In re D.M.C.

[Cite as In re D.M.C., 2013-Ohio-867.]
STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN RE: ) CASE NO. 12 JE 24
)
D.M.C. )
) OPINION
)
)

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Juvenile Division, of Jefferson
County, Ohio
Case No. 2010 DN 5

JUDGMENT: Affirmed.

APPEARANCES:
For Appellant-Father: Atty. Shawn M. Blake
4110 Sunset Blvd.
Steubenville, Ohio 43952

For Appellee-JCDJFS: Atty. M. Catherine Savage-Dylewski
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952

For Appellee-Mother: Atty. Eric Reszke
Sinclair Building, Suite 810
Steubenville, Ohio 43952

Guardian Ad Litem: Atty. Craig Allen
500 Market Street, Suite 10
Steubenville, Ohio 43952

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 6, 2013
[Cite as In re D.M.C., 2013-Ohio-867.]
WAITE, J.

{¶1} This appeal was filed from the trial court’s decision to terminate the

custodial rights of both the natural mother and father of two children. After an

extended placement in a foster home and due to the apparent inability of the natural

mother to provide consistent care for the children during the incarceration of the

natural father, and in the absence of any suitable placement with a relative or other

arrangement by the natural father, Appellee, the Jefferson County Department of Job

and Family Services, was awarded permanent custody of the children. Appellant, the

natural father who is currently incarcerated, opposes the termination of his parental

rights. The natural mother is not party to this appeal and does not contest the trial

court’s decision to terminate her parental rights. Because the trial court properly

applied the applicable law and complied with statutory requirements, and the

information in the record supports the decision entered by the court, the judgment of

the trial court is affirmed.

Factual and Procedural History

{¶2} Appellant/father and natural mother have three children in common.

The pair, who never married, cohabited for the majority of the period relevant to this

appeal. The custody of two of the couple’s three children was at issue before the trial

court. This appeal involves only D.M.C. Appellant has filed a separate appeal as to

the other child.

{¶3} Appellee, Jefferson County Department of Job and Family Services,

Child Services Division (“JCDJFS”), sought and received an order from the trial court

terminating Appellant’s parental rights and permanently transferring custody of
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D.M.C. and one of his two siblings. D.M.C. was born on October 17, 2008. The

children were first removed from the home in October of 2008 when D.M.C. was born

with methadone in his system. After the drug was detected in the newborn, the

mother admitted she used Appellant’s prescription methadone during the last month

of her pregnancy. D.M.C. remained hospitalized in the Neonatal Unit of Pittsburgh

Children’s Hospital for an extended period of time during which the child was treated

for methadone addiction. (Tr., p. 12.) According to the trial court’s September 13,

2012 entry permanently transferring custody to Appellee, D.M.C. was adjudicated as

an abused child in October of 2008. (9/13/12 J.E.) D.M.C.’s sibling, also removed

from the home at the same time as D.M.C., was found by the court to be a dependent

child at that same time. (9/13/12 J.E.)

{¶4} Both children were returned to their parents on February 27, 2009, but

Appellee retained protective supervisory authority. According to Appellee,

throughout this supervisory period the natural parents were not compliant with the

portion of their case plan that required them to participate in “Help Me Grow,” a

program that provides family services. They did, however, initially comply with drug

and alcohol screening. In March of 2009, a month after the children were returned to

their natural parents, the natural mother was charged with and convicted on two

counts of child endangerment for leaving the children unattended in a parked car.

Despite some noncompliance with the care plan and the convictions for child

endangering, protective supervision ended and the case was closed on November 4,

2009.
 -3-

{¶5} Appellee’s next involvement with the children began nearly three

months later with a January 29, 2010 report that Appellant was discovered to be

unconscious on the floor of the house while the two unattended children were eating

food from the floor in the kitchen. A neighbor entered the house and remained with

the two children until their mother returned from the grocery store. When Appellee

contacted the parents they both denied these allegations. During a subsequent

unannounced follow-up visit, both parents agreed to complete a drug screening to

determine whether further involvement with Appellee was necessary. The pair did

not complete this screening and did not contact or respond to Appellee’s attempts to

follow up after the alleged incident and unannounced visit.

