[Cite as In re S.B., 2013-Ohio-5870.]
                             STATE OF OHIO, HARRISON COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


IN THE MATTER OF:                             )
S.B.                                          )   CASE NO. 13 HA 3
DOB 1-5-03                                    )
A DEPENDENT CHILD.                            )         OPINION
                                              )


IN THE MATTER OF:                             )
K.B.                                          )   CASE NO. 13 HA 4
DOB 6-23-01                                   )
A DEPENDENT CHILD.                            )         OPINION
                                              )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from Harrison County
                                                  Common Pleas Court,
                                                  Case Nos. 20123002 and 20123001.

JUDGMENT:                                         Reversed and Remanded.

APPEARANCES:
For Appellant:                                    Attorney Jason Jackson
                                                  P.O. Box 308
                                                  Uhrichsville, OH 44638
                                                  For Steven Buckey

For Appellee:                                     Attorney Jeffrey Kiggans
                                                  Attorney David Haverfield
                                                  389 16th Street, SW
                                                  New Philadelphia, OH 44663
                                                  For Harrison County Job &
                                                  Family Services

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                  Dated: December 16, 2013
[Cite as In re S.B., 2013-Ohio-5870.]
DeGenaro, P.J.
        {¶1}     Appellant-Father, Steven Buckey, appeals the decision of the Harrison
County Court of Common Pleas, Juvenile Division, terminating his parental rights to S.B.
and K.B., his minor children. On appeal, Steven argues that Harrison County Job and
Family Services failed to use reasonable or good faith efforts to reunite him with his
children and the juvenile court's decision to terminate his parental rights is against the
manifest weight of the evidence. For the reasons discussed below, the judgment
terminating Steven's parental rights to his minor children is reversed. The juvenile court's
decision is against the manifest weight of the evidence because the Agency failed to
present evidence regarding whether the children should not be placed with Steven.
Accordingly, this cause is reversed and remanded for a new trial.
                                   Facts and Procedural History
        {¶2}     On January 5, 2012, a complaint of neglect, dependency, and custody was
filed by the Harrison County Job and Family Services (HCJFS) related to S.B. (D.O.B
1/5/2003) and K.B. (D.O.B. 6/23/2001) in the Harrison County Juvenile Court. The
complaint was based upon the following facts: The mother of the children, Rebecca
Buckey Miller failed to pick up the children from school on January 3, 2012, and was
unable to be located, which led HCJFS to take custody of both children. Rebecca
admitted she failed to pick up the children because she had been using cocaine. On
January 4, 2012, a home visit was conducted which revealed messy conditions and
numerous safety concerns. The children reported that their mother had not been
preparing food for them or cleaning, which led to K.B. taking on motherly roles. The
complaint also cited previous reports that K.B. had been sexually abused by an elderly
family member and that K.B. had been sexually inappropriate with S.B. Further, Rebecca
had been involved with HCJFS and Jefferson County Children Services in the past
regarding alleged drug use and instability.
        {¶3}     Regarding father, Steven Buckey, the complaint stated that he was then
incarcerated at Trumbull Correctional Institution for aggravated robbery and aggravated
burglary with a scheduled release date of December 5, 2013.
        {¶4}     The same day a hearing was held regarding the removal of the children in
                                                                                          -2-


