[Cite as In re J.R., 2011-Ohio-2648.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
IN THE MATTER OF:                             :   William B. Hoffman, P.J.
                                              :   Julie A. Edwards, J.
                    J.R.                      :   Patricia A. Delaney, J.
                                              :
                                              :   Case No. 11AP020006
                                              :
                                              :
                                              :   OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from Tuscarawas County
                                                   Court of Common Pleas, Juvenile
                                                   Division, Case No. 10JN00087

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            May 27, 2011

APPEARANCES:

For Appellee -                                     For Appellant –
Tuscarawas County Job &                            Charles Redman
Family Services
                                                   E. MARIE SEIBER
DAVID W. HAVERFIELD                                P.O. Box 108
389 – 16th Street, S.W.                            Dennison, Ohio 44621
New Philadelphia, Ohio 44663

Guardian ad Litem

KAREN DUMMERMUTH
349 East High Avenue
P.O. Box 494
New Philadelphia, Ohio 44663
[Cite as In re J.R., 2011-Ohio-2648.]


Edwards, J.

        {¶1}     Appellant, Charles Redman, appeals from the January 13, 2011,

Judgment Entry of the Tuscarawas County Court of Common Pleas terminating

appellant’s parental rights and granting permanent custody of J.R. to Tuscarawas

County Department of Job and Family Services.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     Appellant is the father of J.R. (DOB 11/17/94).           Appellant and J.R.’s

mother are not married.

        {¶3}     On March 8, 2010, Tuscarawas County Job and Family Services (TCJFS)

filed a complaint alleging that J.R. was a neglected and/or dependent child. The

complaint alleged that appellant and his wife, J.R.’s stepmother, had sent J.R. to stay

with her mother knowing that her mother was a drug addict who had not had any

contact or relationship with J.R. for two years and was unable to meet J.R.’s needs.

Pursuant to a Judgment Entry filed on March 9, 2010, J.R. was placed in the temporary

custody of TCJFS.

        {¶4}     On or about April 1, 2010, a case plan was filed that required appellant to

submit to random hair follicle and urine screens as requested, to complete an alcohol

and drug assessment and follow any recommendations, and to complete a

psychological and follow all recommendations. The case plan also required appellant to

complete individual parenting sessions.

        {¶5}     At an adjudicatory hearing on April 7, 2010, appellant and J.R.’s mother

stipulated to a finding that J.R. was a dependent child1 and the trial court ordered J.R. to


1
  The allegations of neglect were dismissed. The complaint was amended to allege that appellant knew
that J.R.’s mother had a history of drug addiction.
Tuscarawas County App. Case No. 11AP020006                                                    3


remain in the temporary custody of TCJFS. The trial court ordered appellant to report

for an immediate drug screen as directed by TCJFS.

       {¶6}   On October 21, 2010, TCJFS filed a Motion to Modify Prior Disposition.

TCJFS, in its motion, sought permanent custody of J.R. TCJFS noted that since J.R.’s

placement in foster care in March of 2010, appellant had not visited her. TCJFS further

alleged in its motion that appellant and his wife had tested positive for marijuana at the

outset of the case, that appellant had diluted a recent urine screen and refused to

complete a saliva drug test and that appellant had not completed the necessary drug

and alcohol evaluation. TCJFS, in its motion, further stated, in relevant part, as follows:

       {¶7}   “J.R. has remained in the same foster home since her placement in

March. She is adamant that she wishes no further contact with her family. She has

done very well in foster care, not exhibiting any of the extreme behaviors that her father

and step-mother complained about prior to her removal. Her current foster parents will

not adopt her, but their neighbors who are licensed foster parents, and with whom J.R.

has a very good relationship have indicated the desire to do so.           J.R. has clearly

expressed to the agency that she wishes this to happen.”

       {¶8}   On November 12, 2010, appellant’s counsel filed a motion to withdraw,

indicating that appellant’s wife had told him that his services were no longer needed.