{¶6} On February 15, 2010, approximately one month later, Appellee

received a late night call that the children were walking down the road with their

mother, who had apparently left the house due to a domestic dispute. The mother

reportedly appeared to be intoxicated in some fashion and the two children were

inadequately clothed for the weather, dirty, and unkempt. According to the

information provided to the police who responded to the call, a domestic dispute

arose between the mother and Appellant over the prescription drug, Xanax. Appellee

intervened and the natural mother was transported to the hospital for a mental health

evaluation. Despite statements placing Appellant in the family home and his

involvement in the dispute that led the children and their mother to leave the house,

Appellant testified at the custody hearing that he was not living in the home at that

time and claimed that he was absent on the night in question. The children were

again removed from the home and placed in foster care. The children were found by
 -4-

the court to be neglected as defined by R.C. 2151.03, and Appellee was granted

temporary custody by the court. The two children have remained in foster care and

in the same foster home since their removal. According to Appellee, the children

have bonded with their foster parents and the other foster children in the home.

{¶7} On April 9, 2010, after the second removal, both parents signed a case

plan. It is undisputed that the natural mother never complied with the terms of her

case plan which required her to have “an assessment,” follow up with any

recommended treatment, and to visit the children on a regular schedule. (Appellee’s

Brf., p. 4.) Appellee describes the natural mother as noncompliant for failure to

“consistently follow through” with counseling and visitation. (Appellee’s Brf., p. 4.)

During the custody hearing, Appellee listed for the court the mother’s cancellations

and no-show incidents between May, 2010 and March of 2012. Appellee also placed

into evidence the mother’s various drug, assault, and theft charges during the same

period.

{¶8} Appellant was also required by the case plan to have a drug and

alcohol assessment and to visit the children. Appellant was arrested on felony drug

charges four days after signing the case plan. Appellant was convicted of a felony

drug offense and sentenced to three years of incarceration. Appellant has been

incarcerated since April 13, 2010, and is not scheduled for release until April 13,

2013. Prior to incarceration, Appellant was admittedly addicted to methadone and

oxycodone, allegedly as a result of a 2007 injury. According to Appellee, Appellant

has not undergone the agreed drug and alcohol assessment. He still suffers from

back pain as a result of the injury which he treats with over-the-counter medication
 -5-

because he does not have access to his prescription medications while in prison.

Appellant provided Appellee with the names of two relatives who might be able to

take care of the children until his release from prison. However, he was only able to

provide contact information for one of the two. Appellee contacted this relative, who

indicated that she was willing to take the children. When Appellee visited her to

determine whether suitable accommodations were available for the children, she did

not have plans to move from the one-bedroom apartment she shared with her

significant other. Because she was unable to provide any accommodation for the

children, her housing was deemed unsuitable and Appellee did not approve the

placement.

{¶9} The caseworker assigned to the children expressed her opinion that

both were too young to self-protect and were at an age when the constant attention

and care of an adult was needed. According to the caseworker, due to the long

substance abuse history of both parents, their inattention to the terms of the care

plans, nonattendance at visitation, and the absence of any attempt to contact the

children by other means, neither parent appeared able to provide the care and

attention needed. In addition to other factors, both the caseworker and the foster

family expressed concern that the children, especially D.M.C.’s sibling, were “acting

out” towards each other and Appellee’s employees during and after visitation. The

caseworker was also concerned about D.M.C.’s habit of self-harming when upset.

(Tr., pp. 30-31, 35-36.) The foster family had taken steps to address the behaviors

and the other child was receiving behavioral health treatment. (Tr., pp. 35-37.) The

record reflects that prior to the custody hearing, the behaviors of both children had
 -6-

improved. (Tr., p. 35.) According to the caseworker, the children could not continue

to receive the care and services they need without a permanent transfer of custody.

The caseworker reported having no concerns with the foster family, emphasized the

loving environment, and indicated that the family was considering adoption. (Tr., p.

37.) The caseworker testified that permanent transfer of custody was necessary to

allow Appellee to implement a specific plan to seek adoptive parents for the children.