the Harrison County Juvenile Court at which Rebecca appeared. She was informed of
her rights, and stipulated to the temporary custody of the minor children to HCJFS. The
juvenile court noted that Steven was incarcerated and ordered HCJFS temporary custody
of both children.
       {¶5}     Steven's first response to the proceeding was a notarized letter filed with the
court on January 26, 2012, requesting that Barbra Joe Ann Dillinger take temporary
custody of his children until he was released from prison.
       {¶6}     On January 27, 2012, an adjudicatory hearing was held. Steven remained
incarcerated and Rebecca appeared with counsel. She stipulated to both children being
adjudicated neglected and dependent. Per her consent, the case proceeded immediately
to disposition. The juvenile court adjudicated both children neglected and dependent
pursuant to R.C. 2151.04(C) and temporary custody was continued with HCJFS.
Rebecca continued to test positive for drugs as of August 2012 and Steven remained
incarcerated.
       {¶7}     On November 15, 2012, a motion to modify disposition was filed by HCJFS
seeking permanent custody because neither K.B. nor S.B. could be placed with their
mother or father within a reasonable time under R.C.2151.414(B)(1)(a) and that same
was in the best interests of the children.
       {¶8}     In an apparent response to HCJFS's permanent custody motion, on
December 5, 2012, Steven filed a 'motion for judicial notice' and attached a 'declaration of
specificity.' In the declaration, he assigned his parental rights over S.B. and K.B. to his
mother, his sister and his ex-wife "jointly and severally" until he was released from prison
on November 27, 2013.
       {¶9}     On December 13, 2012, a pre-trial was held on HCJFS's motion to modify
disposition. The juvenile court denied Steven's motion, but without a request to do so,
appointed Steven counsel. The children remained in the temporary custody of HCJFS.
       {¶10} On February 13, 2013, the juvenile court held a hearing on the permanent
custody motion. Rebecca was not present and Steven was still incarcerated. However,
both were represented by counsel. The following testimony was presented:
                                                                                     -3-


       {¶11} Marie Seiber, the guardian ad litem, testified that the children expressed no
interest in seeing their father and did not want to live with either parent again. The
children were previously in the custody of Jefferson County Children Services for fourteen
months in 2008 and 2009 due to Rebecca leaving the children with another couple who
did not provide a clean living environment and not filling all necessary prescriptions for
S.B.'s asthma. Seiber testified, "I think by then Steve was already in prison for the
aggravated robbery. " Rebecca was going on crack binges and leaving the children with
the couple. Rebecca completed inpatient treatment successfully and regained custody of
the children in 2009. Seiber indicated that her entire testimony was based upon reading
other documents and/or reports; specifically judgment entries and the guardian ad litem
report in the Jefferson County case.
       {¶12} Seiber testified that after Rebecca regained custody there were a number of
reports from 2009 to 2012 regarding K.B.'s sexual behavior with S.B. Rebecca would
leave the children with her boyfriend or somebody else while she was out using crack.
Rebecca's long-standing history of crack addiction left her unable to provide a secure
place for the children. Rebecca refused in-patient treatment, had sporadic attendance at
counseling appointments and did not have control of her addiction. According to reports
from Rebecca's husband, she continued to leave for days at a time on crack binges.
       {¶13} Seiber further explained that K.B. and S.B. suffered "significant emotional
scars" from their home life. K.B. was subjected to sexual abuse and attempted to commit
suicide by drowning at the age of ten, and that K.B. does not understand "boundaries with
men she meets casually."        Seiber understood that K.B. was first molested by
"somebody's boyfriend in conjunction with the family but no names were mentioned."
Further, K.B. was being left with Rebecca's uncle who Rebecca readily acknowledged
molested her and other girls in the family. K.B. reported being molested by the uncle but
Rebecca ignored it because she was having sex with the uncle for money. K.B.
internalized her own sexual abuse and perpetuated it on others including S.B. Seiber
said that Rebecca and her husband, Finley Miller, would encourage K.B.'s sexual abuse
of S.B. and call K.B. "a crack whore, a slut."
                                                                                      -4-


