[Cite as In re S.H., 2015-Ohio-269.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
BUTLER/HAIRSTON CHILDREN Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Case No. 2014CA00148
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2013 JCV 00135
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 20, 2015
APPEARANCES:
For Appellant For Appellee
MARK OSTROWSKI LISA A. LOUY
Stark County Public Defenders Office Stark County DJFS
201 Cleveland Avenue S.W., Suite 104 300 Market Avenue North
Canton, Ohio 44702 Canton, Ohio 44708
Stark County, Case No. 2014CA00148 2
Hoffman, P.J.
{¶1} Appellant Mairion Hairston (“Father”) appeals the July 14, 2014 Judgment
Entry entered by the Stark County Court of Common Pleas, Family Court Division,
which terminated his parental rights, privileges, and responsibilities with respect to his
minor child and granted permanent custody of the child to appellee Stark County
Department of Job and Family Services (“SCDJFS”).
STATEMENT OF THE CASE AND FACTS
{¶2} On February 11, 2013, SCDJFS filed a complaint, alleging S.H. (dob
11/29/04) and five siblings were dependent and neglected children and seeking
temporary custody of them.1 Father is the biological father of S.H. The trial court
conducted an emergency shelter care hearing on the same day and awarded
emergency temporary custody of the children to SCDJFS.
{¶3} On March 6, 2013, Father stipulated to a finding of dependency for the
children. SCDJFS agreed to delete the allegations of neglect. Father agreed to the
award of temporary custody of the children to SCDJFS as well as to the approval and
adoption of the case plan. Following a review hearing on July 30, 2013, the trial court
maintained the status quo.
{¶4} SCDJFS filed a motion to change legal custody of two of the siblings, M.H.
and Da.H., to Father on December 11, 2013. At the second review hearing on January
3, 2014, the trial court set the matter for evidentiary hearing on the motion for change of
1
This Appeal only involves S.H.; therefore, we shall only include facts relative to S.H.
unless necessary to do otherwise.
Stark County, Case No. 2014CA00148 3
legal custody with respect to M.H. and Da.H., and maintained the status quo with
respect to S.H.
{¶5} On January 6, 2014, SCDJFS filed a motion to extend temporary custody
of S.H. to August 8, 2014. The same day, SCDJFS filed a motion for permanent
custody of two different siblings, T.H. and Se.H. SCDJFS subsequently sought to
amend the motion for permanent custody to include S.H. The trial court scheduled a
hearing for April 28, 2014. Father filed a motion for extension of temporary custody on
April 21, 2014.
{¶6} For a number of reasons, the April 28, 2014 hearing was continued.
However, on that day, the trial court appointed counsel for S.H. Counsel for S.H. filed a
motion for extension of temporary custody on June 9, 2014. The trial court conducted a
hearing on SCDJFS’s motion for permanent custody as well as Father’s and S.H.’s
motions for extension of temporary custody on July 9, 2014.
{¶7} The testimony adduced at the hearing revealed Father had failed to
satisfactorily complete his case plan. The case plan required Father to undergo a drug
and alcohol assessment and follow all recommendations; complete a parenting
evaluation and follow all recommendations; maintain stable housing and employment;
complete anger management classes; attend Goodwill parenting; and submit to random
drug screens.
{¶8} Father completed the drug and alcohol assessment and followed through
with treatment recommendations early in the case. He submitted negative drug screens
until May, 2014, after which he tested positive for marijuana on three occasions.
Stark County, Case No. 2014CA00148 4
{¶9} Father completed his parenting evaluation. The evaluator recommended
Father complete Goodwill parenting classes; engage in the Goodwill home-based
parenting education program should he be given custody; undergo drug treatment;
maintain sobriety; undergo anger management treatment; secure gainful employment;
participate in joint counseling with the children; and participate with family mental health
services.
{¶10} Although Father engaged in the services offered through Goodwill, the
Goodwill instructor, who worked with the family, testified Father did not successfully
complete his program goals. The instructor spent most of her time mentoring Father on
meeting the basic needs of S.H. and her siblings. The instruction included maintaining
housing and working utilities. Father did not maintain stable housing and faced eviction
during the proceedings. He struggled to keep the electricity on in the home.
{¶11} Father did not complete anger management. Father did not have gainful
employment during the case. He was receiving government assistance, but only had a
few months of eligibility left of such assistance. Father acknowledged his lack of a high
school diploma or GED was probably holding him back from gaining employment.
Nonetheless, despite being given information at the commencement of the case, he had
failed to take any steps toward completing this goal. Father claimed he would obtain his
GED if given the six month extension.
{¶12} In addition to two of S.H.’s siblings whom SCDJFS had placed with him,
Father resided with his girlfriend, her child from a previous relationship, and the child
they have together. The girlfriend’s child has significant behavior issues which required
Stark County, Case No. 2014CA00148 5
psychiatric intervention. The girlfriend was in treatment for drug issues. Further, Father
had not had any contact with S.H. since December, 2013.
