[Cite as In re D.P. , 2012-Ohio-3478.]




                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               ATHENS COUNTY

IN THE MATTER OF:              :
                               :
D.P., K.T., and S.P.,          : Case No. 11CA30 & 31
                               :
                               : Released: July 24, 2012
                               :
Adjudicated Dependent          : DECISION AND JUDGMENT
Children.                      : ENTRY
_____________________________________________________________

                                         APPEARANCES:

Kenneth E. Ryan, Eslocker & Oremus Co., L.P.A., Athens, Ohio, for
Appellant-Mother, Sarah Perkins.

Richard H. Hedges, Athens, Ohio, for Appellant-Father, Lamar
Quartermaine, Jr.1

Keller J. Blackburn, Athens County Prosecuting Attorney, and Sabrina J.
Ennis, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for
Plaintiff-Appellee, Athens County Children’s Services.
_____________________________________________________________

McFarland, J.

         {¶1} Appellant-Mother, Sarah Perkins, and Appellant-Father, Lamar

Quartermaine, Jr., appeal from the Juvenile Division of the Athens County


1
  Lamar Quartermaine is the father of D.P. only. The father of K.T., Matthew Thomas, has not appealed
the termination of his parental rights and responsibilities. The father of S.P. is unknown. The children,
who were appointed counsel below, have not appealed the termination of their parents’ rights and
responsibilities.
Athens App. Nos. 11CA30 & 11CA31                                                2


Common Pleas Court's decision and judgment entry terminating their

parental rights and responsibilities and placing D.P., K.T., and S.P. in the

permanent custody of Athens County Children's Services, (hereinafter

“ACCS”). Appellant-Mother, (hereinafter “Perkins”) raises a single

assignment of error, contending that ACCS failed to prove by clear and

convincing evidence that permanent custody was in the children’s best

interests and that the children cannot be reunified with their mother.

Appellant-Father, (hereinafter “Quartermaine”), raises two assignments of

error, contending that 1) the trial court committed reversible error by

accepting an agreed dependency adjudication from the biological father

despite the fact that father had not had the benefit of legal counsel; and 2)

the court committed reversible error by granting permanent custody of the

child [D.P.] to ACCS despite progress by the father and the absence of clear

and convincing evidence that father could not assist the child at least equally

as foster placement in view of the child’s behavioral difficulties.

      {¶2} Because we fail to find merit in any of Appellants’ assigned

errors, and because we find that the trial court’s determination that a grant of

permanent custody was in the best interests of the child is supported by

competent credible evidence, we affirm the decision of the trial court.
Athens App. Nos. 11CA30 & 11CA31                                                 3


                                   FACTS

      {¶3} Perkins and Quartermaine share one child, D.P. Perkins is also

mother to K.T., whose father is Matthew Thomas, and S.P., whose father is

unknown. Perkins, during a time when she was living alone, without

Quartermaine, initiated voluntary services with ACCS. After receiving

services for about six months, all three children were removed from Perkins’

care, were placed in the temporary custody of ACCS, and were placed in

foster care. Perkins stipulated to the dependency of the children at a hearing

on January 5, 2010. Although Quartermaine received the requisite notice, he

failed to appear at the hearing. At that time, a case plan was put into place

as between the children and Perkins, and it was noted on the record that if

the fathers of the children wished to participate in the case plan, they would

need to contact ACCS. On February 8, 2010, the trial court filed a judgment

entry adjudicating all of the children dependent and awarding temporary

custody of the children to ACCS. Quartermaine did not appeal from this

determination.

      {¶4} At some point, Quartermaine moved back in with Perkins and

was added to the case plan. Although Matthew Thomas was added to the

case plan, his participation eventually ceased and he was removed.

Although numerous services were provided in the form of therapies,
Athens App. Nos. 11CA30 & 11CA31                                               4


mentoring and supervised visitation, Quartermaine and Perkins were never

able to progress to unsupervised visits with the children. This was in part

due to the parties’ numerous mental health diagnoses, coupled with the

children’s severe behavioral problems. Another barrier that remained was

Perkins’ and Quartermaine’s apparent inability to safely supervise all three

children at one time. The record reveals that Perkins suffers from major

depression, post traumatic stress disorder, borderline personality disorder,

and has been convicted of several felonies, both prior to and during her

involvement with ACCS. Quartermaine suffers from major depressive

disorder, anxiety, impulse control disorder, avoidance disorder and anger.

Likewise, the children suffer from severe behavioral issues, and D.P. and

K.T., in particular, exhibit sexually reactive behavior which indicates they

have been the victim of sexual abuse.

      {¶5} Despite the provision of numerous services by and through

ACCS, including therapy, counseling, parent mentoring and supervised

visitation, as indicated through our review of the numerous case plans and

case plan amendments, as well as review hearing transcripts, ACCS filed a

motion to modify the disposition to permanent custody on July 25, 2011.

Hearings on the permanent custody motion were held on October 31 and

November 1, 2011. As part of the permanent custody hearing, the trial court
Athens App. Nos. 11CA30 & 11CA31                                              5


considered the report of the guardian ad litem, which supported an award of

permanent custody of the children to ACCS. The trial court entered a

decision with findings of fact and conclusions of law on November 16,

2011. That entry terminated Perkins’ and Quartermaine’s rights with respect

to the children, and granted ACCS’s motion for permanent custody. It is

from this decision that Perkins and Quartermaine now bring their timely

appeals, which we have consolidated, assigning the following errors for our

review.

                 PERKINS’ ASSIGNMENT OF ERROR

"I.   ATHENS COUNTY CHILDREN SERVICES FAILED TO PROVE
      BY CLEAR AND CONVINCING EVIDENCE THAT
      PERMANENT CUSTODY WAS IN THE CHILDREN’S BEST
      INTEREST AND THAT THE CHILDREN CANNOT BE
      REUNIFIED WITH THEIR MOTHER.”

           QUARTERMAINE’S ASSIGNMENTS OF ERROR

“I.   THE COURT COMMITTED REVERSIBLE ERROR BY
      ACCEPTING AN AGREED DEPENDENCY ADJUDICATION
      FROM THE BIOLOGICAL FATHER DESPITE THE FACT THAT
      FATHER HAD NOT HAD THE BENEFIT OF LEGAL COUNSEL.

II.   THE COURT COMMITTED REVERSIBLE ERROR BY
      GRANTING PERMANENT CUSTODY OF THE CHILD TO THE
      ATHENS COUNTY CHILDREN’S SERVICES AGENCY (ACCS)
      DESPITE PROGRESS BY THE FATHER AND THE ABSENCE OF
      CLEAR AND CONVINCING EVIDENCE THAT FATHER COULD
      NOT ASSIST THE CHILD AT LEAST EQUALLY AS FOSTER
      PLACEMENT IN VIEW OF THE CHILD’S BEHAVIORAL
      DIFFICULTIES.”
Athens App. Nos. 11CA30 & 11CA31                                              6


        QUARTERMAINE’S FIRST ASSIGNMENT OF ERROR

      {¶6} We address Quartermaine’s first assignment of error out of order

for ease of analysis. In his first assignment of error, Quartermaine argues

that the trial court erred when it entered the agreed adjudication of

dependency, even though Quartermaine was not represented by counsel at

the January 5, 2010, dependency hearing. The record indicates that

Quartermaine had notice of the January 5, 2010 hearing, but he did not

attend. The trial court appointed counsel for Quartermaine on January 7,

2010. On February 8, 2010, the trial court filed a judgment entry (1) that

adjudicated all of the children in this case as dependent and (2) that awarded

temporary custody of the children to Athens County Children’s Services.

