[Cite as In re K.R., 2016-Ohio-487.]


                                           COURT OF APPEALS
                                          STARK COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


 IN THE MATTER OF:                                 :   JUDGES:
 K.R.                                              :
                                                   :   Hon. William B. Hoffman, P.J.
                                                   :   Hon. Patricia A. Delaney, J.
                                                   :   Hon. Craig R. Baldwin, J.
                                                   :
                                                   :   Case No. 2015CA00166
                                                   :
                                                   :
                                                   :
                                                   :
                                                   :   OPINION


CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Family Court Division,
                                                       Case No. 2014 JCV 00543



JUDGMENT:                                              AFFIRMED




DATE OF JUDGMENT ENTRY:                                February 9, 2016




APPEARANCES:

 For Plaintiff-Appellee:                               For Defendant-Appellant:

 STARK COUNTY JFS                                      AARON KOVALCHIK
 BRANDON J. WALTENBAUGH                                116 Cleveland Ave. NW, Ste. 808
 300 Market Ave. North                                 Canton, OH 44702
 Canton, OH 44702
Stark County, Case No. 2015CA00166                                                        2

Delaney, J.

       {¶1} Defendant-appellant Paul Reed (“Father”) appeals from the August 12,

2015 Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,

terminating his parental rights with respect to his minor child, K.R. (d.o.b. 6/3/2014).

Appellee is the Stark County Department of Jobs and Family Services (the Agency).

       {¶2} This case is related to In the Matter of K.R. Minor Child, 5th Dist. Stark No.

2015CA00162. Both cases arise from the same facts, come to us on the expedited

calendar, and shall be considered in compliance with App. R. 11.2(C).

                          FACTS AND PROCEDURAL HISTORY

       {¶1} Mother and Father have one child together, K.R. Father is presently serving

a prison term of 15 years to life upon a conviction of murder, a crime he is accused of

committing with Mother. The victim of the murder is the father of Mother’s older children.

Mother is also incarcerated but still awaiting trial.

       {¶2} Mother has eight children and has an extensive history with the Agency

prior to K.R.’s birth; K.R. is her youngest child. Mother has been convicted of contributing

to the delinquency of a minor because two teenage children did not attend school for five

years; she did not seek appropriate medical or dental care for the children which led to

significant health issues; she failed to apply for benefits that would have contributed to

the children’s welfare because she was unable to provide an address, being frequently

homeless; and police became involved when a home the family lived in was found to be

in deplorable condition. On that occasion, police found the children hiding under a porch.

At different times throughout the Agency’s involvement with Mother, workers have been

unable to locate her.
Stark County, Case No. 2015CA00166                                                     3


       {¶3} Two of Mother’s older children were placed in the Agency’s permanent

custody in Stark County Court of Common Pleas, Family Court Division case number

2013JCV00949. Legal custody of three children was granted to a relative, and cases for

two remaining children were still pending at the time of the permanent custody hearing in

the instant case.

       {¶4} Father and Mother’s only child together is K.R.        Father has no prior

involvement with the Agency; his case plan was sent to the Summit County Jail where he

was already incarcerated when the Agency opened its case with K.R. The Agency’s

concerns with Father (in addition to his imprisonment for murder) include assessment of

his parenting, competency, and cognitive abilities.

       {¶5} Domestic violence is also an issue for both Mother and Father.

       {¶6} At the time of the evidentiary hearing, Mother had not had contact with K.R.

since her birth, or over 90 days before. Father was also incarcerated upon K.R.’s birth

and has never met K.R. Mother and Father have no-contact orders with K.R.

       {¶7} During her involvement with the Agency in connection with her other

children, Mother has successfully completed portions of case plans in the past, including

obtaining a mental health assessment from Northeastern Ohio Behavioral Health;

attending domestic violence counseling at Renew; and completing a drug and alcohol

assessment with no findings.      Shortly before her arrest for murder, Mother made

arrangements to attend parenting classes in Summit County, but was arrested before she

could complete any substantial portion of the classes.

