[Cite as In re L.D., 2015-Ohio-3182.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : Judges:
: Hon. Sheila G. Farmer, P.J.
L.D. : Hon. Patricia A. Delaney, J.
M.S. : Hon. Craig R. Baldwin, J.
R.D. :
J.C. : Case Nos. 15CA27
: 15CA28
DEPENDENT CHILDREN : 15CA29
: 15CA30
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case Nos.
2011-DEP-00162, 2011-DEP-00163,
2011-DEP-00164, 2011-DEP-00141
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 7, 2015
APPEARANCES:
For Appellant For Appellee
JOHN C. O'DONNELL J. PETER STEFANIUK
10 West Newlon Place 731 Scholl Road
Mansfield, OH 44902 Mansfield, OH 44907
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 2
Farmer, P.J.
{¶1} On August 1, 2011, appellee, Richland County Children Services, filed a
complaint alleging three children, L.D. born March 23, 2008, R.D. born April 25, 2009,
and M.S. born September 25, 2010, to be dependent and/or neglected children.
Appellee sought an order of protective supervision. Mother of the children is appellant,
Billy Jo Stanley; father of M.S. is David Crane; the father(s) of L.D. and R.D. is
presumed, putative, or unknown.
{¶2} On February 6, 2012, the children were found to be dependent, and were
placed under appellee's protective supervision.
{¶3} On March 20, 2012, appellant had a fourth child, J.C. Father of this child
is Mr. Crane.
{¶4} On November 27, 2012, the children were placed in emergency shelter
care with appellee at the request of appellant.
{¶5} On December 26, 2012, J.C. was found to be a dependent and neglected
child and was placed in appellee's temporary custody.
{¶6} On February 28, 2013, all the children were placed in appellee's
temporary custody.
{¶7} On July 31, 2014, appellee filed a motion for permanent custody of the
children. Hearings before a magistrate were held on October 27 and 29, and November
10, 2014. By decision filed December 4, 2014, the magistrate granted the motion and
terminated parental rights. Appellant filed objections. By judgment entry filed March 31,
2015, the trial court overruled the objections except for one pertaining to R.C.
2151.414(E)(4), and approved and adopted the magistrate's decision.
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 3
{¶8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶9} "TRIAL COURT ERRED IN FAILING TO SUBMIT FINDINGS OF FACT
BEFORE GRANTING PERMANENT CUSTODY OF THE CHILDREN TO RICHLAND
COUNTY CHILDREN SERVICES."
II
{¶10} "TRIAL COURT'S CONCLUSION THAT PERMANENT CUSTODY WAS
WARRANTED IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE."
I, II
{¶11} Appellant claims the trial court erred in failing to make sufficient findings of
facts before granting permanent custody to appellee. Specifically, appellant claims
appellee failed to prove the existence of any of the factors listed in R.C. 2151.414(D)
and (E). Appellant also claims the trial court's decision to grant permanent custody of
the children to appellee was not supported by clear and convincing evidence. We
disagree.
{¶12} R.C. 2151.414(E) sets out the factors relevant to determining permanent
custody. Said section states in pertinent part the following:
(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
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 4
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:
(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.
(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;
(16) Any other factor the court considers relevant.
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 5
{¶13} R.C. 2151.414(B)(1)(d) specifically states permanent custody may be
granted if the trial court determines, by clear and convincing evidence, that it is in the
best interest of the child and:
(d) 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, or 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 and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
{¶14} 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, 161 Ohio St. 469 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will 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.
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 6
{¶15} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interests of a child:
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division (A)(4)
or (5) of section 2151.353 or division (C) of section 2151.415 of the
Revised Code, 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 or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 7
(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.
{¶16} In its decisions filed December 4, 2014 in each separate case, the
magistrate found by clear and convincing evidence the children had been in appellee's
continuous custody "from November 27, 2012 to present." Therefore, the magistrate
found R.C. 2151.414(B)(1)(d), cited above, applied.