{¶10} According to Appellant, Appellee initially opened a case file due to

suspected drug use in 2008. Appellant maintains that he was referred to “Jefferson

Behavioral Health” where “it was determined that he did not need addiction therapy

at that time.” (Appellant’s Brf., p. 3.) Appellant alleges that after the children were

returned in February of 2009, he complied with the case plan. He claimed that the

endangerment charges and other incidents that were reported in 2010 had to do with

the natural mother, with whom he was no longer cohabiting due to “relationship

issues.” (Appellant’s Brf., p. 3.) According to Appellant, prior to losing his job in

2009, he had held a steady job for about three years and was providing for his family.

Appellant admits that he signed the case plan on April 9, 2010, was arrested four

days later on April 13, and that he was subsequently convicted for illegal assembly or

possession of chemicals for the manufacture of methamphetamines in the vicinity of

a juvenile. Appellant maintains that his dependence on pain medication was the

result of an old back injury and that he has remained sober during his incarceration,

has lost weight in order to combat the pain, and has completed several educational

programs in prison including parenting classes and substance abuse sessions. (Tr.,

pp. 90-94.) Beyond his testimony Appellant provided no evidence demonstrating his
 -7-

sobriety or actual attendance at educational programs or of the other progress he

described. According to Appellant, he did not realize visitation was an option while

he was in prison and this is why he has not visited with his children. (Tr., p. 89.)

{¶11} According to Appellee, Appellant has made no attempt to even contact

his children during his incarceration. D.M.C. was one year of age when last

contacted by Appellant and is now four. Appellee stated that both children were

doing well in foster care, having bonded with the foster parents whom they refer to as

mom and dad, and that their behavioral issues have improved in the foster home.

(Tr., p. 35.) The foster parents are interested in adopting the children. No other

relative is seeking custody of the children. Appellee has no concerns about the

ability of the foster family to adopt the children. (Tr. pp. 36-40.) Appellee believes

that a permanent placement with the foster mother who is the primary caregiver, is in

the best interest of both children.

Argument and Law

Assignment of Error

THE MAGISTRATE’S DECISION AND THE JUVENILE COURT’S

AFFIRMATION OF SAID DECISION, WHICH TERMINATED THE

PARENTAL RIGHTS OF THE APPELLANT, WAS AN ABUSE OF

DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶12} Appellant contends that the court failed to take into account limitations

on his ability to comply with the case plan caused by his felony conviction and
 -8-

resulting incarceration when deciding to terminate his parental rights. He believes

that Appellee, without any communication from Appellant in any form, should have

undertaken to arrange visitation at his place of incarceration and taken additional

steps to identify, locate, and evaluate his other relatives in an effort to find a stable

placement for the children. Appellant disagrees with the court’s conclusion that

Appellee had made reasonable efforts to reunite the children with their natural

mother and to avoid placement of the children outside the home of their natural

parents. Appellant also contests the court’s conclusion that the children had been

successfully integrated into the home of foster parents who are interested in adopting

the children, because testimony during the transfer hearing indicated that the foster

father had been absent from the home for approximately one month prior to the

hearing and was no longer in communication with Appellee. Appellant does not

challenge the process used by the court, the sufficiency of the transfer hearing, or the

form of the court’s decision to transfer custody. Instead, Appellant argues that the

court, when applying R.C. 2151.414(E) and 2151.414(D)(1), should have come to a

different conclusion.

{¶13} Natural parents have a “fundamental liberty interest * * * in the care,

custody, and management” of their children that is protected by the Fourteenth

Amendment of the United States Constitution. Santosky v. Kramer, 455 U.S. 745,

753, 102 S.Ct. 1388 (1982).

{¶14} “[A] court exercising Juvenile Court jurisdiction is invested with a very

broad discretion, and, unless that power is abused, a reviewing court is not warranted

in disturbing its judgment.” In re Anteau, 67 Ohio App. 117, 119, 36 N.E.2d 47, 48
 -9-

(1941). “The term ‘abuse of discretion’ connotes more than an error of law or of

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable * * *.” In re Jane Doe 1, 57 Ohio St.3d 135, 137, 566 N.E.2d 1181,