{¶13} Cheri Smith, the SCDJFS caseworker assigned to the family, testified S.H.
is a nine year old, bi-racial child. S.H. has been diagnosed with reactive attachment
disorder, oppositional defiant disorder, attention deficit disorder, post traumatic stress
disorder, and possibly a general anxiety disorder. S.H. was initially placed with a
relative, but the relative was unable to maintain long-term placement. No other family
members were willing or appropriate to take custody of S.H. The girl had been the
victim of sexual abuse and had sexually perpetrated against another child while in a
prior foster home. The caseworker testified any harm to S.H. caused by the termination
of parental rights would be outweighed by the benefits to her from adoption and
permanency.
{¶14} Gail Mager, S.H.’s counselor, testified she had seen the girl for 18
sessions over a six month period. Mager diagnosed S.H. with reactive attachment
disorder and ADHD. The counselor stated S.H. is a child who manipulates, lies, and
steals. In addition, S.H. is not well socialized and does not interact well with others.
S.H. has little respect for adults, and views people as object to manipulate to obtain
what she wants. Mager believes S.H. will likely need long term mental health
intervention and would be better in a single child home. Mager stated individuals can
be trained to appropriately deal with S.H.’s issues, however, Mager did not think Father
would be a good candidate for such training. As Mager explained S.H. had “developed
these issues because of how she has been parented in her life.” Father never asked to
be included in S.H.’s mental health treatment. Mager acknowledged S.H. misses Father
Stark County, Case No. 2014CA00148 6
and is disappointed by his lack of contact. However, Mager did not feel S.H. was
capable of making an intelligent decision as to her placement.
{¶15} Via Judgment Entry filed July 14, 2014, the trial court terminated Father's
parental rights, privileges, and responsibilities, and granted permanent custody of S.H.
to SCDJFS. The trial court found S.H. cannot and should not be placed with Father
within a reasonable time, and it was in the girl’s best interest to grant permanent
custody to SCDJFS.
{¶16} It is from this judgment entry Father appeals, assigning as error:
{¶17} "I. THE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR
A SIX MONTH EXTENSION.
{¶18} "II. THE TRIAL COURT'S FINDING THAT PERMANENT CUSTODY WAS
IN S.H.'S BEST INTEREST WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE."
{¶19} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
II
{¶20} For ease of discussion, we shall address Father’s second assignment of
error first. In his second assignment of error, Father maintains the trial court erred in
finding permanent custody was in S.H.’s best interest.
{¶21} 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
Stark County, Case No. 2014CA00148 7
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.
{¶22} 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
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.
{¶23} 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.
Stark County, Case No. 2014CA00148 8
{¶24} 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.
{¶25} 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
factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of
the child's parents.
{¶26} As set forth in our statement of the facts and case, supra, Father failed to
remedy the problems which caused the removal of S.H. from the home. Father failed to
successfully complete his case plan. Although he underwent drug treatment, he failed
to maintain sobriety. He did not follow through with treatment for his anger issues. He
completed the Goodwill parenting class, but was unable to move beyond meeting the
basis needs of S.H. The stability of Father’s housing was always an issue. Father was
unemployed throughout the history of the case.
{¶27} With respect to the best interest finding, the evidence revealed S.H. has
significant mental health issues, which Father is not capable of handling. S.H. needs to
be in a single child home. Father’s living arrangement is not such a situation.
Stark County, Case No. 2014CA00148 9
{¶28} Based upon the foregoing, we find the trial court's finding an award of
permanent custody was in S.H.’s best interest was not against the manifest weight of
the evidence and was based upon sufficient evidence.
{¶29} Father’s second assignment of error is overruled.
I
{¶30} In his first assignment of error, Father asserts the trial court abused its
discretion in denying his request for an extension of temporary custody. Father
contends he could earn his GED during this extension and would then be able to obtain
gainful employment. We disagree.
{¶31} 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). In re C.F., 5th Dist. No. 2013-
CA-00182, 2013-Ohio-1415, para. 37. “Pursuant to R.C. 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.” Id.
{¶32} We find Father has failed to demonstrate an abuse of discretion by the
trial court in denying the motion for a six-month extension. As set forth more fully above,
the evidence before the trial court supports the conclusion that an extension of
temporary custody was not in S.H.'s best interest. Further, there is no evidence to
Stark County, Case No. 2014CA00148 10
support Father’s assertion he would his earn his GED during this time as he had failed
to take any steps to do so in the year and a half the case was pending.
{¶33} Based on the foregoing, we find that the trial court did not abuse its
discretion in denying Father’s motion for six-month extension of temporary custody.
{¶34} Father's first assignment of error is overruled.
{¶35} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur