[Cite as In re J.B.C., 2016-Ohio-1611.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
J.B.C.
Case No. 2016 CA 00010
MINOR CHILD OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 2013 JCV
01121
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES B. PHILLIPS BRANDY LOGSDON THORNE
QUAY COMPTON ASSISTANT PUBLIC DEFENDER
SCJFS 201 Cleveland Avenue SW
221 Third Street, SE Suite 104
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case No. 2016 CA 00010 2
Wise, P. J.
{¶1} Appellant-Father J.B. appeals the judgment of the Stark County Common
Pleas Court, Juvenile Division, awarding permanent custody of his son J.B.C. to Appellee
Stark County Department of Job and Family Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant J.B. is the biological father of J.B.C., born May 22, 2012. Appellee
Stark County Department of Job and Family Services (SCJFS) initially became involved
with Appellant and J.B.C. when the child’s mother arrived at a local emergency room with
burns consistent with the possible production/manufacturing of methamphetamine.
{¶3} A search of Appellant and Mother’s home found no evidence of drug
production. However the home was found to be in deplorable condition. (T. at 8).
{¶4} On November 4, 2013, an emergency shelter care hearing was held where
the trial court found probable cause for the involvement of SCJFS and placed J.B.C. and
his brother Z.B.C. in the emergency temporary custody of the SCJFS.
{¶5} On November 26, 2013, the trial court found the children to be dependent
and placed them into the temporary custody of SCJFS. The trial court approved and
adopted the case plan and found that SCJFS had made reasonable efforts to prevent the
need for continued removal of the children from the home.
{¶6} On April 9, 2014, the trial court reviewed the case. The trial court approved
and adopted the case plan review packet and maintained status quo.
{¶7} On September 30, 2014, the trial court again reviewed the case. The trial
court approved and adopted the case plan review packet and maintained status quo.
Stark County, Case No. 2016 CA 00010 3
{¶8} On October 2, 2014, SCJFS filed a motion seeking permanent custody of
the children.
{¶9} On November 21, 2014, Father, through his counsel, filed a Motion to
Extend Temporary Custody.
{¶10} On December 2, 2014, the trial court heard evidence on SCJFS's motion
seeking permanent custody of the children. Mother, through counsel, made an oral motion
at the hearing to Extend Temporary Custody. The trial court denied the SCJFS motion for
Permanent Custody and granted a Temporary Custody Extension until May 3, 2015.
{¶11} On March 27, 2015, the trial court again reviewed the case. The trial court
approved and adopted the case plan review packet and maintained status quo.
{¶12} On March 30, 2015, SCJFS filed a second motion seeking permanent
custody of the children.
{¶13} On June 8, 2015 Father, through his counsel, filed a Motion to Extend
Temporary Custody.
{¶14} On June 9, 2015 Mother, through counsel, filed a Motion to Extend
Temporary Custody.
{¶15} On September 24, 2015, the trial court again reviewed the case. The trial
court approved and adopted the case plan review packet and maintained status quo.
{¶16} On September 30, 2015 SCJFS filed a third motion seeking permanent
custody of the children.
{¶17} On December 14, 2015, the trial court heard evidence on SCJFS's third
motion seeking permanent custody of the children.
Stark County, Case No. 2016 CA 00010 4
{¶18} At the permanent custody hearing, SCJFS presented evidence regarding
Appellant and the children. (T. at 3-72). SCJFS caseworker Amy Craig testified for
SCJFS. (T. at 5-33, 49-60). Caseworker Craig testified that the complaint in this matter
was filed on November 4, 2013, and the child was found to be dependent on November
26, 2013. (T. at 8). The child at issue was placed into the temporary custody of the SCJFS
on November 26, 2013. Id. As of the date of the permanent custody trial, the child had
been in the temporary custody of the SCJFS in excess of 12 of the last 22 months. (T. at
9).
{¶19} Caseworker Craig further testified that Appellant had not consistently
complied with his counseling at Community Services. (T. at 35-36).
{¶20} Appellant was informed that full attendance at J.B.C.'s medical and service
provider appointments was needed to demonstrate that the parents could attend them on
their own. (T. at 13). J.B.C. has special needs and receives both physical therapy and
speech therapy every week. Id. Appellant failed to attend those appointments on a
consistent basis. Id. Appellant attended only one (1) speech therapy session and five (5)
physical therapy sessions since October 1, 2015. Id. Appellant consistently made
excuses for why he missed the medical appointments. Id.
{¶21} Mrs. Craig also testified that Appellant was inconsistent with visitation. (T.
at 14).
{¶22} On the date of the permanent custody trial, the parent's home was infested
with bedbugs despite SCJFS paying six times for an exterminator to come to their home.
(T. at 15).
Stark County, Case No. 2016 CA 00010 5
{¶23} Mrs. Craig testified that Appellant had not successfully completed his case
plan services so the child could be returned home, and the child would be at risk if
returned to the Appellant. Id.
{¶24} During the best interest portion of the hearing. Mrs. Craig testified that
J.B.C. is placed in a foster home with his brother. (T. at 51). J.B.C. has special needs and
is borderline in many areas. (T. at 52). J.B.C. has challenges with social communication
and interactions. Id. J.B.C. lacks muscle tone and strength. Id. He requires multiple
prompts to complete one step instructions. Id. He has been engaged in multiple services
since being placed in foster care. Id. While he still struggles with these issues, he has
made great improvements since being in foster care. Id. Mrs. Craig testified that J.B.C. is
like a different child as far as speech is concerned. Id. He is going to be reevaluated for
autism by a developmental pediatrician. (T. at 53). Mrs. Craig stated that while the current
foster parents are not interested in adopting, she knew of no reason the child could not
adapt to a new adoptive home. (T. at 51).