       {¶8} Father has not made any progress on his case plan.
Stark County, Case No. 2015CA00166                                                       4


       {¶9} The Agency caseworker testified K.R. cannot be placed with Mother or

Father in a reasonable period of time. Father is already serving his prison term, and even

if Mother is not convicted in the criminal case and is released from jail, she could not

complete case plan services in a reasonable period of time to establish she is able to care

for K.R. Mother is in need of comprehensive mental health treatment, a psychiatric

consultation, counseling through Renew, and parenting classes. A psychologist testified

Mother is in need of intensive mental health treatment of at least a year and a half to

address her preoccupation with her own needs over those of her children and her

paranoid personality disorder.

       {¶10} Neither parent took any steps to reduce risks posed to K.R.

       {¶11} K.R. is a happy and healthy 14-month-old with no developmental or medical

issues. She is presently placed with a foster family; five of her half-siblings are in

placement with a relative and two are in foster care. The half-siblings do have contact

with each other and visit together regularly for birthdays and holidays.

       {¶12} K.R. has been with the same foster family since she was discharged from

the hospital after birth. She is doted upon by her foster parents and by two other children

in the home. She has toys of her own and is closely bonded with the foster family. She

has community and church support and attends daycare several times a week. K.R.’s

foster family wants to adopt her and is committed to maintaining K.R.’s relationships with

her half-siblings and other relatives.

       {¶13} The Agency investigated relatives for placement with no positive results.

The caseworker testified she recently learned of additional persons who might be
Stark County, Case No. 2015CA00166                                                      5


interested in placement which would require additional time for investigation and home

studies.

                              Permanent Custody Proceedings

       {¶14} Immediately after K.R.’s birth, the Agency filed a complaint alleging

dependency and an emergency shelter care hearing was held on June 5, 2014. The trial

court awarded emergency temporary custody of K.R. to the Agency and re-affirmed

orders for the parents to complete parenting evaluations and to follow all

recommendations.

       {¶15} K.R. was found to be dependent on August 14, 2014 and placed in the

temporary custody of the Agency. The trial court approved and adopted a case plan and

found the Agency made reasonable efforts to prevent the need for continued removal of

the child from the home.

       {¶16} The case was reviewed on November 21, 2014 and the trial court approved

and adopted the case plan review packet, found compelling reasons existed to preclude

filing for permanent custody, found the Agency made reasonable efforts to prevent the

need for continued removal of the child from the home, and maintained the status quo.

       {¶17} The Agency filed a motion seeking permanent custody of K.R. on April 30,

2015, alleging K.R. could not be placed with Mother or Father within a reasonable time;

the child was abandoned; and permanent custody is in her best interest. The trial court

reviewed the case on May 1, 2015, approved and adopted the case plan review packet,

found the Agency made reasonable efforts in finalizing the permanency plan in effect,

and found no compelling reasons existed to preclude a request for permanent custody.

       {¶18} The matter proceeded to evidentiary hearing on August 4, 2015.
Stark County, Case No. 2015CA00166                                                    6


      {¶19} On August 12, 2015 the trial court issued its findings of fact granting

permanent custody of K.R. to the Agency and terminating the parental rights of Mother

and Father.

      {¶20} Father now appeals from the decision of the trial court.

      {¶21} Father raises three assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶22} “I. [FATHER] WAS DENIED DUE PROCESS WHEN THE TRIAL COURT

DID NOT GRANT HIS MOTION FOR A CONTINUANCE.”

      {¶23} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT AND SHOULD NOT BE PLACED WITH [FATHER] AT THIS TIME OR WITHIN

A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

      {¶24} “III.   THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF

PERMANENT       CUSTODY       WAS     AGAINST     THE    MANIFEST      WEIGHT      AND

SUFFICIENCY OF THE EVIDENCE.”

                                      ANALYSIS

                                           I.

      {¶25} In his first assignment of error, Father argues the trial court should have

granted his continuance of the permanent custody case to permit further investigation of

kinship placement. We disagree.