Consequently, the February 8, 2010, entry was a final appealable order. See

In re A.S., 8th Dist. No. 94098 & 94104, 2010-Ohio-1441, ¶ 18; In re H.F.,

120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 9.

      {¶7} Quartermaine could have raised the argument from his first

assignment of error in an appeal from the February 8, 2010, entry.

Quartermaine, however, did not appeal the February 8, 2010, entry. As a

result, Quartermaine’s argument in his first assignment of error is untimely.

See In re Lander, 12th Dist. No. CA 99-05-096, 2000 WL 819775, *1 (June

26, 2000) (“Appellant never appealed the juvenile court’s May 16, 1997
Athens App. Nos. 11CA30 & 11CA31                                               7


judgment entry. Having failed to timely appeal, appellant cannot raise in

this appeal the issue of the dependency adjudication or the issue of

appointment of counsel for her at the adjudicatory hearing.”). Accordingly,

Quartermaine’s first assignment of error is overruled.

                   REMAINING ASSIGNMENTS OF ERROR

      {¶8} We address Quartermaine’s second and Perkins’ sole assignment

of error in conjunction with one another as they both essentially contend that

the trial court erred in granting permanent custody of the children to ACCS.

Accordingly, we set forth the standard of review and applicable principles in

considering these arguments as follows.

                         STANDARD OF REVIEW

      {¶9} Generally, an appellate court will not reverse a trial court's

permanent custody decision if some competent and credible evidence

supports the judgment. In re Perry, 4th Dist. Nos. 06CA648 and 06CA649,

2006-Ohio-6128, at ¶ 40, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564

N.E.2d 54 (1990). Thus, our review of a trial court's permanent custody

decision is deferential. See In re Hilyard, 4th Dist. Nos. 05CA600, 05CA601,

05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608, 05CA609,

2006-Ohio-1965, at ¶ 17. Moreover, “an appellate court should not

substitute its judgment for that of the trial court when there exists competent
Athens App. Nos. 11CA30 & 11CA31                                                 8


and credible evidence supporting the findings of fact and conclusion of law.”

Schiebel at 74. 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.”

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. No. 04CA10, 2004-Ohio-3146.

        STANDARD FOR GRANTING PERMANENT CUSTODY

      {¶10} A trial court may not grant a permanent custody motion absent

clear and convincing evidence to support the judgment. The Ohio Supreme

Court defined “clear and convincing evidence” as:
Athens App. Nos. 11CA30 & 11CA31                                                9


       “The 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. It does not mean clear and unequivocal.” In re Estate of

       Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986); see,

       also, Schiebel at 74.

In reviewing whether a 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.” Schiebel at 74.

                   PERMANENT CUSTODY PRINCIPLES

       {¶11} A parent has a “fundamental liberty interest” in the care,

custody, and management of his or her child and an “essential” and “basic

civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745,

753, 102 S.Ct. 1388 (1982); In re Murray, 52 Ohio St.3d 155, 157, 556

N.E.2d 1169 (1990); see, also, In re D.A., 113 Ohio St.3d 88, 2007-Ohio-

1105, 862 N.E.2d 829. A parent's rights, however, are not absolute. See D.A.

at ¶ 11. Rather, “ ‘it is plain that the natural rights of a parent * * * are
Athens App. Nos. 11CA30 & 11CA31                                              10


always subject to the ultimate welfare of the child, which is the pole star or

controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St.2d

100, 106, 391 N.E.2d 1034 (1979) (quoting In re R.J.C. (Fla.App.1974), 300

So.2d 54, 58). Thus, the state may terminate parental rights when a child's

best interest demands such termination. D.A . at ¶ 11.

