[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