      {¶26} The grant or denial of a continuance is a matter entrusted to the broad,

sound discretion of the trial court. In re Bailey Children, 5th Dist. Stark No. 2004 CA
Stark County, Case No. 2015CA00166                                                        7

00386, 2005-Ohio-2981, ¶ 15, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078

(1981). In order to find an abuse of discretion, we must determine that the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶27} Father requested a continuance of the permanent custody proceedings so

that additional home studies could be completed on people whose names were provided

to the caseworker within a week of the trial. The trial court noted even if the motion for

permanent custody was granted, those interested parties could still request a home study

and seek placement and adoption of K.R. Father further argues a continuance would

have permitted him time to work on case plan services if and when his murder conviction

was overturned on appeal.       Further delay of the case would cause inconvenience

because K.R. is 14 months old and has spent her entire life in foster care. Delaying the

case based upon the remote possibility of Father’s release from prison under these

circumstances would only create more unwarranted instability in her life. See, In re

Hickman, 5th Dist. Holmes No. 06 CA 7, 2006-Ohio-2867, ¶ 13.

       {¶28} We find the trial court did not abuse its discretion in denying Father’s motion

to continue. Father’s first assignment of error is overruled.

                                              II., III.

       {¶29} Father’s second and third assignments of error are related and will be

considered together. Father argues the trial court erred in finding K.R. cannot be placed

with him within a reasonable period of time and its decision to grant permanent custody

to the Agency is not supported by clear and convincing evidence. We disagree.
Stark County, Case No. 2015CA00166                                                         8

       {¶30} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). 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, 120 N.E.2d 118 (1954). “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.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all

the essential elements of the case supports the trial court's judgment, an appellate court

must affirm the judgment and not substitute its judgment for that of the trial court. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶31} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence 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).

       {¶32} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency.
Stark County, Case No. 2015CA00166                                                           9


        {¶33} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply: (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; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

        {¶34} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, a trial court

will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

        {¶35} In this case, the trial court found Father was convicted of murder and

sentenced to a prison term of 15 years to life, and will not be available to care for K.R.

within the next 18 months even if his appeal is successful in the criminal case. Due to his

arrest, conviction, and imprisonment, Father has never met K.R. and has made no

progress on his case plan. If the trial court determines, by clear and convincing evidence,

a parent is incarcerated at the time of the filing of the motion for permanent custody and

will not be available to care for the child for at least eighteen months, the court shall enter
Stark County, Case No. 2015CA00166                                                       10


a finding that the child cannot be placed with the parent within a reasonable time. See

R.C. 2151.414(E)(12). Our review of the record supports the trial court's decision that

K.R. cannot be placed with Father within a reasonable time.

       {¶36} We next turn to the issue of best interest. We have frequently noted, “[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, 5th Dist. No.2000CA00244, 2000 WL

1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424

(8th Dist.1994). The trial court determined it was in the best interest of K.R. to be placed

in the Agency's permanent custody and we agree.

       {¶37} K.R. has been with the same foster family since birth; the foster home is

appropriate and the parents and children in the home dote on K.R. They want to adopt

and are very bonded with K.R. Although she is not placed with her half-siblings, the foster

family is committed to maintaining and continuing her relationships with her family.

       {¶38} Proposed relative and kinship placements have not worked out. Father

argues the Agency should have further investigated Sonia Frazier for kinship placement,

but the record reveals only that Ms. Frazier filed a motion for legal custody and a motion

to intervene and both were overruled.

       {¶39} There is no bond between K.R. and either Mother or Father and there have

been no visits. The trial court found the harm of breaking this nonexistent bond is far

outweighed by the benefit of permanency and stability in K.R.’s life and we agree. Clear
Stark County, Case No. 2015CA00166                                                      11


and convincing evidence supports the trial court's conclusion that it is in K.R.'s best

interest to grant permanent custody to the Agency.

       {¶40} Upon our review of the record in light of the pertinent statutory factors, we

find the record contains clear and convincing evidence which supports the trial court's

determination. The trial court did not err when it determined K.R. could not be placed with

Father in a reasonable time. The granting of permanent custody of K.R. to the Agency

was made in consideration of the child's best interests and was not an abuse of discretion.

       {¶41} Father’s second and third assignments of error are overruled.




                                     CONCLUSION

       {¶42} Father’s three assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas, Family Court Division is affirmed.

By: Delaney, J. and
Stark County, Case No. 2015CA00166   12


Hoffman, P.J.

Baldwin, J., concur.
