[Cite as In re N.E., 2016-Ohio-5201.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. Sheila G. Farmer, P.J.
N.E. (DOB: 8/21/09) : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 2016CA00054
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Family Court Division, Case
No. 2015JCV00316
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 1, 2016
APPEARANCES:
For Appellant For Appellee
DAVID L. SMITH JAMES B. PHILLIPS
P.O. Box 20407 300 Market Avenue North
Canton, OH 44701 Canton, OH 44708
Stark County, Case No. 2016CA00054 2
Farmer, P.J.
{¶1} On April 3, 2015, appellee, Stark County Department of Job and Family
Services, filed a complaint alleging N.E., born August 21, 2009, to be a neglected
and/or dependent child. Father of the child is appellant, Ronald Eick, Jr.; mother is
Jessica Waggoner.1
{¶2} Following a shelter care hearing, the child was placed in appellee's
emergency temporary custody.
{¶3} An adjudicatory hearing was held on April 29, 2015, wherein both parents
stipulated to dependency. The dispositional hearing followed and the trial court placed
the child in appellee's temporary custody and a case plan was approved and adopted.
{¶4} On January 11, 2016, appellee filed a motion for permanent custody. A
hearing was held on February 24, 2016. Neither parent attended. By nunc pro tunc
judgment entry filed February 29, 2016, the trial court terminated parental rights, and
granted appellee permanent custody of the child. Nunc pro tunc findings of fact and
conclusions of law were filed contemporaneously with the judgment entry.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "THE TRIAL COURT'S JUDGMENT THAT THE MINOR CHILD CANNOT
AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE
PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF
THE EVIDENCE."
1Mother, as well as another child born March 14, 2013, were included in the underlying
hearings, but are not a part of this appeal.
Stark County, Case No. 2016CA00054 3
II
{¶7} "THE TRIAL COURT'S JUDGMENT THAT THE BEST INTERESTS OF
THE MINOR CHILD WOULD BE SERVED BY GRANTING PERMANENT CUSTODY
WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I, II
{¶8} Appellant claims the trial court's decision to grant permanent custody of
the child to appellee was against the manifest weight and sufficiency of the evidence.
Appellant claims the trial court erred in finding the child could not be placed with him
within a reasonable period of time and the best interest of the child was best served by
granting appellee permanent custody. Appellant claims given his cognitive skills and
abilities, he should have been afforded more than one year to complete his case plan,
and an extension of time would have facilitated a stronger bond with the child. We
disagree.
{¶9} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10,
1982). Accordingly, judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d
279 (1978). On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
Stark County, Case No. 2016CA00054 4
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]
clearly lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-
52; Eastley v. Volkman, 132 Ohio St .3d 328, 2012-Ohio-2179. In weighing the
evidence, however, we are always mindful of the presumption in favor of the trial court's
factual findings. Eastley at ¶ 21.
{¶10} 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
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
Stark County, Case No. 2016CA00054 5
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.
(16) Any other factor the court considers relevant.
{¶11} R.C. 2151.414(B)(1) 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:
(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.
Stark County, Case No. 2016CA00054 6
(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***.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by
any court in this state or another state.
{¶12} 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.
{¶13} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interest 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:
Stark County, Case No. 2016CA00054 7
(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;
(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.
{¶14} Wanda Pounds, the ongoing case worker assigned to the case, was the
sole witness at the permanent custody hearing. Although appellant was represented by
Stark County, Case No. 2016CA00054 8
counsel at the hearing, he did not appear. In its nunc pro tunc findings of fact and
conclusions of law filed February 29, 2016, the trial court found the following relative to
appellant:
12. Ms. Pounds testified that Father was given a case plan to
complete. Father was to complete a parenting assessment at Northeast
Ohio Behavioral Health and follow all recommendations, complete a Quest
assessment, submit to random drug testing, complete Goodwill Parenting
after achieving sobriety, and engage in individual and joint therapy.