{¶25} Finally, Mrs. Craig testified that the child had been in the custody of SCJFS
for two (2) years as of the date of the permanent custody hearing. (T. at 53). She further
testified that while there is a bond between the child and Appellant, the benefit of
permanent custody outweighed any harm that might be caused by breaking that bond.
(T. at 54). Appellant had not demonstrated that he could meet the special needs of the
child, and the child deserved permanency. Id. Mrs. Craig testified that she believed that
granting permanent custody was in the child's best interest. Id.
Stark County, Case No. 2016 CA 00010 6
{¶26} Appellee SCJFS also presented the report of the Guardian-ad-Litem, which
supported the granting of permanent custody as being in the best interest of the child. (T.
at 68).
{¶27} On December 15, 2015, the trial court issued its findings of fact granting
permanent custody of the children to SCJFS and terminating Appellant's parental rights.
{¶28} Appellant-father now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶29} “I. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILDREN
CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE
{¶30} A. THE TRIAL COURT ERRED IN FINDING APPELLEE MADE
REASONABLE EFFORTS TO PREVENT THE NEED FOR PLACEMENT AND/OR
MAKE IT POSSIBLE FOR THE CHILD TO RETURN HOME.
{¶31} “II. THE TRIAL COURT’S JUDGMENT THAT THE BEST INTERESTS OF
THE MINOR CHILDREN WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
I.
{¶32} Appellant argues that he substantially complied with his services and made
significant repairs to the home.
{¶33} A trial court's decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear
Stark County, Case No. 2016 CA 00010 7
and convincing evidence” as “[t]he measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
{¶34} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “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.” State
v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment
is “supported by some competent, credible evidence going to all the essential elements
of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at
74, 564 N.E.2d 54.
{¶35} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), “The
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.”
Stark County, Case No. 2016 CA 00010 8
{¶36} Moreover, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident 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); see, also, In re: Christian, 4th Dist. Athens App. No.
04CA10, 2004–Ohio–3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004–
Ohio–2040.
{¶37} Pursuant to §2151.414(B), the court may grant permanent custody of a child
to the movant if the court determines “that it is in the best interest of the child to grant
permanent custody to the agency that filed the motion for permanent custody and that
any of the following apply:
(a) The child is not abandoned or orphaned, has not 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 the child cannot be placed with either of
the child's parents within a reasonable period of time or should not be
placed with the child's parents.* * *
(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
Stark County, Case No. 2016 CA 00010 9
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶38} Revised Code §2151.414(E) sets forth the factors a trial court must consider
in determining whether a child cannot or should not be placed with a parent within a
reasonable time. If the court finds, by clear and convincing evidence, the existence of any
one of the following factors, “the court shall enter a finding that the child cannot be placed
with [the] 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 parent to remedy the problem that initially caused the child to
be placed outside the home, the parents have failed continuously and
repeatedly to substantially remedy the conditions that caused the child to
be placed outside the child's home. In determining whether the parents
have substantially remedied the 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.* * *
(16) Any other factors the court considers relevant.
{¶39} In the case sub judice, the trial court found by clear and convincing evidence
that the child had been in the temporary custody of a public children services agency for
twelve or more months of a consecutive twenty-two month period pursuant to R.C.
§2151.414(B)(1)(d). Appellant does not challenge the trial court's finding. This finding
Stark County, Case No. 2016 CA 00010 10
alone, in conjunction with a best-interest finding, is sufficient to support the grant of
permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118, 2008–Ohio–5458, ¶ 45.
{¶40} Further, the trial court’s finding that J.B.C. could not be placed with
Appellant within a reasonable period of time was not against the manifest weight or
sufficiency of the evidence. As set forth above, the caseworker testified that Appellant
failed to comply with his counseling services, failed to attend J.B.C.’s medical and service
provider appointments, and failed to consistently visit J.B.C. Further, despite SCJFS
sending an exterminator to the home on six (6) occasions, the home was still infested
with bedbugs. The trial court’s finding that Appellant failed to successfully complete his
case plan, and that J.B.C. would be at risk if he were to be returned to Appellant-father is
not against the manifest weight or sufficiency of the evidence.
{¶41} The First Assignment of Error is overruled.
II.
{¶42} In his Second Assignment of Error, Appellant argues that finding that
permanent custody was in the best interest of J.B.C. was against the manifest weight and
sufficiency of the evidence.
{¶43} 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
Stark County, Case No. 2016 CA 00010 11
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody.
{¶44} The trial court recognized that Appellant and J.B.C. shared a bond.
However, the court found that the child’s interest in permanency outweighed the detriment
of severing this bond. The evidence demonstrated that J.B.C. has made great
improvements while in foster care. The caseworker testified that as far as speech was
concerned, J.B.C. was like a different child. Further, Appellant has failed to demonstrate
that he can meet J.B.C.’s special needs. Additionally, the report of the guardian ad litem
recommended that permanent custody be granted to Appellee.
{¶45} Based on the foregoing, we find that the trial court’s finding that permanent
custody was in the best interest of J.B.C. was supported by the evidence.
{¶46} The Second Assignment of Error is overruled.
{¶47} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Stark County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0405