[Cite as In re J.B., 2011-Ohio-2561.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

                                               :

                                               :   C.A. CASE NO. 10-CA-101
IN RE:
                                               :   T.C. CASE NOS. 2008-1655
        J.B., JR. AND                                             2010-362
        I.B.                                   :
                                                    (Civil Appeal from
                                               :    Common Pleas Court,
                                                    Juvenile Division)
                                        . . . . . . . . .

                                          O P I N I O N

                      Rendered on the 27th day of May, 2011.

                                        . . . . . . . . .

Andrew R. Picek, Atty. Reg. No. 0082121, Assistant Prosecuting
Attorney, 50 E. Columbia Street, 4th Floor, P.O. Box 1608,
Springfield, OH 45501
     Attorney for Plaintiff-Appellee State of Ohio

Scott A. Ashelman, Atty. Reg. No. 0074325, 733 Liberty Tower, 120
W. Second Street, Dayton, OH 45402
     Attorney for Defendant-Appellant R.B.

James Griffin, 8 N. Limestone Street, Suite D, Springfield, OH
45502
     Attorney for Guardian ad Litem-Appellee

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This appeal is brought by R.B., the mother of J.B., Jr.

and I.B., from a judgment of the juvenile court that granted

permanent custody of her two children to the Family and Children
                                                                     2

Services of Clark County (“FCSCC”).

     {¶ 2} R.B. has eleven children, but does not have custody of

any of them.      She previously lost permanent custody of three

children by order of the juvenile court of Clark County.        R.B.’s

tenth child, J.B., Jr., was born on September 25, 2008.         FCSCC

filed a complaint for protective supervision on October 2, 2008,

asking that J.B., Jr. be adjudicated as a dependent child pursuant

to R.C. 2151.04(C).     The juvenile court appointed a Guardian ad

Litem for J.B., Jr.    On October 20, 2008, the juvenile court found

that J.B., Jr. was a dependent child and entered a protective

supervision order.     J.B., Jr. remained in the custody of his

parents, who were ordered to undergo drug and alcohol assessments,

maintain   stable     housing   and   employment,   cooperate    with

parenting/psychological evaluations, and follow recommendations

in a case plan.   Upon motion of FCSCC, the juvenile court extended

the protective supervision order on April 13, 2009, July 1, 2009,

and October 13, 2009.

     {¶ 3} In early February of 2010, FCSCC filed a complaint for

temporary shelter care custody, alleging that J.B., Jr. was a

dependent child pursuant to R.C. 2151.04(A) and a neglected child

pursuant to R.C. 2151.03(A)(2) and (3).      On February 19, 2010,

the juvenile court ordered that J.B., Jr. be placed in the temporary

shelter care of FCSCC.
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     {¶ 4} R.B.’s eleventh child, I.B., was born on March 11, 2010.

 FCSCC filed a motion for temporary shelter care custody of I.B.

on March 12, 2010, alleging that I.B. was a dependent child pursuant

to R.C. 2151.04(A) and a neglected child pursuant to R.C.

2151.03(A)(2) and (3).      The juvenile court granted FCSCC’s motion

and appointed a Guardian ad Litem for I.B.

     {¶ 5} The   juvenile    court   subsequently    granted   temporary

custody of J.B., Jr. and I.B. to FCSCC.      In August of 2010, FCSCC

filed motions for permanent custody of J.B., Jr. and I.B.             On

September 20, 2010, following a two-day permanent custody trial,

the juvenile court awarded permanent custody of J.B., Jr. and I.B.

to FCSCC.   The mother, R.B., filed a notice of appeal.        The father

of the two children did not file a notice of appeal.

                             ASSIGNMENT OF ERROR

     {¶ 6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

MOTHER IN VIOLATION OF O.R.C. §2151.414, AND THE U.S. AND OHIO

CONSTITUTIONS WHEN IT TERMINATED APPELLANT’S PARENTAL RIGHTS BY

GRANTING PERMANENT CUSTODY OF HER MINOR CHILDREN, J.B., AND I.B.,

TO FAMILY AND CHILDREN’S SERVICES OF CLARK COUNTY.”

