In re K.B.

[Cite as In re K.B., 2015-Ohio-3725.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: K. AND D.B. : JUDGES:
AND L.F. :
: Hon. Sheila G. Farmer, P.J.
NEGLECTED/DEPENDENT : Hon. John W. Wise, J.
CHILDREN : Hon. Patricia A. Delaney, J.
:
: Case No. 2015AP050021
:
:
:
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Juvenile
Division, Case No. 13JN00223

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 11, 2015

APPEARANCES:

For Appellant David Blackwell: For Appellee Tuscarawas Co. DJFS:
MARK PERLAKY KAREN ROSS QUINLAN
111 W. Main St. 389 16th St. S.W.
Newcomerstown, OH 43832 New Philadelphia, OH 44663

Guardian Ad Litem:
KAREN DUMMERMUTH
349 East High Ave.
P.O. Box 494
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015AP050021 2

Delaney, J.

{¶1} Appellant David Blackwell appeals from the April 3, 2015 Judgment Entry

of the Tuscarawas County Court of Common Pleas, Juvenile Division, placing K.B. in

the permanent custody of appellee Tuscarawas County Job & Family Services (the

"Agency").

FACTS AND PROCEDURAL HISTORY

{¶2} Nicole Elkins ("Mother") is the biological mother of three children: K.B.

(D.O.B. 10/22/09), D.B., and L.F.1 Appellant is the biological father of K.B. Mother

stipulated placement of the children with the Agency was in the children's best interest

and is not a party to this appeal.

{¶3} Appellant and Mother were in a relationship for several years but were not

married. They lived together in Alaska while appellant was in the Army; Mother

returned to her home state of Connecticut for K.B.'s birth in 2009 because appellant was

deployed. Appellant was a Blackhawk mechanic and served in Iraq. Due to an incident

of underage drinking and a period spent AWOL, appellant was demoted and eventually

discharged from the Army, albeit "under honorable conditions."

{¶4} The relationship between appellant and Mother was fraught with domestic

violence beginning in Alaska and continuing upon their eventual return to Ohio.

Appellant was convicted of three domestic violence offenses against Mother including a

fourth-degree felony violation when Mother was eight months pregnant. This offense

resulted in appellant's incarceration in a community-based corrections facility,

1
The trial court also awarded permanent custody of D.B. and L.F. to the Agency in the
underlying order. Those children have different fathers and their custody is not at issue
in this appeal.
Tuscarawas County, Case No. 2015AP050021 3

S.R.C.C.C. Mother obtained a protective order against appellant which is still in effect

and expires in June 2017. Appellant and Mother have no relationship currently and had

no contact during the pendency of this case. Appellant now lives with a girlfriend, her

children, and the child they have together.

{¶5} In light of the domestic violence history and protective order, appellant did

not have any contact with K.B. for a period of two and a half years beginning in

November 2011. Sometime in 2012, appellant reportedly attempted to seek visitation

with K.B. in Wayne County, where Mother lived at the time. Appellant testified he

agreed to issuance of the protection order against him on the condition he would be

allowed to seek visitation with K.B.

{¶6} Appellant would not have any contact with K.B. however, until April 22,

2014.

{¶7} During the interim, Mother lived in Tuscarawas County with the children

and the Agency was intermittently involved with the family, culminating in the events of

late May, 2013. At that time, D.B. was admitted to the hospital for respiratory problems.

The hospital was unable to locate Mother for a meeting about the child's condition and

called police. Mother's home was subsequently found to be in deplorable condition,

described as filthy and flea-infested.

{¶8} At the shelter care hearing on June 3, 2013, Mother was granted

supervised visitation and no visitation was ordered for any of the fathers, including

appellant. At the adjudication on July 3, 2013, the children were found to be neglected

and dependent. Mother and appellant were ordered to comply with the Agency's case

plan.
Tuscarawas County, Case No. 2015AP050021 4

{¶9} Appellant petitioned for visitation with K.B. on February 25, 2014 and was

granted supervised visitation at the Agency, resulting in a total of 17 visits between K.B.

and appellant. Appellant terminated the visits because his work schedule at the time

did not permit him to have visitation time on Mondays. Agency workers provided

information on other locations for supervised visitation including at "P.F.C.S."