      {¶12} Before a court may award a children services agency

permanent custody of a child, R.C. 2151.414(A)(1) requires the court to hold

a hearing. The primary purpose of the hearing is to allow the court to

determine whether the child's best interests would be served by permanently

terminating the parental relationship and by awarding permanent custody to

the agency. See R.C. 2151.414(A)(1). Additionally, when considering

whether to grant a children services agency permanent custody, a trial court

should consider the underlying principles of R.C. Chapter 2151:

      “(A) To provide for the care, protection, and mental and

      physical development of children * * *;

      ***

      (B) To achieve the foregoing purpose[ ], whenever possible, in

      a family environment, separating the child from its parents only

      when necessary for his welfare or in the interests of public

      safety.”
Athens App. Nos. 11CA30 & 11CA31                                               11


                PERMANENT CUSTODY FRAMEWORK

      {¶13} R.C. 2151.414(B)(1) permits a trial court to grant permanent

custody of a child to a children services agency if the court determines, by

clear and convincing evidence, that the child's best interest would be served

by the award of permanent custody and that:

      “(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.

      (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.
Athens App. Nos. 11CA30 & 11CA31                                               12


      (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 section 2151.413 of the Revised Code, the

      child was previously in the temporary custody of an equivalent

      agency in another state.”

Thus, before a trial court may award a children services agency permanent

custody, it must find: (1) that one of the circumstances described in R.C.

2151.414(B)(1) applies; and (2) that awarding the children services agency

permanent custody would further the child's best interests.

      {¶14} Pursuant to the plain language of R.C. 2151.414(B)(1)(d), when

a child has been in a children services agency's temporary custody for twelve

or more months of a consecutive twenty-two month period, a trial court need

not find that the child cannot or should not be placed with either parent

within a reasonable time. See, e.g., In re T.F., 4th Dist. No. 07CA34, 2008-

Ohio-1238, at ¶ 23; In re Williams, 10th Dist. No. 02AP-924, 2002-Ohio-
Athens App. Nos. 11CA30 & 11CA31                                               13


7205; In re Dyal (Aug. 9, 2001), 4th Dist. No. 01CA11, 2001 WL 925379.

Consequently, when considering a R.C. 2151 .414(B)(1)(d) permanent

custody motion, the only other consideration becomes the child's best

interests. A trial court need not conduct an R.C. 2151.414(B)(1)(a) analysis

of whether the child cannot or should not be placed with either parent within

a reasonable time. Dyal; see, also, In re Berkley, 4th Dist. Nos. 04CA12,

04CA13, and 04CA14, 2004-Ohio-4797, at ¶ 61.

                              BEST INTERESTS

      {¶15} R.C. 2151.414(D) requires a trial court to consider specific

factors to determine whether a child's best interests will be served by

granting a children services agency permanent custody. The factors include:

(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;

(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; and (5) whether any factors listed under R.C. 2151.414(E)(7)

to (11) apply.
Athens App. Nos. 11CA30 & 11CA31                                           14


      R.C. 2151.414(E)(7) to (11) provide as follows:

      “(7) The parent has been convicted of or pleaded guilty to one

      of the following:

      (a) An offense under section 2903.01, 2903.02, or 2903.03 of

      the Revised Code or under an existing or former law of this

      state, any other state, or the United States that is substantially

      equivalent to an offense described in those sections and the

      victim of the offense was a sibling of the child or the victim

      was another child who lived in the parent's household at the

      time of the offense;

      (b) An offense under section 2903.11, 2903.12, or 2903.13 of

      the Revised Code or under an existing or former law of this

      state, any other state, or the United States that is substantially

      equivalent to an offense described in those sections and the

      victim of the offense is the child, a sibling of the child, or

      another child who lived in the parent's household at the time of

      the offense;

      (c) An offense under division (B)(2) of section 2919.22 of the

      Revised Code or under an existing or former law of this state,

      any other state, or the United States that is substantially
Athens App. Nos. 11CA30 & 11CA31                                            15


      equivalent to the offense described in that section and the child,

      a sibling of the child, or another child who lived in the parent's

      household at the time of the offense is the victim of the offense;

      (d) An offense under section 2907.02, 2907.03, 2907.04,

      2907.05, or 2907.06 of the Revised Code or under an existing

      or former law of this state, any other state, or the United States

      requiring treatment of the parent was journalized as part of a

      dispositional order issued with respect to the child or an order

      was issued by any other court requiring treatment of the parent.