       {¶14} Regarding placement, Seiber testified that there were efforts made to place
the children with relatives, but that could not be accomplished. K.B. was placed in an all
girls group home in order to prevent contact with men. Seiber reported K.B. was one of
the younger girls there but she liked it and was adapting nicely. K.B. had decent grades
and participated in school activities. S.B. was placed in a foster home and was doing
very well. He was diagnosed with ADHD and intermittent explosive disorder but there had
been no significant problems. Seibert believed granting permanent custody to the agency
was in the best interest of both children.
       {¶15} Counsel for Steven next cross-examined Seiber and she admitted that she
never had contact with Steven because he was in prison during the pendency of this case
and her knowledge regarding him was gleaned from information in agency files. Seiber
stated that no case services were recommended for Steven because it would have been
impossible for him to complete them. Seiber believed that in light of the offense for which
Steven was serving time, he would need serious anger management counseling and to
get a job. Further, it would take "considerable case services for him to be able to obtain
custody of these children." On re-direct, Seiber testified that the children never brought
Steven up in conversation; however K.B. reported to her on one occasion that "dad was
in prison because he had to rob a place so they would have food to eat."
       {¶16} Linda Schoppe, social service worker for HCJFS, formulated the case plan
in which Rebecca was required to complete individual counseling, drug and alcohol
counseling, and parenting classes. Schoppe testified at length about Rebecca's failures
regarding the case plan and visitation of the children.
       {¶17} Regarding Steven, Schoppe never had any contact with him. She stated he
was incarcerated but she 'was not sure which jail.' When asked what his release date
was, she stated 'in November of 2013 according to what I had gotten off the inmate
registry thing on line.' When asked when Steven was placed in jail, Shoppe stated, 'it
said he had a three year sentence so if he's done in '13 I'm assuming he went in 2010.'
Shoppe was asked about Steven's relationship with the children and she stated K.B.
asked how he was and reported that she did not remember what he looked like. The only
                                                                                       -5-


thing K.B. remembered about him was that he would carry her on his shoulders. K.B.
stated that Steven had robbed somebody to get them Christmas presents.
       {¶18} Schoppe testified that the goal was to find adoptive placement. As of the
hearing date, K.B. was in a group home called Chances Given which she liked some
days. S.B. was in a group home but later moved to a foster parent who does not want to
adopt. K.B. would like to be placed in a foster home with her brother, but S.B. was
unsure whether he wants to live with K.B. The goal was to find the children an adoptive
placement together in a home that could monitor them and keep them safe. The two
relative placements, friends and family of Steven, who were investigated pursuant to
Steven's request, ultimately declined placement.
       {¶19} On cross-examination, Schoppe testified that if Steven were not in jail, she
would have recommended an assessment for drugs and alcohol, anger management,
and parenting classes as part of a case plan. She did not know of his current drug use or
the last time he used. Shoppe did not contact the jail to see if any of those services were
available and did not recommend any services in the case plan for him.
       {¶20} Counsel for Steven asked for an extension so Steven could have services
made available to him and to determine whether upon his release he would be a suitable
placement for the children. The juvenile court ruled from the bench that reasonable
efforts had been made and it was in the best interests of the children that permanent
custody be granted to HCJFS.
       {¶21} The judgment entry was filed on February 15, 2013, and on February 25,
2013, the juvenile court filed a judgment entry nunc pro tunc to reflect the correct date of
the permanent custody hearing. In regards to Steven, the entry noted that: 1) he is the
father of the children; 2) he was in prison at the Trumbull Correctional Institution and
represented by counsel; 3) the GAL had little to say regarding him and Steven offered no
witnesses or evidence; 4) due to his incarceration he was unable to care for or support
the children for the foreseeable future; and finally, 5) even if Steven was released on
November 23, 2013, he would have less than six weeks to work a case plan before the
full two years expired on this case. Based upon its findings, the juvenile court found
                                                                                        -6-