1184 (1990), citing State v. Adams, 62 Ohio St.2d 151, 157, 172-173, 404 N.E.2d

144, 148-149 (1980). A juvenile court’s decision to terminate parental rights and

transfer permanent custody of a minor child must be supported by clear and

convincing evidence. Santosky, supra, paragraph three of the syllabus. “Clear and

convincing evidence is that measure or degree of proof which will produce in the

mind of the trier of facts a firm belief or conviction as to the allegations sought to be

established. It is [an] intermediate [standard], being more than a mere

preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”

(Emphasis sic). Cross v. Ledford, 191 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

{¶15} When reviewing the decision of a juvenile court to determine whether it

is supported by clear and convincing evidence, “a reviewing court may not as a

matter of law substitute its judgment as to what facts are shown by the evidence for

that of the trial court” because the “trial judge, having heard the witnesses testify, was

in a far better position to evaluate their testimony th[a]n a reviewing court.” Id. at 478.

“Where the evidence is in conflict, the trier of facts may determine what should be

accepted as the truth and what should be rejected as false.” Id. “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
 -10-

weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,

376 N.E.2d 578 (1978), syllabus.

{¶16} When a motion for permanent custody is filed by a children services

agency, the trial court’s decision whether to grant permanent custody of a child to the

agency is governed by R.C. 2151.414(B)(1), which provides:

[T]he court may grant permanent custody of a child to [the agency] if

the court determines at the hearing * * * by clear and convincing

evidence, that it is in the best interest of the child to grant permanent

custody of the child to the agency that filed motion for permanent

custody and that any of the following apply:

(a) * * * 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

are able to take permanent custody.

(d) The child has been in the temporary custody of one or more public

children services agencies * * * for twelve or more moths of a

consecutive twenty-two-month period, or the child has been in the

temporary custody of one or more public services agencies * * * for

twelve or more months of a consecutive twenty-two-month period and *
 -11-

* * the child was previously in the temporary custody of an equivalent

agency in another state.

For the purposes of division (B)(1) of this section, a child shall be

considered to have entered the temporary custody of an agency on the

earlier of the date the child is adjudicated pursuant to section 2151.28

of the Revised Code [to be an abused, neglected, or dependent child]

or the date that is sixty days after the removal of the child from home.

When determining the best interest of a child at a hearing pursuant to a motion for

permanent custody pursuant to R.C. 2151.414(D)(1), “the court shall consider all

relevant factors, including, but not limited to, the following:”

(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;

(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;

(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 * * * for twelve or more months of a consecutive twenty-two-

month period, * * *;
 -12-

(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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

For the purposes of division (D)(1) of this section, a child shall be

considered to have entered the temporary custody of an agency on the

earlier of the date the child is adjudicated pursuant to section 2151.28

of the Revised Code [to be an abused, neglected, or dependent child]

or the date that is sixty days after the removal of the child from home.

While the trial court is permitted to find that it is in the best interest of the child that

custody be permanently transferred to a public agency after having considered the

factors identified in R.C. 2151.414(D)(1), under R.C. 2151.414(D)(2) a court “shall

commit the child to the permanent custody of a public children services agency” “if all

of the following apply:”

(a) The court determines by clear and convincing evidence that one or

more of the factors in division (E) of this section exist and the child

cannot be placed with one of the child’s parents within a reasonable

time or should not be placed with either parent.
 -13-

(b) The child has been in an agency’s custody for two years or longer,

and no longer qualifies for temporary custody pursuant to division (D) of

section 2151.415 of the Revised Code.

(c) The child does not meet the requirements for a planned permanent

living arrangement pursuant to division (A)(5) of section 2151.353 of the

Revised Code.

(d) Prior to the dispositional hearing, no relative or other interested

person has filed, or has been identified in, a motion for legal custody of

the child.

When determining whether a child can be placed with either parent within a

reasonable period of time, or whether a child should be placed with either parent

pursuant to R.C. 2151.414(E), a court “shall consider all relevant evidence” and

determine “by clear and convincing evidence” that “one or more of the following exist

as to each of the child’s parents:”

(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,
 -14-

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.