13. Ms. Pounds testified that Father is low functioning.
14. Ms. Pounds testified that Father was terminated from Quest for
failure to attend. Ms. Pounds testified that Father failed drug screens on
December 7, 2015 and January 16, 2016, testing positive for marijuana
and methamphetamines.
15. Ms. Pounds testified that Father failed to engage in counseling.
16. Ms. Pounds testified that Father could not initiate Goodwill
Parenting because he did not achieve sobriety.
17. Ms. Pounds testified that Father's visits were sporadic.
18. Ms. Pounds testified that Father lacks stable housing and
financial stability.
19. Ms. Pounds testified that Father cannot provide a safe home
and has not reduced the risk to the child.
Stark County, Case No. 2016CA00054 9
{¶15} The trial court concluded relative to appellant:
3. THEREFORE, the Court finds by clear and convincing evidence
that Mother and Father have not reduced the risk of harm to the child and
cannot safely parent the child.
4. THEREFORE, the Court finds by clear and convincing evidence
that the Agency made reasonable efforts to prevent the need for
placement and/or make it possible for the child to return home
notwithstanding the child cannot be placed with either within a reasonable
time or should not be placed with either parent.
{¶16} Ms. Pounds testified appellant was low functioning and his cognitive ability
was an issue. T. at 10. His IQ is "in the low eighties." T. at 13. The case plan required
appellant to obtain a parenting assessment from Northeast Ohio Behavioral Health,
participate in Quest, provide random drug screens, complete Goodwill Parenting, and
participate in individual therapy and possibly joint therapy with the child. T. at 10.
{¶17} Appellant obtained his parenting assessment. Id. He attended Quest, but
did not complete it due to lack of attendance. T. at 10-11. He submitted drug screens
and tested positive for amphetamine, methamphetamine, and marijuana. T. at 11.
Appellant did not attend Goodwill Parenting because of his "inability to successfully
complete Quest and to provide clean drug screens." Id. He never initiated counseling
services. Id. As far as stability and housing, appellee had three different addresses for
appellant in the past ten months, and "each address was the housing of someone else
Stark County, Case No. 2016CA00054 10
who was letting him stay with them. Um and each time he had to be asked to leave
their home." Id. At the time of the hearing, his whereabouts were unknown, possibly
Springfield, a suburb of Dayton. T. at 15. Appellant did not have a job, and his source
of income was applying for social security and "he's also working under the table." T. at
12. His visitations with the child were "pretty sporadic." Id. Out of twenty scheduled
visits, be made about six. Id.
{¶18} Ms. Pound opined more time would not be helpful, explaining the following
(T. at 13):
Well Father was a part of this case at the very beginning when it
was a non-court case and nothing was accomplished. Um we're going on
a year of court case. Again um the most basic thing that I needed him to
do Quest which is the key to everything else he wouldn't even show up for
the appointments. He doesn't show up for visits with his kids. Um I truly
don't think any more time is going to make any difference except for him to
show his children he's not committed to them.
{¶19} We find the trial court's conclusions are supported by the record. There is
nothing in the record to prove that any further time to develop the case plan would be
effective.
{¶20} As for best interests, Ms. Pounds testified to a minimal bond between
appellant and the child. T. at 19. The child was currently in foster care and her mental
health was improving with therapy. T. at 17-18, 20. The child was starting to thrive with
Stark County, Case No. 2016CA00054 11
more stabi and less chaos in her life. T. at 21. The current foster care home did not
wish to adopt, but another home had expressed interest in adopting the child which
appellee was pursuing. T. at 18. Ms. Pound opined the benefit of permanent custody
would outweigh any harm caused by breaking the bond with appellant. T. at 19.
{¶21} Upon review, we find sufficient clear and convincing evidence to support
the trial court's decision on best interest and the granting of permanent custody of the
child to appellee.
{¶22} Assignments of Error I and II are denied.
{¶23} The judgment of the Court of Common Pleas of Stark County, Ohio,
Family Court Division is hereby affirmed.
By Farmer, P. J.
Gwin, J. and
Delaney, J. concur.
SGF/sg 717