[Cite as In re A.J., 2016-Ohio-7979.]



                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 IN RE: A.J., K.J., C.J. and M.J.             :
                                              :
                                              :   C.A. CASE NO. 27137
                                              :
                                              :   T.C. NOS. 2013-1914, 2013-1915,
                                              :   2013-1916, 2013-1917
                                              :
                                              :   (Civil appeal from Common Pleas
                                              :    Court, Juvenile Division)
                                              :

                                         ...........

                                        OPINION

             Rendered on the ___30th___ day of _____November_____, 2016.

                                         ...........

HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P. O. Box 137, Germantown, Ohio 45327
     Attorney for Defendant-Appellant

                                        .............

DONOVAN, P.J.

        {¶ 1} Petitioner-appellant Father appeals a decision of the Montgomery County

Court of Common Pleas, Juvenile Division, terminating his parental rights with respect to

four of his minor children, A.J., K.J., C.J., and M.J. (hereinafter referred to as “the

Children”), and awarding permanent custody of all of the Children to Montgomery County

Children’s Services (hereinafter “MCCS”). Father filed a timely notice of appeal with this
                                                                                        -2-


Court on June 1, 2016.1

       {¶ 2} A.J. was born in April of 2007. K.J. was born in September of 2009. C.J.

was born in April of 2010. M.J. was born in March of 2011. Father is the biological

father of A.J., K.J., and C.J., but not M.J. Father, however, is listed as the legal father

and guardian of all the Children.

       {¶ 3} MCCS became involved with the Children in March of 2013, after Mother

gave birth to a baby who tested positive for illegal drugs. The record indicates that this

was the second child that Mother had given birth to who tested positive for drugs. Mother

also tested positive for drugs at the time of the child’s birth. In a separate case, Mother

and Father’s parental rights were terminated with respect to the infant born in March of

2013. We also note that in February of 2013, Father was arrested for possession of

marijuana and pills without a prescription.

       {¶ 4} Thereafter, on March 18, 2013, MCCS filed a complaint in which it alleged

that the Children were dependent because of Mother and Father’s drug abuse and the

parents’ inability to provide basic necessities for them. On March 25, 2013, the juvenile

court awarded interim custody of the Children to MCCS. The Children were adjudicated

dependent on April 23, 2013. MCCS was awarded temporary custody of the Children

on July 24, 2013.

       {¶ 5} In the early pendency of the case, MCCS created a case plan for Mother and

Father whereby they could address the issues leading to the removal of the Children from



1  We note that although Mother’s parental rights regarding all of the Children were also
terminated along with Father’s rights, Mother did not appeal the juvenile court’s decision.
Therefore, on appeal, we need only address the merits of the juvenile court’s decision as
it relates to Father.
                                                                                         -3-


their care.   The case plan for Father included a drug assessment and follow up

treatment, an order to obtain and maintain stable housing and employment, and complete

parenting classes, as well as to attend the Children’s various appointments.

       {¶ 6} On May 27, 2014, the juvenile court granted MCCS the first extension of

temporary custody of the Children. Shortly thereafter, on September 12, 2014, MCCS

filed a motion for permanent custody of the Children. Mother filed a motion for a second

extension of temporary custody of the Children on December 8, 2014. On January 16,

2015, Father filed a motion for custody of the Children, or in the alternative, for a second

extension of temporary custody to MCCS.

       {¶ 7} On January 23, 2015, a hearing was held before the magistrate regarding

MCCS’s motion for permanent custody, during which the trial court heard testimony from

several witnesses, including Mother, MCCS caseworker Kathy Hatton, and the Children’s

foster mother.    The hearing was continued until April 2, 2015, at which time the

magistrate heard additional testimony regarding the motion for permanent custody of the

Children as well as the MCCS’s recent motion to suspend Father’s visitation. Mother

was not present at the continued hearing because she was incarcerated. Father was

present at the hearing but did not testify. The magistrate heard testimony from the

Children’s therapists and caseworkers from MCCS. Father’s sister and grandmother

also testified on his behalf.