reasonable efforts had been made by HCJFS to reunify the children with their parents
and that it could not be done. Further, that HCJFS established by clear and convincing
evidence that it is in the best interests of the children that they be placed in the
permanent custody of HCJFS. Steven's parental rights were terminated, and he filed the
instant appeal. Rebecca's parental rights were also terminated, but she did not file an
appeal.
                                   Reasonable Efforts
       {¶22} In his first of two assignments of error, Steven asserts:
       {¶23} "The department failed to use reasonable or good faith efforts to reunite the
father and the children."
       {¶24} Steven argues that because HCJFS did not include him in the case plan,
the agency did not use reasonable, good faith efforts to reunite him with the children.
HCJFS counters that this is the first time Steven has made this argument.               The
adjudication and disposition hearing was held on January 27, 2012. Pursuant to a
judgment entry dated February 16, 2012, the juvenile court found the children to be both
neglected and dependent and further that both the best interests and reasonable efforts
tests were met by HCJFS. No appeal was taken from this entry.
       {¶25} Steven's only action in response to HCJFS taking temporary custody of the
children was to attempt to have his parental rights delegated to either his mother, sister or
ex-wife, Barbra Joe Ann Dillinger. His mother and Ms. Dillinger were contacted by
HCJFS. Ultimately his mother was approved by HCJFS but withdrew her willingness to
accept temporary custody of the children. Ms. Dillinger withdrew prior to the home study
being completed. Steven never raised the issue of not being included in the case plan or
that HCJFS failed to make reasonable efforts to reunite him with his children with the
juvenile court.
       {¶26} An appellate court will not consider any error which could have called to the
trial court's attention at a time when such error could have been corrected or avoided by
the trial court. In re I.T.A. and A.A., 7th Dist. Belmont Nos. 11 BE 27, 11 BE 29, 2012-
Ohio-1689, ¶17 citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d
                                                                                      -7-


1001(1982). Moreover, because it is a final appealable order, an adjudication order of
abuse, dependency, or neglect and the award of temporary custody pursuant to R.C.
2151.353(A)(2) must be filed within 30 days of the judgment entry pursuant to App.R.
4(A). In re H.F., 120 Ohio St.3d. 499, 2008-Ohio-6810, 900 N.E.2d 607, at syllabus. In
re K.G., 7th Dist. No. 09 MA 56, 2009-Ohio-6531, at ¶28. As such Steven has waived
this argument for purposes of appeal. Accordingly, his first assignment of error is
meritless.
                                        Manifest Weight
       {¶27} In his second and final assignment of error, Steven asserts:
       {¶28} "The grant of permanent custody was against the manifest weight of the
evidence."
       {¶29} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972). However, this right is not absolute. In
re Sims, 7th Dist. Jefferson No. 02-JE-2, 2002-Ohio-3458, at ¶23. In order to protect a
child's welfare, the state may terminate parents' rights as a last resort. Id.
       {¶30} The evidentiary standard in permanent custody cases is clear and
convincing evidence. R.C. 2151.414(B)(1). "Slightly less stringent than "proof beyond a
reasonable doubt," the clear-and-convincing standard carries the highest burden of proof
that can be required in a civil proceeding—defined as more than a mere preponderance
of the evidence, clear and convincing evidence is that which is sufficient to establish a
firm belief or conviction as to the facts sought to be established." In re J.W., 10th Dist.
06AP-1017, 06AP-15, 2007-Ohio-2007, ¶15, citing Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus.
       {¶31} As to the standard of review, "[a]n appellate court's review of a juvenile
court's decision granting permanent custody is limited to whether sufficient credible
evidence exists to support the juvenile court's determination." In re G.N., 170 Ohio
App.3d 76, 2007-Ohio-126, 866 N.E.2d 32 (12th Dist.) citing In re Starkey, 150 Ohio
App.3d 612, 2002-Ohio-6892, 782 N.E.2d ¶16 (7th Dist.). Where a manifest weight
                                                                                        -8-