     {¶ 7} A reviewing court must affirm a trial court’s decision

regarding permanent custody unless it is unsupported by clear and

convincing evidence.     R.C. 2151.414(B)(1).       Clear and convincing

evidence is the amount of proof that will produce in the mind of
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the trier of fact a firm belief or conviction as to the allegations

to be proved.   It is an intermediate standard of proof, being more

than a preponderance of the evidence and less than evidence beyond

a reasonable doubt. State v. Ingram (1992), 82 Ohio App.3d 341;

Cross v. Ledford (1954), 161 Ohio St. 469, 477.

     {¶ 8} R.B. argues that the juvenile court’s award of permanent

custody of the minor children to FCSCC was against the manifest

weight of the evidence.       A weight of the evidence argument

challenges the believability of the evidence and asks which of

the competing inferences suggested by the evidence is more

believable or persuasive.      State v. Hufnagle (Sept. 6, 1996),

Montgomery   App.   No.   15563.   “Judgments   supported   by   some

competent, credible evidence going to all the essential elements

of the case will not be reversed by a reviewing court as being

against the manifest weight of the evidence.”       C.E. Morris Co.

v. Foley Const. Co. (1978), 54 Ohio St.2d 279, at syllabus.

     {¶ 9} R.C. 2151.414(B)(1) provides that the court may grant

the motion of an agency seeking permanent custody of a child if

it finds, by clear and convincing evidence, that it is in the best

interest of the child to award permanent custody of the child to

the agency, and the court makes one of the four alternative findings

set out in R.C. 2151.414(B)(1).    One of those alternative findings

is that the child “cannot be placed with either of the child’s
                                                                    5

parents within a reasonable time or should not be placed with the

child’s parents.”    R.C. 2151.414(B)(1)(a).   Another is that the

child “has been in the temporary custody of one or more public

children’s services agencies for twelve or more months out of a

consecutive twenty-two month period.”     R.C. 2151.414(B)(1)(d).

     {¶ 10} At the time of the permanent custody hearing, neither

J.B., Jr. nor I.B. had been in the temporary custody of FCSCC for

twelve or more months out of a consecutive twenty-two month period.

 Therefore, in order to grant FCSCC’s motion for permanent custody,

the juvenile court was required to find that 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.”        R.C.

2151.414(B)(1)(a).

     {¶ 11} R.C. 2151.414(E) provides, in part:

     {¶ 12} “In determining at a hearing held pursuant to division

(A) of this section * * * 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

* * * 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
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should not be placed with either parent:

     {¶ 13} “(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 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.

     {¶ 14} * *

     {¶ 15} “(4) The parent has demonstrated a lack of commitment

toward the child by failing to regularly support, visit, or

communicate with the child when able to do so, or by other actions

showing an unwillingness to provide an adequate permanent home

for the child.”

     {¶ 16} The juvenile court found that J.B., Jr. and I.B. cannot

be placed with either parent within a reasonable period of time

or should not be placed with either parent.    The juvenile court
                                                                    7

explained:

     {¶ 17} “The children should not be returned to the parents for

the following reasons:

     {¶ 18} “A.   Following removal of the children outside the home

of the parents, and notwithstanding reasonable case planning and

diligent efforts by the agency to assist the parents, they have

failed to remedy the problems that caused the children to be placed

outside the home.

     {¶ 19} “B.   The parents have demonstrated a lack of commitment

and dedication toward the children by failing to regularly support

the child.   Furthermore, the parents frequently failed to visit

with the children with the opportunity to do so.    The parents have

failed to attend many medical appointments of the children.    Their

lack of concern demonstrates their lack of commitment to the needs

of the children.”     (Dkt. 182, p. 5-6.)

     {¶ 20} The clear and convincing evidence of record established

that R.B. has failed repeatedly to meet the needs of J.B., Jr.

and I.B. and to comply with the requirements of her case plan and

orders of the juvenile court.   For example, R.B. failed to complete

the Family Dependency Treatment Court program, failed to complete

the mental health and drug and alcohol programming offered to her,

failed to get J.B., Jr. to Head Start, failed to complete the program

Parents as Partners, failed to regularly visit with her children,
                                                                                8

and failed to find employment and meet child support obligations.