       {¶ 8} On July 27, 2015, the magistrate issued a decision terminating Mother and

Father’s parental rights and granting permanent custody of the Children to MCCS.

Represented by separate counsel, Mother and Father filed objections to the magistrate’s

decision on the same day, August 10, 2015. The juvenile court subsequently overruled
                                                                                        -4-


Mother and Father’s objections and adopted the magistrate's decision in a judgment

issued on April 25, 2014.

      {¶ 9} It is from this judgment that Father now appeals.

      {¶ 10} Father’s sole assignment of error is as follows:

      {¶ 11} “THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY TO

MONTGOMERY COUNTY CHILDREN’S SERVICES BECAUSE THAT AGENCY

FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT

CUSTODY WAS IN THE BEST INTEREST OF THE CHILD.”

      {¶ 12} In his sole assignment, Father contends that the juvenile court erred when

it adopted the decision of the magistrate granting permanent custody of the Children to

MCCS. Specifically, Father argues that the evidence adduced at the hearing established

that he had completed “most” of his case plan objectives and he was sufficiently bonded

with the Children.

      {¶ 13} R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The statute

requires the court to find, by clear and convincing evidence, that: (1) granting permanent

custody of the child to the agency is in the best interest of the child; and (2) either the

child (a) cannot be placed with either parent within a reasonable period of time or should

not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;

(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of

the child; or (d) has been in the temporary custody of one or more public or private

children services agencies for twelve or more months of a consecutive twenty-two month

period. In re K.M., 8th Dist. Cuyahoga No. 98545, 2012–Ohio–6010, ¶ 8, citing R.C.
                                                                                           -5-


2151.414(B)(1).

       {¶ 14} R.C. 2151.414(D) directs the trial court to consider all relevant factors when

determining the best interest of the child, including but not limited to: (1) the interaction

and interrelationship of the child with the child's parents, relatives, foster parents and any

other person who may significantly affect the child; (2) the wishes of the child; (3) 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

for twelve or more months of a consecutive twenty-two-month period; (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 of the

factors in R.C. 2151.414(E)(7) through (11) are applicable.

       {¶ 15} Father does not dispute that at the time of the hearing, the Children had

been in the temporary custody of the Agency for over twelve months of a consecutive

twenty-two month period. The Children have resided together at the same foster

placement since they were taken into the custody of MCCS in April of 2013.               The

evidence supports a finding that the Children are bonded with their foster family. The

Children refer to their foster parents as “mom” and “dad,” respectively. The evidence

also established that the Children are adoptable, and that at the time of the hearing, the

foster family expressed their desire to adopt all of the Children.

       {¶ 16} Foster mother testified that after visits with Father, M.J. was noticeably

quieter and started wetting the bed and spreading feces on the floor in the bathroom.

Foster mother also testified that K.J. began calling her and her husband by their first

names because Father told the Children not to call them “mom” and “dad.” Foster
                                                                                       -6-


mother further testified that A.J. and K.J. reported to her that they were very upset

because at a recent visit, Father had stated that he was going to kill the foster parents

after the Children were released into his care. The Children indicated to Alicia Green,

an MCCS caseworker, that they were scared of Father because he told them he was

going to kill the foster parents as well as MCCS employees.

       {¶ 17} Kevin Denzler, a licensed therapist employed by the National Youth

Advocate Program, testified that he has counseled A.J. since August of 2013. Denzler

testified that based on his interactions with A.J., he believes she may have past exposure

to domestic violence in her biological parents’ home and could be moderately traumatized

as result. Denzler testified that A.J. stated that she and the other children were scared

and anxious after a visit with Father in March of 2015 because he was yelling at the

children for telling others about the way he acted during their visitation time at MCCS.