{¶17} The magistrate then found by clear and convincing evidence the children
could not be placed with either parent within a reasonable amount of time, citing the
factors under R.C. 2151.414(E)(1) and (4), cited above.
{¶18} The magistrate evaluated best interests under R.C.2151.414(D)(1)(a)
cited above and concluded appellant's "lifestyle choices" and "inattentive and neglectful
nature" threatened "the health and safety" of the children and provided for them "an
unstable and neglected existence with negative consequences for ***growth and
development." The magistrate also made a finding under R.C. 2151.414(D)(1)(c), cited
above.
{¶19} Appellant filed objections to the magistrate's decision. In its judgment
entries filed March 31, 2015 in each separate case, the trial court approved and
adopted the magistrate's decision except for one factor, finding the following in pertinent
part:
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 8
6. Billie Jo Stanley, the child's mother herein, filed the following
Objections to the Magistrate's Decision: 1) That RCCSB failed to prove by
clear and convincing evidence the existence of any "E" factor under
O.R.C. §2151.414(E) (specifically, the failure to prove by sufficient
evidence factors (E)(1) and (E)(4) of O.R.C. §2151.414), such that it was
error for the Magistrate to find that the child cannot be placed with either
parent within a reasonable time or should not be placed with either parent;
2) That RCCSB failed to prove by clear and convincing evidence that it is
in the best interests of the child for the Court to terminate parental
interests and place the child in the permanent custody of RCCSB.
Upon review of the Magistrate's Decision and the record the Court
finds that the Objections are without merit as to the child's mother, Billie Jo
Stanley, with the sole exception that the Court does find that RCCSB
failed to prove by clear and convincing evidence an unwillingness or lack
of commitment by the child's mother to provide an adequate permanent
home for the child. While there is evidence of the failure of Ms. Stanley to
comply with the case plan, the Court finds that much or most of that failure
was due to her personal struggles with depression, hopelessness, and
general feelings of being overwhelmed by her life's circumstance (i.e., by
reason of homelessness, unstable personal and relational circumstances,
bleak economic present and future, etc.) and not because of any volitional
unwillingness on her part to provide an adequate home for the child.
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 9
8. Regardless of the establishment or non-establishment of any "E"
factor under O.R.C. §2151.414, the Court finds by clear and convincing
evidence the following and enters the same as Supplemental Findings of
Fact/Conclusions of Law:
(1) The child herein has been in the temporary custody of RCCSB
for twelve or more months of a consecutive twenty-two month period
(O.R.C. §2151.414(B)(1)(d)).
(2) It is in the best interest of the child to grant permanent custody
of the child to RCCSB (O.R.C. §2151.414(B)(1)).
Upon de novo review the Court otherwise finds that the Magistrate's
Decision is supported by clear and convincing evidence and applicable
law. Accordingly, except with regard to the sole Objection sustained
herein (i.e., the failure of RCCSB to prove by sufficient evidence factor
(E)(4) of O.R.C. §2151.414 as to the child's mother, Billie Jo Stanley), all
other Objections are overruled.
{¶20} In each judgment entry under ¶ 7, the trial court made a specific finding as
to the respective father.
{¶21} Upon review, we find the magistrate's decisions and the trial court's
judgment entries, when read in pari materia, appropriately met the requirement of
findings of fact.
{¶22} In finding clear and convincing evidence to grant permanent custody of the
children to appellee, the trial court found the children had been in appellee's temporary
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 10
custody for twelve or more months of a consecutive twenty-two month period under
R.C. 2151.414(B)(1)(d), cited above. The trial court made the same finding for best
interests. Appellant does not challenge these findings. T. at 442.
{¶23} "When granting permanent custody under R.C. 2151.414(B)(1)(d), the trial
court need not find that the child cannot or should not be placed with either parent within
a reasonable time since such a finding is implicit in the time frame provided in the
statute." In re Myers Children 4th Dist. Athens No. 03CA23, 2004-Ohio-657, ¶ 10. We
note "only one of the factors set forth in R.C. 2151.414(D) needs to be resolved in favor
of the award of permanent custody in order for the court to terminate parental rights." In
re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 56.
{¶24} In approving and adopting the magistrate's decision, the trial court also
found, as stated above, appellant's "inattentive and neglectful nature" threatened "the
health and safety" of the children and provided for them "an unstable and neglected
existence with negative consequences for ***growth and development." The trial court
concluded there was no evidence of relative placement, the parents have failed to
provide the children with a legally secure placement, and appellee has made
reasonable and diligent efforts to prevent the removal of the children from the home.
{¶25} Despite the mandating language of R.C. 2151.414(D)(1)(c), appellant
argues she was not given reasonable time to complete the case plan and the granting
of permanent custody of the children to appellee was not in their best interests.
{¶26} Prior to the children being placed in appellee's temporary custody on
February 28, 2013, appellee had been involved with appellant and the family on
housing, cleanliness, food, dental care, medical care, substance abuse issues, and
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 11
discipline. T. at 36-37, 41, 45, 148-150, 152, 154-163, 166, 169-173, 175-177, 265-279.
The children had been placed under appellee's protective supervision on December 15,
2011, and were placed in emergency shelter care with appellee at the request of
appellant on November 27, 2012. T. at 179-180, 186. Despite appellee's efforts to
assist appellant and the family, the parents could not complete the objectives of the
case plan. T. at 328-334.
{¶27} The case plan objectives included mental health and substance abuse
assessments and follow through, attend parent education classes, obtain stable
housing, and maintain basic needs for the children. T. at 305. Appellant engaged in
mental health evaluations, but failed to follow through with counseling. T. at 307, 311-
313, 393-396. Appellant and the family lived in seven different places, including motels
and other people's residences. T. at 119-120, 324-325. Appellant's only employment
was at a gentlemen's club for a temporary period of time. T. at 120-121. Appellee
sanctioned appellant from her medical card for non-compliance with child support. T. at
334. Although appellant attempted to comply with her assessments and attend some
parenting classes, Mr. Crane has not attempted to meet the objectives of the case plan.
T. at 328-334.
{¶28} During the pendency of the case, appellant gave birth to two additional
children, and had broken up with the alleged father of these children, Mr. Crane, three
or four times. T. at 127, 245, 316. In August 2014, appellant was accused of assaulting
Mr. Crane's cousin, and was later found by the police sitting on a bench just before
midnight with a week old baby in her arms and another very young child. T. at 234-237,
254. She told the police officer she "had nowhere to go." T. at 236. Both the children
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 12
did not have proper clothing on, were urine soaked, and appellant was without diapers
or food/formula. T. at 237-238, 254. Appellee has filed a complaint in juvenile court
regarding these two children. T. at 336.
{¶29} Appellant's visitation with the children was problematic and chaotic
because she demonstrated an inability to manage the children and appeared very
frustrated and anxious. T. at 37-39, 44, 89-90, 93-94, 126-130, 322-323.
{¶30} As of the date of the hearing, appellant had been accepted in METRO
housing for a two bedroom unit which was not large enough for six children and two
adults. T. at 314-316.
{¶31} The guardian ad litem testified and opined permanent custody of the
children to appellee would be in their best interests. T. at 118. She opined the parents
could not provide a legally secure placement for the children. T. at 135.
{¶32} The foster mother of M.S. and J.C. noted the improvement of the two
children and expressed a desire to adopt them. T. at 77, 80. The two children have
bonded with the foster family and are thriving. T. at 83, 134, 335. L.D. and R.D. were in
a transitional plan, visiting with a family that was interested in adopting them. T. at 336.
{¶33} Upon review, we find the evidence presented supports a finding that
permanent custody is in the best interests of the children.
{¶34} Assignments of Error I and II are denied.
Richland County, Case Nos. 15CA27, 15CA28, 15CA29, & 15CA30 13
{¶35} The judgment of the Court of Common Pleas of Richland County, Ohio,
Juvenile Division is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 714