In re C.B. , 2012 Ohio 3486 ( 2012 )

[Cite as In re C.B., 2012-Ohio-3486.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: : Hon. W. Scott Gwin, P.J.
C.B., B.B., C.B., AND M.B. : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2012AP040027
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No.
11JN00143
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 30, 2012
APPEARANCES:
For Mother For Father
SHARON BUCKLEY-MIRHAIDARI JOHN GARTRELL, JR.
152 N. Broadway Ave., Ste. 200 153 North Broadway
New Philadelphia, OH 44663 New Philadelphia, OH 44663
DAVID HAVERFIELD KAREN DUMMERMUTH
For Job & Family Services Guardian Ad Litem
389 16th Street S.W. Box 494
New Philadelphia, OH 44663 New Philadelphia, OH 44663
[Cite as In re C.B., 2012-Ohio-3486.]
Gwin, P.J.
{¶1} Lisa B., the mother of the minor children C.B., B.B., C.B., and M.B.
appeals a judgment of the Court of Common Pleas, Juvenile Division, of Tuscarawas
County, Ohio, which terminated her parental rights and granted permanent custody of
the children to appellee Tuscarawas County Job and Family Services. Appellant
assigns two errors to the trial court:
{¶2} “I. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY
SERVICES PERMANENT CUSTODY AS SAID DECISION WAS NOT SUPPORTED
BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY O.R.C. 2151.414 AND
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶3} “II. THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY
SERVICES PERMANENT CUSTODY WHEN THERE WAS APPROPRIATE RELATIVE
PLACEMENT FOR THE CHILDREN.”
{¶4} The children’s father, Danny B. is not a party to this appeal. At the time of
the hearing, the children were a male aged 16, and females aged 13, 12, & 5. Appellee
removed the children from the home on March 17, 2011. The court found them
neglected and dependent, and placed them in the temporary custody of appellee. On
January 12, 2012, appellee filed a motion for permanent custody.
I.
{¶5} In her first assignment of error, appellant argues the court erred in
granting appellee permanent custody because the decision was not supported by clear
and convincing evidence and was against the manifest weight of the evidence.
Tuscarawas County, Case No. 2012AP040027 3
{¶6} Pursuant to R.C. 2151.414, the trial court must make a two-part analysis
before granting permanent custody. First it must determine by clear and convincing
evidence whether any of the criteria in R.C. 2151.414 (B)(1) apply. If the court
determines the criteria does apply, then the court must take the second step of
determining the best interest of the children by clear and convincing evidence pursuant
to R.C. 2151.414 (D).
{¶7} The criteria listed in R.C. 2151.414 (B)(1) are:
(a) The child is not abandoned or orphaned or 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 ending on or after March 18, 1999, 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.
(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 ending on or after
March 18, 1999.
{¶8} The Supreme Court has defined the term clear and convincing evidence
as evidence greater than a mere preponderance of the evidence, which produces in the
mind of the trier of fact a firm belief or conviction as to the facts sought to be
Tuscarawas County, Case No. 2012AP040027 4
established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E. 2d 118 (1954), syllabus by
the court, paragraph three.
{¶9} 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 Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶10} Moreover, “an appellate court may not substitute its judgment for that of
the trial court. 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
Company v. Cleveland, the underlying rationale of deferring to the findings of the trial
court rests with the understanding 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. 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, 1997-Ohio-260, 674 N.E.2d 1159.
{¶11} The trial court made findings of fact by clear and convincing evidence.
The court found the children had been removed from the home on March 17, 2011,
approximately one year before the hearing. The court found the removal was prompted
by issues of domestic violence, drug and alcohol abuse, and the long criminal history of
both parents. The court found the report of the guardian ad litem, confirmed by the
testimony of the agency’s case worker, was an accurate summary of the criminal history
Tuscarawas County, Case No. 2012AP040027 5
of both parties, as well as their involvement with appellee. The court’s judgment entry
did not set out appellant’s criminal history in detail, but found it consisted mostly of theft
and fraud, disorderly conduct, and endangering children. The court found there was
also a history of numerous calls to law enforcement, mostly made by appellant,
concerning violations of protection orders.
{¶12} The trial court found the children had formerly been in the custody of
Kentucky’s Child Protective Services while both parents were in jail.
{¶13} The case plan for unification of the family listed objectives for appellant,
including: (1) complete psychological evaluation and follow the recommendations; (2)
complete parenting education; (3) obtain a drug and alcohol assessment; (4) obtain
housing; (5) obtain employment or income; and (6) receive domestic violence
counseling.
{¶14} The trial court made numerous findings regarding appellant’s progress on
her case plan. The court found although appellant had completed a psychological
assessment, she had withheld or lied about certain information so excessively that the
court found the evaluation was of no value. The court noted that at the hearing,
appellant insisted none of the information she withheld mattered, because her criminal
history has no bearing on her ability to parent. The court found appellant had
repeatedly failed to honor protection orders issued for her own benefit. Appellant
insisted that despite the alcohol abuse and extensive violence, her husband was a good
father to the children.
{¶15} The court found appellant had failed to maintain steady employment and
housing. She has a long history of prescription drug abuse and had attended the drug
Tuscarawas County, Case No. 2012AP040027 6
and domestic violence programs at Harbor House. The court found during the time she
was at Harbor House, appellant continued to send her husband letters while he was
incarcerated, which violated Harbor House’s policy. After being caught corresponding
with her husband, appellant continued to do so by allowing another resident to send
letters to him. Appellant spent 88 days in Harbor House, but left against the advice of
counsel when appellee filed its motion for permanent custody.