      (e) A conspiracy or attempt to commit, or complicity in

      committing, an offense described in division (E)(7)(a) or (d) of

      this section.

      (8) The parent has repeatedly withheld medical treatment or

      food from the child when the parent has the means to provide

      the treatment or food, and, in the case of withheld medical

      treatment, the parent withheld it for a purpose other than to treat

      the physical or mental illness or defect of the child by spiritual

      means through prayer alone in accordance with the tenets of a

      recognized religious body.
Athens App. Nos. 11CA30 & 11CA31                                           16


      (9) The parent has placed the child at substantial risk of harm

      two or more times due to alcohol or drug abuse and has rejected

      treatment two or more times or refused to participate in further

      treatment two or more times after a case plan issued pursuant to

      section 2151.412 of the Revised Code requiring treatment of

      the parent was journalized as part of dispositional order issued

      with respect to the child or an order was issued by any other

      court requiring treatment of the parent.

      (10) The parent has abandoned the child.

      (11) The parent has had parental rights involuntarily terminated

      with respect to a sibling of the child pursuant to this section or

      section 2151.353 or 2151.415 of the Revised Code, or under an

      existing or former law of this state, any other state, or the

      United States that is substantially equivalent to those sections,

      and the parent has failed to provide clear and convincing

      evidence to prove that, notwithstanding the prior termination,

      the parent can provide a legally secure permanent placement

      and adequate care for the health, welfare, and safety of the

      child.”
Athens App. Nos. 11CA30 & 11CA31                                                17


      {¶16} In the case at bar, we do not believe that the trial court erred

when it applied the best interest factors and determined that they support

awarding ACCS permanent custody of the children. As the court's decision

notes, the children’s’ interactions and interrelationships are complex and

generally unhealthy, and mental health issues are significant barriers to

reunification. D.P. is in his fifth foster home and requires a high level of

supervision, and Perkin’s relatives are alleged to have sexually abused the

children. According to the guardian ad litem, the children’s wishes are not

reliably ascertainable; however, the trial court considered the report of the

guardian ad litem, which recommended a grant of permanent custody to

ACCS. With respect to custodial history, all three children were removed

from the home on December 1, 2009, and have remained in foster care since

that time. The trial court further found that the children need and deserve a

legally secure placement and that D.P. presents a particular challenge due to

his safety issues, which may require him to be separated from his siblings.

Additionally, both K.T. and S.P. were abandoned by their fathers.

      {¶17} Further, and of importance, the trial court found that the

children had been in the temporary custody of ACCS for twelve of twenty-

two consecutive months and that ACCS had established reasonable efforts at

reunification. The court explained in its decision that although counsel for
Athens App. Nos. 11CA30 & 11CA31                                               18


the parents argued that substantial compliance with the case plan was

demonstrated, in the court’s view, the issues that caused removal and have

since prevented return still remain substantial. Ultimately, the trial court

stated that the parents have not and may not be able to remedy the issues that

led to removal initially.

      {¶18} Based upon these findings, which are supported by clear and

convincing evidence contained in the record, the trial court determined that

an award of permanent custody to ACCS was in the children’s best interests.

In light of the foregoing, after a thorough review of the record, we conclude

that the trial court did not err by awarding ACCS permanent custody. Thus,

Quartermaine’s second and Perkins’ sole assignment of error are overruled.

Accordingly, the decision of the trial court is affirmed.

                                              JUDGMENT AFFIRMED
Athens App. Nos. 11CA30 & 11CA31                                               19


                           JUDGMENT ENTRY


     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellants costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, J. and Kline, J.: Concur in Judgment and Opinion.


                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge



                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