(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 [on the motion for

permanent custody] * * *

(3) The parent committed any abuse * * * against the child, caused the

child to suffer any neglect as described in section 2151.03 of the

Revised Code, or allowed the child to suffer any neglect as described in

section 2151.03 of the Revised Code between the date that that the

original complaint alleging abuse or neglect was filed and the date of

the filing of the motion for permanent custody;

(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-

(5) The parent is incarcerated for an offense committed against the

child or a sibling of the child;

***

(9) The parent has placed the child at substantial risk of harm two or

more times due to alcohol or drug abuse and has rejected treatment

two or more times or refused to participate in further treatment two or

more times after a case plan * * * requiring treatment of the parent was

journalized as part of a dispositional order issued with respect to the

child or an order was issued by any other court requiring treatment of

the parent.

(10) The parent has abandoned the child.

***

(12) The parent is incarcerated at the time of the filing of the motion for

permanent custody or the dispositional hearing of the child and will not

be available to care for the child for at least eighteen months after the

filing of the motion for permanent custody or the dispositional hearing.

(13) The parent is repeatedly incarcerated, and the repeated

incarceration prevents the parent from providing care for the child.

(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
 -16-

from suffering physical, emotional, or sexual abuse or physical,

emotional, or mental neglect.

(15) The parent has committed abuse * * * against the child or caused

or allowed the child to suffer neglect as described in section 2151.03 of

the Revised Code, and the court determines that the seriousness,

nature, or likelihood of recurrence of the abuse or neglect makes the

child’s placement with the child’s parent a threat to the child’s safety.

(16) Any other factor the court considers relevant.

As reflected in R.C. 2151.414(B)(1), when a trial court rules on a motion for

permanent transfer of custody, it must first determine whether a transfer of custody is

in the child’s best interest and then determine whether any of the factors listed in

(B)(1) also apply. In this instance, due to the duration of the child’s removal from the

household, the standard to be applied is that found in R.C. 2151.414(D)(2), which

requires a best interests finding and permanent transfer of custody if four factors are

met. There is no dispute in this instance that the children have been in the custody

of Appellee for more than two years, that D.M.C., now four, cannot be placed in an

independent planned permanent living arrangement, and that no further extension of

the temporary custody order is available. Hence, sections (b)(c) and (d) of R.C.

2151.414(D)(2) are satisfied.

{¶17} Moving on, if the court determines by clear and convincing evidence

that one or more R.C. 2151.414(E) factors exist and that the child cannot be placed

with his or her parents within a reasonable time or should not be placed with his or
 -17-

her parents, then custody “shall” be permanently transferred to Appellee. The trial

court in this instance made twenty-two specific findings in its decision to transfer

custody. Among these findings are: that D.M.C. had been previously removed from

the home, the child had been adjudicated abused, the child’s sibling had been

adjudicated to be dependent, Appellant failed to comply with the case plan without

justification, Appellant was currently incarcerated and this would continue until April

of 2013, and that Appellant had “demonstrated a lack of commitment toward the

children by failing to regularly support, visit or communicate with the children when

able to do so or by other actions showing an unwillingness to provide an adequate

permanent home for the children.” (9/13/12 J.E.) In addition to the findings

specifically noted in the judgment entry, D.M.C. was adjudicated to be neglected at

the inception of the current proceeding. The record also discloses the fact that while

Appellant has been employed “on and off,” he has no specific employment

arrangement in place for his planned release from prison. By his own admission,

prior to his arrest Appellant was apparently staying with a friend and maintained no

house or apartment of his own. Appellant has no plan or living arrangement for

himself or the children after his release from prison. Although he had suggested that

there may exist relatives who might care for the children until his release, the only

individual who came forward was his adult daughter, whose one bedroom apartment

could not properly accommodate the children. Appellant was apparently unable or

unwilling to provide contact information for any other individual willing to take

responsibility for the children prior to his release or to identify any specific date on

which he would be able to provide care and accommodation for the children himself.
 -18-

{¶18} Under these circumstances the findings reflected by the court and the

record below support the conclusion, at a minimum, that “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” and that the child could not

be placed with his parent within a reasonable time. Appellant does not dispute that

he has failed to contact or even attempt to contact his children in any way during the

entire duration of his incarceration; this failure extends to letters and telephone calls,

in addition to visitation. Appellant argues that Appellee should be charged with the

responsibility of initiating and arranging visitation and should be required to locate his

other relatives, but offers no legal basis for this assertion and no explanation of the

absence of written or telephone contact. Nothing in this record suggests that the trial

court abused its discretion when determining Appellant showed a lack of commitment

toward D.M.C., or that transfer of custody was in the best interest of the child in this

instance.