{¶16} The court found appellant’s visitation with the children had never
progressed beyond supervised visitation and although the children appeared to enjoy
their visits with her, the visits were chaotic. The court found the older children clearly felt
the need to assume the parental role during the visits. The court also found appellant
discussed inappropriate legal issues with the children and lied to them about her own
progress and other important things in their lives. She lied even though the children
could clearly discern the truth. The court found appellant made no attempt to parent the
children and did not want them to be “mad” at her, resulting in behavior more like a
friend than a mother. The court found appellant made no attempt to take sincere
responsibility for her actions and the hurt that she had caused the children. In her brief
appellant states a great deal of the harm the children suffered was due to appellee’s
actions, and events while the children were in foster care.
{¶17} The court found all four children are currently residing in the same foster
home and have a reasonably good relationship with each other. The court found they
have made some progress towards overcoming their family situation, and no
appropriate relative placement exists.
Tuscarawas County, Case No. 2012AP040027 7
{¶18} Based upon these facts and the recommendation of the Guardian Ad
Litem, the court concluded the children cannot and should not be placed with either
parent within a reasonable time.
{¶19} The court found despite diligent reasonable efforts of planning by
appellee to remedy the problems which caused the removal of the children, both
parents had failed continually and repeatedly to substantially remedy the conditions
causing removal. Specifically, the court found appellee had addressed all the concerns
in its case plan, and had offered supportive services for each element of the case plan
in order to assist appellant to complete it. The court concluded that the parents have
demonstrated a lack of commitment towards their children and have failed to provide an
adequate home for the children and cannot do so within a year of the litigation.
{¶20} A trial court may base its decision that a child cannot or should not be
placed with a parent within a reasonable time upon the existence of any one of the R.C.
2151.414(E) factors. The existence of one factor alone will support a finding that the
child cannot be placed with the parent within a reasonable time. See In re: William S.,
75 Ohio St.3d 95, 1996-Ohio-182, 661 N.E .2d 738. Nevertheless, a court should not
give one factor more weight than another. In re: Schaefer, 111 Ohio St.3d 498. 2006–
Ohio–5513. The pertinent factors are:
(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
Tuscarawas County, Case No. 2012AP040027 8
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.
(2) Chronic mental illness, chronic emotional illness, mental retardation,
physical disability, or chemical dependency of the parent that is so severe
that it makes the parent unable to provide an adequate permanent home
for the child at the present time and, as anticipated, within one year after
the court holds the hearing pursuant to division (A) of this section or for
the purposes of division (A)(4) of section 2151.353 of the Revised Code;
***
{¶21} Appellant argues that the trial court’s findings are not supported by the
evidence and testimony presented at the hearing. Appellant asserts appellee failed to
prove the children could not be placed with appellant, because she had successfully
and substantially completed all the case plan requirements except for housing.
{¶22} Appellant conceded she had not obtained housing at the time of the
hearing, but she testified she should have housing in a couple of months. She asserts
contrary to the court’s finding, she took responsibility for her actions and had made
positive changes.
Tuscarawas County, Case No. 2012AP040027 9
{¶23} The trial court found it to be in the children’s best interest for them to be
placed in appellee’s permanent custody. To make such a determination, the court must
consider the factors listed in R.C. 2151.414(D). The factors are:
(1) 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;
(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, 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 ending on or after March 18, 1999;
(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 to the agency;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶24} The trial court’s findings of fact concerning the children are sparse, but the
court specifically stated it considered all the statutory factors. Appellant does not cite us
to any place in the judgment entry or in the record to contest this.
{¶25} We have reviewed the record, including the transcripts of the hearings,
and we find the trial court’s findings are supported by clear and convincing evidence
and are not against the manifest weight of the evidence.
Tuscarawas County, Case No. 2012AP040027 10
{¶26} The first assignment of error is overruled.
II.
{¶27} In her second assignment of error, appellant argues the trial court erred in
granting appellee permanent custody when there was an appropriate relative placement
for the children. The trial court found there was no appropriate relative placement
available. Appellant argues the paternal grandmother, Shirley B., was present in court
and petitioned the court for home studies and for custody of the children. The record is
unclear regarding Shirley B.’s participation in the home study.
{¶28} At the hearing for permanent custody, appellant was asked about her
relationship with Shirley B. Appellant testified Shirley B. would be a perfectly
appropriate placement, but conceded that at a prior hearing appellant had objected to
Shirley B.’s presence in the courtroom and had asked to have her removed. Appellant
admitted having lied about Shirley B. because she had told the agency Shirley B. had a
problem with pills and sold some pills, had struck one of the children, and harassed the
family. Appellant explained she had made up all of those allegations because at the
time, appellant did not want the kids placed in Shirley B.’s custody, but rather wanted
them to return to appellant.
{¶29} The guardian ad litem’s report and appellee urged the court to place the
children in appellee’s permanent custody.
{¶30} We find the trial court did not err in determining there was no appropriate
relative placement available for the children. Accordingly, the second assignment of
error is overruled.
Tuscarawas County, Case No. 2012AP040027 11
{¶31} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, of Tuscarawas County, Ohio, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0713
[Cite as In re C.B., 2012-Ohio-3486.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF:
C.B., B.B., C.B., AND M.B. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2012AP040027
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Juvenile Division, of Tuscarawas County, Ohio, is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE