[Cite as In re N.S., 2015-Ohio-4340.]


                                        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.
        N. S.                                      Hon. Craig R. Baldwin, J.

        MINOR CHILD                                Case No. 2015 CA 00115


                                                   OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No. 2014
                                               JCV 00960


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 19, 2015



APPEARANCES:

For Appellant-Father                           For Appellee-Agency

MARY G. WARLOP                                 JAMES B. PHILLIPS
ABNEY LAW OFFICE                               STARK COUNTY JFS
116 Cleveland Avenue, NW, Suite 500            221 Third Street, SE
Canton, Ohio 44702                             Canton, Ohio 44702
Stark County, Case No. 2015 CA 00115                                                 2

Wise, P. J.

        {¶1}. Appellant Kye Schlott appeals the decision of the Stark County Court of

Common Pleas, Juvenile Division, which granted permanent custody of his son, N.S., to

Appellee Stark County Job and Family Services ("SCJFS"). The relevant facts leading

to this appeal are as follows.

        {¶2}. On September 23, 2014, Appellee SCJFS filed a complaint alleging that

N.S., then a newborn infant, was dependent under R.C. 2151.04(B), (C), and (D). Initial

concerns included the mental health of the mother, Desere Ohlinger, as well as her

cognitive issues and the deplorable condition of the family's home. There were also

concerns about appellant-father's substance abuse, specifically alcohol, reports of his

physical abuse of Desere, and his anger management and antisocial behavior issues.

Furthermore, the agency was already involved with the family regarding K.S., an older

sibling of N.S.

        {¶3}. Emergency shelter care was ordered by the trial court on September 24,

2015.

        {¶4}. An adjudication hearing took place on December 4, 2014. Both parents

stipulated to a dependency finding at that time. Temporary custody of N.S. with SCJFS

was also maintained on December 4, 2014.

        {¶5}. SCJFS filed a motion for permanent custody on February 3, 2015. The

matter proceeded to evidentiary hearings held on May 4 and May 15, 2015, regarding

both N.S. and his brother K.S. Following said proceedings, the trial court granted

permanent custody of N.S. to SCJFS, and issued separate orders regarding K.S.
Stark County, Case No. 2015 CA 00115                                                    3


       {¶6}. On June 17, 2015, appellant filed a notice of appeal.1 He herein raises the

following two Assignments of Error:

       {¶7}. “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

[OF N.S.] TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶8}. “II.    THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILD TO GRANT

PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                               I.

       {¶9}. In his First Assignment of Error, appellant-father contends the agency

failed to demonstrate proper grounds for the trial court to award permanent custody of

N.S. We disagree.2

       {¶10}. The pertinent statutory law for our present consideration is R.C.

2151.414(B)(1), which states in relevant part as follows:




1  Appellant has separately appealed the trial court's grant of legal custody of K.S., the
older brother of N.S., to paternal relatives, rendered under trial court case number
2014JVC00206.
2   The mother of N.S. did not contest permanent custody and has not appealed.
Stark County, Case No. 2015 CA 00115                                                     4


      {¶11}. "(B)(1) Except as provided in division (B)(2) of this section, the court may

grant permanent custody of a child to a movant if the court determines at the hearing

held pursuant to division (A) of this section, by clear and convincing evidence, that it is

in the best interest of the child to grant permanent custody of the child to the agency

that filed the motion for permanent custody and that any of the following apply:

      {¶12}. "(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,

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 if, 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, 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.

      {¶13}. "(b) The child is abandoned.

      {¶14}. "(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

      {¶15}. "(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
Stark County, Case No. 2015 CA 00115                                                      5


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.

       {¶16}. "(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."

       {¶17}. We note the trial court relied on R.C. 2151.414(B)(1)(a), supra, in this

matter. In its response brief, SCJFS incorrectly asserts the trial court also relied on R.C.

2151.414(B)(1)(d), sometimes termed the "twelve of twenty-two" rule. See Appellee

Brief at 9. It is well established that (B)(1)(a) and (B)(1)(d) are independently sufficient

to use as a basis to grant an agency's motion for permanent custody. See In re M.R., 3d

Dist. Defiance No. 4–12–18, 2013–Ohio–1302, ¶ 80. However, our review of the

pertinent trial court documents reveals no reliance on the "twelve of twenty-two" option,

which would have nonetheless been mathematically impossible given the very young

age of N.S. at the time of the agency's request for permanent custody.