 In short, R.B. failed to demonstrate any reasonable probability

that she will change her habits and practices in a way that will

provide a suitable home for her children.

      {¶ 21} R.B. argues that the juvenile court’s finding is against

the manifest weight of the evidence because she testified that

she wants to improve for the benefit of her children and that she

would be able to complete all the goals of her case plan if she

were given an additional six         months to work toward them.          Brief,

p. 11.      Further, R.B. claims that she is “likely disabled” and

that “[i]t is entirely possible” that she “simply cannot obtain

a job through no fault of her own.”             Brief, p. 10.

      {¶ 22} The     juvenile   court    did   not   find   R.B.’s   testimony

credible.     The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve.     State v. DeHass (1967), 10 Ohio St.2d 230.                 In State

v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, we observed:

      {¶ 23} “Because the factfinder . . . has the opportunity to

see   and    hear    the   witnesses,    the   cautious      exercise    of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial         deference   be      extended     to     the   factfinder’s

determinations of credibility.           The decision whether, and to what
                                                                      9

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the factfinder, who has seen and heard

the witness.”

      {¶ 24} The juvenile court’s finding that J.B., Jr. and I.B.

cannot be placed with either parent within a reasonable period

of time or should not be placed with either parent is supported

by the competent, credible evidence of record and is therefore

not against the manifest weight of the evidence.

      {¶ 25} The juvenile court found that it was in the best interest

of J.B., Jr. and I.B. to grant permanent custody of the children

to FCSCC.   In determining the best interests of the child, R.C.

2151.414(D)(1) requires the court to consider, among other relevant

factors, the following:

      {¶ 26} “(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;

      {¶ 27} “(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;

      {¶ 28} “(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
                                                                  10

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;

     {¶ 29} “(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;

     {¶ 30} “(e) Whether any of the factors in divisions (E)(7) to

(11) of this section apply in relation to the parents and child.”

     {¶ 31} The juvenile court identified the following reasons for

finding that it was in the best interest of J.B., Jr. and I.B.

to grant permanent custody of the children to FCSCC:



     {¶ 32} “A. There is a reasonable probability that the children

can be adopted.    The children have lived in legal limbo for many

months.   The children would benefit greatly from a permanent,

secure home.

     {¶ 33} “b.   The children have had not regular and meaningful

contact with their biological family.

     {¶ 34} “c.   There is no probability that the parents will be
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able to provide a safe, secure and appropriate home for the children

any time soon.

     {¶ 35} “d.   The Guardian ad Litem for the children recommended

that the motion for permanent custody be granted.

     {¶ 36} “e.   Neither parent has substantially remedied the

conditions that caused removal of the children.

     {¶ 37} “f.   There are no known or interested relatives on either

side of the family that can care for their children.

     {¶ 38} “g.   The wishes of the children as expressed directly

by the Guardian ad Litem indicate a strong desire to be placed

in a loving, secure, permanent home that neither parent can provide.

     {¶ 39} “h.   There is no safe, appropriate, harmonious and

loving relationship between the children and the children’s parents

or extended family.      The children will benefit from continued

removal from the birth families.       There is no indication of a

significant risk or harm to the children by not returning the

children to the parent.     In fact, the evidence is clear that the

children will benefit significantly if the children is [sic] not

returned to either parent.”      (Dkt. 182, p. 6-7.)

     {¶ 40} The clear and convincing evidence of record established

that it would be in the best interest of J.B., Jr. and I.B. to

be placed in the permanent custody of FCSCC.     The juvenile court’s

finding is supported by the recommendation of the Guardian ad Litem
                                                                12

and the credible testimony of record.    Consequently, we cannot

find that the juvenile court’s finding is against the manifest

weight of the evidence.



    {¶ 41} The assignment of error is overruled.   The judgment of

the trial court will be affirmed.



FROELICH, J. and HALL, J. concur.

Copies mailed to:

Andrew R. Picek, Esq.
Scott A. Ashelman, Esq.
James Griffin, Esq.
Hon. Joseph N. Monnin