Supervised visits at P.F.C.S. could have been paid for by the Agency if appellant had

provided requested pay stub verification. Had appellant paid for the visits on his own,

the visits would have cost between $35 and $50 on a sliding scale.

{¶10} Appellant's last visit with K.B. was on September 15, 2014.

{¶11} During the pendency of the case, appellant made some progress on the

case plan, countermanded by his failure to follow through. He obtained a psychological

evaluation, but did not follow up with verifiable individual counseling. At different times

appellant was employed and purportedly working 12 hours a day, six days a week, but

by the time of the permanent custody hearing he was unemployed, having been fired for

harassing another employee. At the time of the hearing appellant was living with his

girlfriend in an apartment in Strasburg, but this was preceded by long periods of

unstable housing involving intermittent stays in a number of locations, evictions, and

homelessness.

{¶12} Appellant's current living situation is with his girlfriend, Nora, their two

children together, and one child of Nora's. Appellant has admitted to caseworkers that

Nora is the primary caretaker when he is working but needs help managing the children.

There was some evidence that Nora told a worker she was overwhelmed with the

children already present in the home, absent K.B.
Tuscarawas County, Case No. 2015AP050021 5

{¶13} Appellant acknowledged his history of domestic violence against Mother

but pointed out he successfully completed probation and has not had a criminal offense

since 2012. Nevertheless, when asked to describe each incident during the permanent

custody trial, he minimized his culpability and deflected blame on Mother. Appellant

completed anger management treatment at Melymbrosia but it took him two and a half

years to do so.

{¶14} Positive evidence at the hearing included the testimony of the family

service aide who provided individual parenting counseling to appellant and Nora. The

aide testified she observed real progress in appellant's parenting skills and in his

relationship with K.B.; appellant willingly asked her advice about parenting issues and

followed through with her recommendations.

{¶15} Just as the relationship with K.B. was getting on the right track, however,

appellant terminated the Monday visitations because of his work schedule.

{¶16} Evidence showed Agency workers told appellant he could have

supervised visitation at other approved locations during times that would work with his

schedule. Appellant testified he was not able to pay for those visits. Testimony

established, though, that if appellant had verified his income with pay stubs, the cost of

visitation at the other locations would be covered in whole or in part. Even if appellant

paid for the visits out of pocket, the visits would cost $35 to $50 each. Evidence also

established appellant had income that would have allowed him to meet these costs, and

the Agency and guardian ad litem worked with him to establish a budget, but appellant

did not follow through with steps necessary to establish another location for visitation.
Tuscarawas County, Case No. 2015AP050021 6

{¶17} Ultimately visitation was denied because the Agency determined too much

time had elapsed since appellant last saw K.B.

{¶18} The Agency filed a motion to modify disposition on November 7, 2014 and

a hearing was held on March 26, 2015. The trial court awarded permanent custody of

all three children to the Agency by Judgment Entry dated April 3, 2015.

{¶19} It is from this decision appellant now appeals.

{¶20} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶21} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY

SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT

THE CHILD [K.] COULD NOT BE PLACED WITH FATHER IN A REASONABLE

AMOUNT OF TIME, AND THAT AN AWARD OF PERMANENT CUSTODY WAS IN

THE CHILDREN'S BEST INTEREST."

ANALYSIS

{¶22} Appellant argues the trial court should not have awarded permanent

custody of K.B. to the Agency. We disagree. This case comes to us on the expedited

calendar and shall be considered in compliance with App. R. 11.2(C).

{¶23} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing

evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
Tuscarawas County, Case No. 2015AP050021 7

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954). “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.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all

the essential elements of the case supports the trial court's judgment, an appellate court

must affirm the judgment and not substitute its judgment for that of the trial court. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶24} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

{¶25} 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

of a child by a public children services agency.

{¶26} 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
Tuscarawas County, Case No. 2015AP050021 8

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.

{¶27} 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, a 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.

{¶28} In this case, the trial court found K.B. has been in the temporary custody

of the Agency for 12 or more months of a consecutive 22-month period. As we have

previously noted, pursuant to R.C. 2151.414(B)(1)(d), this finding alone is sufficient to

affirm the grant of permanent custody to the Agency. In re D.R., 5th Dist. Ashland No.

14-COA-021, 2014-Ohio-5658, ¶ 30. The trial court's conclusion on this point is

supported by clear and convincing evidence; the children were placed in temporary

custody on June 3, 2013 and adjudicated neglected and dependent on July 3, 2013.