       {¶18}. The record before us includes the following evidence as would pertain to a

"(B)(1)(a)" determination: Appellant did not significantly remedy the home condition

factors (described by a caseworker as "pretty horrible") which were of concern to the

agency during the case, including junk and automotive fluid containers on the porch,

garbage and cat food on the floor, unmaintained kitty litter bins, unsanitary bathroom

facilities, and a gaping hole in the middle of the kitchen floor (apparently patched shortly

before the trial). Tr. at 13, 16-17, 28. Appellant participated in a Goodwill Parenting

program and had scored well in the final written portions, but he received only a
Stark County, Case No. 2015 CA 00115                                                       6


certificate of attendance, with the instructor testifying that she still had "grave concerns"

about appellant's ability to parent. Tr. at 103. Appellant, who has a criminal record for

menacing and domestic violence (Tr. at 20-21), attended Melymbrosia group

counseling, but the clinical director opined that the program did not alter appellant's

thinking or sense of accountability, or result in successful treatment. Tr. at 75-77.

Michael Stranathan, a psychology assistant at NEOBH, completed a parenting

evaluation and testified without objection as an expert witness. Tr. at 41. He stated, inter

alia, that appellant has presented a history of anti-social and aggressive behaviors,

creating long-term concerns about appellant's ability to parent. See Tr. at 44-45. The

SCJFS ongoing family services worker, Wanda Pounds, observed that despite the

utilization of numerous service providers, the repeated result is unsuccessful case plan

progress and a complete lack of recommended reunification by said providers. See Tr.

at 25-27.

       {¶19}. Upon review, and in consideration of the stipulation as to the child's

mother, we hold the trial court did not err in determining, pursuant to R.C.

2151.414(B)(1)(a), that N.S. could not be placed with appellant within a reasonable time

and should not be placed with appellant.

       {¶20}. Appellant's First Assignment of Error is therefore overruled.

                                                 II.

       {¶21}. In his Second Assignment of Error, appellant contends the trial court erred

in concluding permanent custody of N.S. was in the child's best interests. We disagree.

       {¶22}. In determining the best interest of a child for purposes of a permanent

custody disposition, the trial court is required to consider all relevant factors, including,
Stark County, Case No. 2015 CA 00115                                                     7


but not limited to, the factors contained in R.C. 2151.414(D)(1). These statutory factors

are as follows:

       {¶23}. "(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;

       {¶24}. "(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;

       {¶25}. "(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;

       {¶26}. "(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;

       {¶27}. "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

       {¶28}. As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or
Stark County, Case No. 2015 CA 00115                                                    8

her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911.

Generally, a civil judgment which is supported by competent and credible evidence may

not be reversed as being against the manifest weight of the evidence. See State v.

McGill, 5th Dist. Fairfield No. 2004–CA–72, 2005–Ohio–2278, 2005 WL 1092394, ¶ 18.

A reviewing court must determine whether the finder of fact, in resolving conflicts in the

evidence, clearly lost his or her way and created such a manifest miscarriage of justice

that the judgment must be reversed and a new trial ordered. See Hunter v. Green, 5th

Dist. Coshocton No. 12–CA–2, 2012–Ohio–5801, 2012 WL 6094172, ¶ 25, citing

Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012–Ohio–2179. It is well-

established that the trial court is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. Summit No. 21004, 2002–Ohio–3405, ¶ 9,

citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

      {¶29}. Furthermore, “[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 (Nov. 13, 2000), 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073,

quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.

      {¶30}. In the case sub judice, testimony by the ongoing caseworker, Wanda

Pounds, indicated that N.S. has no medical or delay issues, and his present foster

family has expressed an interest in adoption. N.S. was not placed in the same home

with his brother, K.S., although contacts have been arranged by the foster parents.

During father/child supervised visits, appellant sometimes had to be reminded of
Stark County, Case No. 2015 CA 00115                                                   9


changing and feeding duties, and the caseworker opined that no bond exists between

appellant and the child. See Tr. II at 13-14. In regard to the option of simply extending

temporary custody for awhile, Ms. Pounds clearly stated: "[N]o positives have ever

resulted [on the case plan]. I don't see what six more months would do." Tr. at 26. The

guardian ad litem, Attorney Vernon Infantino, testified that he felt appellant had done

very little during the case and that appellant's home remained an inappropriate setting

for N.S. He recommended permanent custody in order to provide stability and

consistency for the child. See Tr. II at 23-27.

       {¶31}. Upon review of the record and the findings of fact and conclusions of law

therein, we find no basis to alter the decision of the trier of fact, and we conclude the

grant of permanent custody of N.S. was made in the consideration of the child's best

interests and did not constitute an error or an abuse of discretion.

       {¶32}. Appellant's Second Assignment of Error is therefore overruled.

       {¶33}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Stark County, Ohio, is hereby affirmed.

By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.



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