[Cite as In re M.W., 2011-Ohio-4601.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. W. Scott Gwin, P.J.
M.W. Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
MINOR CHILD(REN)
Case No. 2011CA00117
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 2008JCV00901
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 12, 2011
APPEARANCES:
For Appellant For Appellee
AARON KOVALCHIK JERRY COLEMAN
116 Cleveland Avenue, NW 221 Third Street, SE
Suite 808 Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2011CA00117 2
Farmer, J.
{¶1} On August 15, 2008, appellee, Stark County Job and Family Services,
filed a complaint for temporary custody of M.W. born April 15, 1999, alleging the child to
be dependent and/or neglected. Father of the child is appellant, Shaun Lindsay; mother
is Lori Witherspoon.
{¶2} On November 7, 2008, the trial court found the child to be neglected, and
continued temporary custody of the child with a relative. On January 15, 2009, the trial
court granted temporary custody of the child to appellee.
{¶3} The child was placed with appellant on January 7, 2010, with protective
supervision to appellee. On February 16, 2010, the child was removed from appellant's
custody.
{¶4} On July 7, 2010, appellee filed a motion for permanent custody based
upon the parents' failure to comply with the case plan. Hearings were held on August
16 and 19, 2010 and February 28, 2011. By judgment entries filed January 5, and April
29, 2011, the trial court terminated the parents' parental rights and granted permanent
custody of the child to appellee.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "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."
Stark County, Case No. 2011CA00117 3
II
{¶7} "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
{¶8} Appellant claims the trial court’s findings that the child could not be placed
with him within a reasonable time and it was in the child’s best interests to grant
permanent custody to appellee were against the manifest weight and sufficiency of the
evidence. We disagree.
{¶9} 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. A
reviewing court must not substitute its judgment for that of the trial court where there
exists some competent and credible evidence supporting the judgment rendered by the
trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993–Ohio–9.
{¶10} R.C. 2151.414(E) sets out the factors relevant to determining permanent
custody. Said section states the following in pertinent part:
Stark County, Case No. 2011CA00117 4
{¶11} "(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:
{¶12} "(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.
{¶13} "(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 pursuant to
Stark County, Case No. 2011CA00117 5
division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of
the Revised Code;
{¶14} "(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} "(10) The parent has abandoned the child.
{¶16} "(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 from suffering
physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
{¶17} "(16) Any other factor the court considers relevant."
{¶18} R.C. 2151.414(B)(1) enables a trial court to grant permanent custody if the
court determines by clear and convincing evidence that it is in the best interests of the
child. "Clear and convincing evidence" is "that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such
certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
produce 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.
{¶19} R.C. 2151.414(D)(1) 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:
Stark County, Case No. 2011CA00117 6
{¶20} "(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;
{¶21} "(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;
{¶22} "(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***;
{¶23} "(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;
{¶24} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child."
{¶25} We note mother has not appealed the trial court's determination, and in
fact, did not appear at the permanent custody hearing. Mother has lost permanent
custody involuntarily of three children, has had no contact with appellee for over a year,
has a chronic substance abuse history, and has never completed a case plan. August
16, 2010 T. at 5-6. The trial court found that mother had abandoned the child. See,
Finding of Fact No. 14 filed January 5, 2011.
{¶26} In addition, as to both parents, the trial court found the child had been in
appellee's temporary custody for twelve or more months of a consecutive twenty-two
month period. August 16, 2010 T. at 9; Finding of Fact No. 3 filed January 5, 2011.
Stark County, Case No. 2011CA00117 7
This finding is sufficient to grant permanent custody to appellee. R.C.
2151.414(B)(1)(d); In re Parks, Muskingum App. No. CT2006-0024, 2006-Ohio-5891.
{¶27} Appellant argues he received a certificate of attendance from Goodwill
Parenting, has made progress in anger management, has participated in joint
counseling with the child, has completed the parenting evaluation, has been employed
as of March 2010, and has a stable living arrangement. Appellant's Brief at 8-9; August
16, 2010 T. at 10-13, 19.
{¶28} Appellee became involved with the family in July of 2008 after appellant
approached the agency and explained "he could no longer handle" the child's
behaviors, and he wanted the child placed in foster care to teach the child a lesson.
August 16, 2010 T. at 6. Appellant's girlfriend at the time made him choose between
the child and a place to live and he chose the girlfriend. Id.
{¶29} Appellant's case plan was designed to address his lack of stable housing
and employment, his anger and aggression issues, and his lack of parenting skills. Id.
at 10.
{¶30} While appellant attended Goodwill Parenting classes, he did not
successfully complete the program. Id. Appellant made some progress regarding his
anger management, "but still has a long way to go." Id. at 11. Appellant completed joint
counseling with the child up until the child was removed from his custody. Id. at 11-12.
Appellant completed a parenting evaluation which illuminated the following concerns:
{¶31} "That he has unrealistic expectations. Age appropriate expectations along
with him being self absorbed in his self. Um and that his authoritative parenting style
was um harming, harmful corporate (sic) punishment where he believed in corporate
Stark County, Case No. 2011CA00117 8
(sic) punishment with [M]. Along with the instability of his housing, and going from
girlfriend to girlfriend and how it affects [M] having to switch homes all the time. And
switch schools all the time and how it affects [the child] emotionally along with
academically." Id. at 12.
{¶32} Employment was also a goal that was eventually achieved in March of
2010, twenty-nine hours a week at minimum wage. Id. at 13, 15. As for housing,
appellant refused to tell appellee where he lived. Id. at 13-14.
{¶33} Appellee assisted appellant on the case plan, telling him of different
places that were hiring, paying for services for him to complete, and providing bus
passes which appellant often refused "because he didn't associate with the kind of
people that ride the bus." Id. at 15-16. At times, appellant went as long as ninety days
without contacting the child. Id. at 9.
{¶34} The request for permanent custody was based upon the child's need for
stability and permanency. Id. at 16.
{¶35} Upon review, we find the trial court's decision that the child could not be
placed with appellant within a reasonable time is substantiated by R.C.
2151.414(B)(1)(d) and the fact that appellant has not successfully completed the case
plan.
{¶36} As for best interests, the child was eleven years old at the time of the
hearing. The child has been diagnosed with ADHD and attachment disorder. February
28, 2011 T. at 4. The caseworker testified the child needed stability and permanency as
she has been in and out of appellee's custody since August of 2008. Id. at 5. Relative
Stark County, Case No. 2011CA00117 9
placement was attempted, but was unsuccessful. Id. Appellee was in the process of
seeking an adoptive home for the child. Id. at 9.
{¶37} The child's therapist testified the child has behavioral and emotional
problems due to the various placements over the past two and a half years. Id. at 11.
Appellant participated in approximately seven sessions, but has not attended any for the
past year. Id. at 12. The therapist opined the child needed a "stable, structured, and
safe environment." Id.
{¶38} Between the dependency hearing and the best interests hearing, appellant
attempted to rectify the unaddressed areas of his case plan. Id. at 19-21. Appellant
attempted to relitigate the first phase of the permanent custody case. Id. at 15-17.
{¶39} We note an "in camera" interview of the child by the trial court was
granted; however, there is no transcript of that proceeding.
{¶40} Upon review, we find the trial court did not err in finding, by clear and
convincing evidence, that the best interests of the child would best be served by
granting appellee permanent custody of the child.
{¶41} Assignments of Error I and II are denied.
Stark County, Case No. 2011CA00117 10
{¶42} 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
SGF/sg 822
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
M.W. :
:
MINOR CHILD(REN) : JUDGMENT ENTRY
:
:
:
: CASE NO. 2011CA00117
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