challenge is made on appeal, the appellate court looks at "the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,
¶12, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
"Weight is not a question of mathematics, but depends on its effect in inducing belief." Id.
This standard of review as set forth in Thompkins has been extended to civil cases
generally, Eastley at ¶17, and cases involving the termination of parental rights
specifically. See In re S. Children, 5th Dist. No. 2012-CA-00164, 2012-Ohio-6265.
       {¶32} Before parental rights can be terminated, an agency must prove by clear
and convincing evidence that a permanent custody order is in the best interests of the
child and one of the following provisions also apply: "(a) the child cannot be placed with
either parent within a reasonable amount of time or should not be placed with either
parent, (b) the child is orphaned, (c) the child is abandoned, (d) the child has been in the
temporary custody of the agency for twelve or more months of a consecutive twenty-two
month period." In re J.Z., 7th Dist. Columbiana No. 08 CO 31, 2009-Ohio-1937, ¶18,
citing R.C. 2151.414(B)(1)(a)-(d).
       {¶33} Here, the children are not alleged to be orphaned or abandoned. Although
they had been in temporary custody for thirteen of twenty-two months on the date the
permanent custody motion was heard, the relevant date triggering this provision is the
date the motion was filed by the agency. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-
6411, 818 N.E.2d 1176 at ¶22-26 (the court cannot use the "12 of 22" provision if the
agency files the motion for permanent custody prior to the child actually being in the
temporary custody for 12 months). Here, HCJFS's motion was filed prior to the expiration
of twelve months.        Thus, the 12 of 22 provision is inapplicable, and R.C.
2151.414(B)(1)(a) is the only remaining alternative factor to pursue permanent custody in
this case.
       {¶34} Consequently, we must determine whether the record supports the finding
that the children should not be placed with Steven pursuant to R.C. 2151.414(B)(1)(a).
When determining whether a child cannot be placed with either parent, the juvenile court
                                                                                      -9-


must find by clear and convincing evidence that at least one of the factors enumerated in
R.C. 2151.414(E) exist as to each of the child's parents. R.C. 2151.414(E). "The
existence of a single R.C. 2151.414(E) factor will support a finding that a child cannot be
placed with either parent within a reasonable time." In re M.P., 7th Dist. Columbiana No.
11-CO-4, 2011-Ohio-6372 at ¶20 citing In re H.M.C., 4th Dist. No. 07CA18, 2007-Ohio-
4661, at ¶35.
       {¶35} R.C. 2151.414(E) contains sixteen factors for the trial court to consider
when terminating parental rights pursuant to R.C. 2151.414(B)(1)(a). A review of the
record in the present case reveals that extensive testimony and evidence was presented
regarding the mother, Rebecca. Conversely, there is virtually nothing in the record
regarding Steven.
       {¶36} Although Steven was in jail during the entire proceedings, HCJFS offered no
testimony or evidence as to any information surrounding this incarceration including the
actual nature of his conviction, when it began and when it was to end. HCJFS admitted
that Steven was not provided a case plan due to his incarceration. No testimony was
presented regarding any of the other R.C. 2151.414(E) factors including whether Steven
was diagnosed with mental illness; whether he committed any type of abuse towards
others; whether he suffered from drug or alcohol additions; that he had abandoned the
children; that he failed to provide for the children; if he was repeatedly incarcerated; or
whether he was unwilling to provide food, clothing or shelter for the children.
       {¶37} We must emphasize that termination of parental rights is referred to as "'the
family law equivalent of the death penalty in a criminal case.''' In re Hoffman, 97 Ohio
St.3d 92, 776 N.E.2d 485, 2002-Ohio-5368, at ¶14, quoting In re Smith, 77 Ohio App.3d
1, 16, 601 N.E.2d 45 (1991). Because our review is limited to the evidence in the trial
court record and HCJFS presented so little evidence about Steven, it is impossible to
apply the statutory factors to this case and determine whether Steven's parental rights
should be terminated. As HCJFS failed to meet its burden regarding permanent custody,
Steven's second assignment of error is meritorious.
       {¶38} An agency seeking permanent custody must also prove that permanent
                                                                                        - 10 -


custody is in the best interests of the children. But because we have concluded that
HCJFS failed to prove that one of the factors in R.C. 2151.414(B)(1)(a)-(d) warranted
terminating Steven's parental rights, we decline to address whether or not it is in the
children's best interest to award permanent custody to HCJFS. Our favorable resolution
of Steven's manifest weight argument renders the discussion of best interests moot and
dispenses with our need to address it at this time. See generally, App.R. 12(A)(1)(c).
       {¶39} In conclusion, the juvenile court's judgment terminating Steven Buckey's
parental rights to his minor children is reversed on the basis that it is against the manifest
weight of the evidence. Accordingly, this cause is reversed and remanded to the trial
court for a new trial consistent with this Court's opinion.
Donofrio, J., concurs.
Waite, J., concurs.