{¶19} In addition to meeting the requirements of R.C. 2151.414(D)(2), the trial

court also explicitly considered the additional factors listed R.C. 2151.414(D)(1)

concerning the needs of the children. The court noted that the children were in need

of a legally secure permanent placement and had been in foster care for more than

two years. The court found that the children had been successfully integrated into

the foster home, that the foster parents were interested in adopting the children, and

that the guardian ad litem recommended permanent transfer of custody to Appellee.

While it is certainly true that the circumstances of Appellant’s incarceration impaired

his ability to comply with the case plan as written, it is not the fact of Appellant’s
 -19-

incarceration, but his failure to take steps to mitigate, compensate for, or work with

Appellee to create a modification that demonstrates his lack of commitment and

readiness to take responsibility for his children that underlies the decision. Appellant

claims he took some classes in prison on parenting and anger management, but

does not provide evidence of completion, and apparently did not attempt to see if the

classes could be recognized or approved by Appellee. Similarly, Appellant refers to a

single clean drug test, but again provides no evidence and apparently never provided

or attempted to provide the test results to Appellee.

{¶20} Other districts have found that incarcerated parents who made more

extensive attempts to comply with their case plans, have nevertheless failed to

establish their ability to care for their children to overcome a decision that permanent

transfer of custody is in the child’s best interests. These include In re Vance, 3d Dist.

Nos. 05-03-16, 05-03-17, 05-03-18, 2003-Ohio-6991 (where the natural mother,

frequently incarcerated, provided attendance records for classes she took in prison,

but failed to provided information to establish that the classes were “similar or

identical to those considered acceptable by the case plan” ¶20); In re S.S., 10th Dist.

No. 05AP-204, 2005-Ohio-4282 (where the court found that Appellant had made

efforts at stabilizing her life, including evidence that she completed parenting classes

and had participated in drug screening, but the court could not “ignore appellant's

extended absences during D.S[.]’s early years of life and the effects of these

absences” despite these efforts. ¶35); and In re Strader, 5th Dist. No. 2008 CA

00255, 2009-Ohio-1292 (where appellant, although incarcerated, established

paternity and sent his child mail on his birthday and Christmas, contacted the child’s
 -20-

caseworker for updates on the child’s welfare, and completed Responsible Family

Life Skills and Dad 101 classes while in prison, but was unemployed when

incarcerated, had no promise of employment upon release, and planned to live in a

shelter on release until he could find employment but was not certain if the shelter

would allow children. The court found that permanent transfer of custody was in the

child’s best interest, due in part to the father’s 18 month absence from the child’s life

and the absence of employment and stable housing.) Appellant in this instance has

not taken even nominal steps in order to demonstrate his commitment to, and ability

to take care of, D.M.C. Prior to his incarceration he transferred responsibility to the

natural mother, who at the hearing he described as solely responsible for any neglect

and mistreatment the children suffered. At the time he was incarcerated he was

unemployed and lacked stable housing. At the time of hearing he was incarcerated

and has no plan for either employment or housing. He has been continually absent

from D.M.C.’s life virtually from birth and made no attempt to contact the child in three

years. The findings made by the court and the information contained in the record

below do not lead us to conclude that the trial court abused its discretion or that the

judgment was against the manifest weight of the evidence. The trial court was in the

best place to evaluate the information before it, and Appellant has identified no defect

in the proceedings or the record that undermines the determination made by the trial

court. In re Anteau, supra, at 48. Appellant’s sole assignment of error is overruled.

Conclusion

{¶21} The trial court complied with the procedure prescribed by R.C.

2151.414 and applied the appropriate burden of proof. Appellant has not identified a
 -21-

defect or error, and argues only that the trial court should have reached a different

conclusion. The record below does not reflect an abuse of discretion occurred. The

judgment entered by the trial court is supported by the evidence that appears in the

record. The judgment of the trial court is affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.