The motion to withdraw was granted on or about December 9, 2010.

       {¶9}   A hearing on the Motion to Modify Prior Disposition was held on January

11, 2011. Appellant did not appear at the same. Prior to the hearing, J.R.’s mother had

stipulated to a grant of permanent custody to TCJFS.
Tuscarawas County App. Case No. 11AP020006                                            4


      {¶10} The only witness to testify at the hearing was Jaime Grunder, a

caseworker with TCJFS who was responsible for J.R.’s case. Grunder testified that J.R.

had not had contact with appellant since March 8, 2010, but that appellant had written

her a letter. When asked why appellant had not visited J.R., she testified that J.R.

wanted nothing to do with appellant. The following is an excerpt from Grunder’s

testimony:

      {¶11} “Q. Was there a Case Plan developed for him [appellant]?

      {¶12} “A. Yes.

      {¶13} “Q. Uh, did he do any of the services on the Case Plan?

      {¶14} “A. He did some of them.

      {¶15} “Q. Okay, what did he do?

      {¶16} “A. He did some parenting with Deb Whitney, because he couldn’t do it,

the other case manager, or the other family service aide, there was a conflict, and then

he, uh, completed his psychological.

      {¶17} “Q. And what was he required to do that he didn’t do?

      {¶18} “A. He would not take drug screens, whether it be hair, saliva, or urine.

Uh, he did not do a drug and alcohol assessment and he did not do an anger

assessment.

      {¶19} “Q. Okay, has he met with you regularly during the Case?

      {¶20} “A. No.

      {¶21} “Q. Did he actually move and not give you his new address at one point?

      {¶22} “A. That’s correct.” Transcript at 4-5.
Tuscarawas County App. Case No. 11AP020006                                               5


      {¶23} Grunder further testified that J.R. was doing well in her foster home and

that while she had some behavioral problems, they were “typical teenager stuff.”

Transcript at 5. She testified that a relative of J.R.’s current foster family wanted to

adopt J.R. and was in the process of finishing their foster care license. Grunder testified

that J.R. said that she wanted to be adopted by them. When asked whether she

believed that TCJFS expended reasonable efforts to reunify J.R. with appellant and

whether she believed that it would be in J.R.s best interest to be placed in the

permanent custody of TCJFS, Grunder answered affirmatively.

      {¶24} As memorialized in a Judgment Entry filed on January 13, 2011, the trial

court terminated appellant’s parental rights and granted permanent custody of J.R. to

TCJFS. The trial court, in its Judgment Entry, found that J.R. could not and should not

be placed with either parent within a reasonable time, that despite reasonable efforts

and planning to remedy the problems that caused J.R.’s removal, both appellant and

J.R.’s mother had failed continuously and repeatedly to substantially remedy the

conditions causing her removal. The trial court also found that appellant and J.R.’s

mother had demonstrated a lack of commitment to her and had failed to provide her

with an adequate home “at this time and cannot do so within a year of this litigation.”

Finally, the court found that, after considering the factors contained in R.C. 2151.414, it

was in J.R.’s best interest to be placed in the permanent custody of TCJFS.

      {¶25} Appellant now raises the following assignment of error on appeal:

      {¶26} “THE TRIAL COURT’S DECISION GRANTING PERMANENT CUSTODY

OF J.R. WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS

NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”
Tuscarawas County App. Case No. 11AP020006                                                6


                                                 I

       {¶27} Appellant, in his sole assignment of error, argues that the trial court’s

decision to grant permanent custody of J.R. to TCJFS was against the manifest weight

of the evidence.

       {¶28} In the case sub judice, appellant specifically and solely argues that while

the trial court found that appellant was given a reasonable amount of time in which to

reunify with J.R., there was not clear and convincing evidence supporting such finding.