[Mother regained custody on June 23, 2014, but this interlude lasted only until July 31,

2014.] The children have remained in Agency custody since July 31, 2014 and the

motion for permanent custody was filed on November 7, 2013. Appellant does not

contest this finding.
Tuscarawas County, Case No. 2015AP050021 9

{¶29} Appellant does dispute the trial court's finding the child cannot be returned

within a reasonable time pursuant to R.C. 2151.414(B)(1)(a). 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.

{¶30} The trial court determined that K.B. could not be placed with appellant

within a reasonable time pursuant to R.C. 2151.414(E)(1), which requires the following

findings:

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
Tuscarawas County, Case No. 2015AP050021 10

available to the parents for the purpose of changing parental

conduct to allow them to resume and maintain parental duties.

{¶31} A review of the record supports the trial court's decision that K.B. cannot

be placed with appellant within a reasonable time. (We note K.B. was not removed from

appellant's home but from Mother's, having not had meaningful contact with appellant

for some time). Appellant took steps to address his anger management but missed a

significant number of group therapy sessions. His attendance at individual counseling

at P.F.C.S. was sporadic. His employment history is also sporadic. The Agency made

repeated efforts to keep appellant on track but he was unable or unwilling to produce

income verification. The hearing also established appellant's readiness to blame others

and become angry when the fault lies with his own "lack of initiative," as described in his

psychological evaluation. Ultimately, we agree that K.B. cannot be placed with

appellant within a reasonable period of time.

{¶32} We next turn to the issue of best interest. We have frequently noted, “[t]he

discretion which the juvenile court enjoys in determining whether an order of permanent

custody is in the best interest of a child should be accorded the utmost respect, given

the nature of the proceeding and the impact the court's determination will have on the

lives of the parties concerned.” In re Mauzy Children, 5th Dist. No.2000CA00244, 2000

WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d

424 (8th Dist.1994). The trial court determined it was in the best interest of K.B. to be

placed in the Agency's permanent custody and we agree.

{¶33} K.B.'s relationship with appellant consists of 17 supervised visits.

Unfortunately the evidence established those visits were insufficient to create a
Tuscarawas County, Case No. 2015AP050021 11

meaningful bond between K.B. and appellant. K.B. is currently placed in foster care

together with the only siblings he has ever known.2 K.B. is thriving in the foster home

and is bonded with his foster parents, who have expressed willingness to adopt the

children.

{¶34} K.B. deserves permanency, and adoption would benefit him. Clear and

convincing evidence supports the trial court's conclusion that it is in K.B.'s best interest

to grant permanent custody to the Agency.

{¶35} Appellant also argues the Agency did not make reasonable efforts to

reunify appellant with K.B. because he was attempting to re-establish visitation when

the Agency stopped visitations. We disagree with appellant's assertion that he

"attempted to look for alternate visitations and affordable fees that would work with his

schedule." Despite the Agency's efforts to help appellant establish visitation at

P.F.C.S., appellant failed to make those efforts a priority. He did not produce a pay stub

and it was all but impossible for workers to contact him because his phone was

disconnected.

{¶36} Our review of the record allows us to further find the trial court's findings of

fact are supported by clear and convincing evidence. Appellant has a significant anger

problem which has resulted in criminal penalties and estrangement from his child. He

was dilatory in completing anger management and individual counseling. Visitation with

K.B. was stopped at appellant's request, and despite his belated attempts to restart

visitation, he did not comply with the steps to do so.

2
The record in the instant case establishes only that an attempt was made at kinship
care but the effort was unsuccessful. Appellant does not suggest placement with a
family member is an alternative in this case.
Tuscarawas County, Case No. 2015AP050021 12

{¶37} Upon our review of the record in light of the pertinent statutory factors, we

find the record contains clear and convincing evidence which supports the trial court's

determination. The trial court did not err when it determined K.B. could not be placed

with appellant in a reasonable time. The granting of permanent custody of K.B. to the

Agency was made in consideration of the child's best interests and was not an abuse of

discretion.

CONCLUSION

{¶38} Appellant's sole assignment of error is overruled and the judgment of the

Tuscarawas County Court of Common Pleas, Juvenile Division is affirmed.

By: Delaney, J. and

Farmer, P.J.

Wise, J., concur.