were a source of concern, as he may not have the patience to deal with the
special needs of both of these children." T. at 49. Dr. Thomas had little confidence in
appellant's ability to make changes given the fact that he lacks "insight into concerns
with his anger management. His minimalization of substance abuse issues. As well as
the clear special needs of these children." T. at 50. Dr. Thomas explained the children
needed a parent "who's hyper vigilant, and willing to insure that these children never
ever experience another traumatic incident, such as physical abuse, sexual abuse, or
exposure to domestic violence." Id. Dr. Thomas opined it was questionable whether
appellant would ever be able to do that. Id.
{¶29} Although each parent should be viewed separately, it is necessary to view
the entire pattern of abuse as the parents "have an on again off again relationship." T.
at 25, 50. Because of the parents' joint inabilities involving drug abuse, domestic
violence, and lack of concern for the children by having a known sex offender in their
Stark County, Case No. 2011CA00195 8
home, it is clear they jointly and separately are unable to provide for the needs of the
three small children, all under the age of five. T. at 8-11, 46.
{¶30} Appellee was informally involved with the family six months prior to the
Juv.R. 6 intervention in June of 2010. T. at 4-5. Services were offered to mother, but
she was unsuccessful. T. at 8-11. Appellant cooperated, but was defensive to
treatment, and admitted he lacked the patience and ability to safely care for the
children. T. at 16, 45, 49, 52.
{¶31} Upon review, we find the trial court did not err in finding that the children
could not be placed with appellant within a reasonable time.
{¶32} As for best interests, the trial court found the following:
{¶33} "6. The Court finds that there is minimal bond between Mother and Father
and these children.
{¶34} "7. The Court finds that Mother and Father have completely failed to
support or visit with their children as he (sic) have never contacted SCJFS to inquire
into the well-being of their children.
{¶35} "8. The Court finds that it is the agency's testimony that a grant of
permanent custody would be in the best interest of the children of this case as the
parents are either unable or unwilling to provide a safe and stable environment for the
children."
{¶36} Unfortunately, it is clear that the youngest child will need extensive care
due to the fact that the child suffered a traumatic head injury at birth, was born drug
positive, has been diagnosed with cerebral palsy, and has sustained multiple broken
bones from physical abuse. T. at 81. As the cited testimony indicates, neither parent is
Stark County, Case No. 2011CA00195 9
equipped to meet the child's special needs. The older children act out, and one child is
severely traumatized by the sexual and physical abuse which occurred in the home and
by witnessing the birth of a sibling into the toilet. T. at 79-80.
{¶37} The children are in a foster-to-adopt home that has the ability to care and
manage the children. T. at 84-85. The children have bonded with everyone in the
household. T. at 85. No bond exists between the children and appellant and mother.
T. at 86.
{¶38} Upon review, we find the trial court did not err in finding the best interests
of the children were best served by granting permanent custody to appellee.
{¶39} Based upon the evidence contained in the record, we find the trial court
did not err in granting permanent custody of the children to appellee.
{¶40} Assignments of Error I and II are denied.
{¶41} The judgment of the Court of Common Pleas of Stark County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
s/ Sheila G. Farmer______________
_s/ W. Scott Gwin_______________
s/ Patricia A. Delaney____________
JUDGES
[Cite as In re B.E.S., 2011-Ohio-6746.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
B.E.S. (DOB 06/06/06) :
A.E. (DOB 11/06/08) :
R.E.S. (DOB 12/04/09) : JUDGMENT ENTRY
:
:
:
: CASE NO. 2011CA00195
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, Juvenile Division is
affirmed. Costs to appellant.
s/ Sheila G. Farmer______________
_s/ W. Scott Gwin_______________
s/ Patricia A. Delaney____________
JUDGES
In re B.E.S.
Combined Opinion