Appellant notes that while Jaime Grunder, the caseworker, testified that a case plan

was adopted and that appellant complied with certain services and not others, she

“gave no time frame for anything. It is only known that the case plan was developed

sometime after the Complaint was filed and that actions and inactions of [appellant]

occurred sometime before the permanent custody hearing.” Based on the lack of a

timeline, appellant argues that there is not clear and convincing evidence that

reunification could not occur within a reasonable time.

       {¶29} A trial court's decision to grant permanent custody of a child must be

supported by clear and convincing evidence. The Ohio Supreme Court has defined

“clear and convincing evidence” as “[t]he 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.”

Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118; In re: Adoption of

Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613.
Tuscarawas County App. Case No. 11AP020006                                                   7


        {¶30} 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 (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60; See also, C.E.

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

court's judgment is “supported by some competent, credible evidence going to all the

essential elements of the case,” a reviewing court may not reverse that judgment.

Schiebel, 55 Ohio St.3d at 74.

        {¶31} Moreover, “an appellate court should not substitute its judgment for that of

the trial court when there exists competent and credible evidence supporting the

findings of fact and conclusion of law.” Id. 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 (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273:

        {¶32} “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.”

        {¶33} 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,

1997–Ohio–260, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No.
Tuscarawas County App. Case No. 11AP020006                                                   8

04CA1 0, 2004–Ohio–3146; In re: C. W., Montgomery App. No. 20140, 2004–Ohio–

2040.

        {¶34} R.C. 2151.414 states, in relevant part, as follows: (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:

        {¶35} “(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.”

        {¶36} Revised Code 2151.414(E) sets forth the factors a trial court must

consider in determining whether a child cannot or should not be placed with a parent

within a reasonable time. If the court finds, by clear and convincing evidence, the

existence of any one of the following factors, “the court shall enter a finding that the

child cannot be placed with [the] parent within a reasonable time or should not be

placed with either parent”:
Tuscarawas County App. Case No. 11AP020006                                              9


        {¶37} “(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 parent to remedy the problem that initially caused the child to be placed outside the

home, the parents have failed continuously and repeatedly to substantially remedy the

conditions that caused the child to be placed outside the child's home. In determining

whether the parents have substantially remedied the 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;* * * ...

        {¶38} As is stated above, the permanent custody hearing was held on January

11, 2011. Appellant, whose wife had fired his attorney, did not appear at the same.

Following such hearing, the trial court found that J.R. could not be placed with appellant

within a reasonable time. The trial court found that, following the placement of J.R.

outside the child's home and notwithstanding reasonable case planning and diligent

efforts by the agency to assist the parent to remedy the problem that initially caused the

child to be placed outside the home, appellant failed continuously and repeatedly to

substantially remedy the conditions that caused J.R. to be placed outside the child's

home.

        {¶39} We find that such findings are supported by the record. A case plan was

filed in this case on or about April 1, 2010, shortly after the complaint was filed.

Testimony was adduced that appellant failed to comply with the same by failing to

complete drug screens and failing to complete anger, drug and alcohol assessments.
Tuscarawas County App. Case No. 11AP020006                                               10


Grunder, the case worker, testified that appellant did not meet with her regularly and

moved without providing her with his new address.

       {¶40} Based on the forgoing, we find that the trial court did not err in finding that

appellant had failed continuously and repeatedly to substantially remedy the conditions

causing J.R. to be placed outside the home and that J.R. could not and should not be

placed in appellant's home within a reasonable time. We note that appellant does not

challenge the trial court’s finding that it was in J.R.’s best interest to be placed in the

permanent custody of TCJFS.

       {¶41} Appellant’s sole assignment of error is, therefore, overruled.

       {¶42} Accordingly the judgment of the Tuscarawas County Court of Common

Pleas, Juvenile Division, is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Delaney, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/d0503
Tuscarawas County App. Case No. 11AP020006   11
[Cite as In re J.R., 2011-Ohio-2648.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
                    J.R.                       :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 11AP020006




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is

affirmed. Costs assessed to appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