A.J. told Denzler that she was concerned that if she and the other children were to be

placed back with Father, their lives would not get better, but only get worse. Green

testified that in March of 2015, there was an altercation between Father and a Sheriff’s

Deputy during which Father yelled profanities at the deputy and also called the Children’s

former MCCS supervisor derogatory names. The Children reported to Green that while

they love Father and like to see him, they were scared of the way he acted and wanted

the foster parents to be present with them during visitation. M.J. informed Green that

essentially he believes he is treated badly because he is not Father’s biological child.

M.J. indicated that he wanted to live with his foster parents.

       {¶ 18} Additionally, the record establishes that Father has an ongoing substance

abuse problem that he has failed to properly address. In early 2013, Father tested
                                                                                          -7-


positive for drugs and was referred to CAM and completed the outpatient program.

Thereafter, however, on December 18, 2014, at the beginning of a visitation with the

Children, Father submitted to a drug screen which came back positive for cocaine, heroin,

alcohol, and other unspecified opiates. Green testified that Father disputed the drug test

results, stating that he only smoked cigarettes.       Father claimed the drug test was

incorrect. Father was referred to an assessment at CAM after the positive drug screen,

but he never attended the assessment claiming that he was “too busy.” Green also

provided Father with a list of local adult in-patient and outpatient treatment providers, but

he never contacted any of the local treatment facilities.

       {¶ 19} The record also establishes that Father has failed to provide adequate

housing for the Children. Specifically, Father began living with his parents after the

Children were placed in the temporary custody of MCCS.            MCCS supervisor Kathy

Hatton testified that Father’s parents’ house did not have sufficient bed space for all of

the Children. Sometime thereafter in September of 2014, former MCCS caseworker

Michelle Smith testified that she did a home visit at Father’s purported new residence

where he stated he was living with his grandmother. Smith testified that it was apparent

that Father was not actually living at the residence because the room he stated was “his”

was filled what appeared to be his grandmother’s personal items. Moreover, Smith

testified that the grandmother’s house did not contain sufficient bed space and bedding

for all of the Children. Green further testified that at the time of the hearing, Father had

failed to locate adequate, stable housing for the Children and himself.

       {¶ 20} Furthermore, we note that all of the Children were involved in some type of

therapy or counseling at the time of the permanent custody hearing.             The record
                                                                                        -8-


establishes that Father never contacted any of the Children’s therapists or counselors

regarding their progress. A.J. and K.J. were both struggling at school when they were

initially placed in foster care. A.J. and K.J. were therefore placed in special programs to

help them succeed. Although he was told to contact the school regarding their progress,

Father has never contacted A.J. and K.J.’s school. The record also establishes that

Father has never contacted the Children’s foster mother regarding any medical and/or

dental appointments they have attended, nor has Father attended any such

appointments. Father indicated to Green that he did not think that the Children needed

to be involved with any special services if they were returned to his custody. Father

further stated that the only reason the Children were receiving help was because MCCS

was involved.

      {¶ 21} Finally, the GAL indicated that the Children’s best interests would be served

by granting custody to MCCS. Father expresses the desire to retain custody of the

Children, but he failed to comply with the terms of his case plan, which was designed to

aid him in rectifying the problems that resulted in MCCS's intervention. Specifically, the

record establishes that Father failed to maintain stable housing, and he has a significant,

ongoing substance abuse problem that he failed to properly address. Moreover, his

angry, erratic, and potentially violent behavior during visitation with the Children speaks

to his questionable fitness as a caretaker and provider for the Children.

      {¶ 22} A trial court's decision on termination “will not be overturned as against the

manifest weight of the evidence if the record contains competent, credible evidence by

which the court could have formed a firm belief or conviction that the essential statutory

elements for a termination of parental rights have been established.” (Citations omitted).
                                                                                           -9-

In re A.U., 2d Dist. Montgomery No. 22264, 2008–Ohio–186, ¶ 15. Furthermore, “issues

relating to the credibility of witnesses and the weight to be given the evidence are primarily

for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007–Ohio–3433, ¶ 22.

The “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.” Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984); In re J .Y., 2d Dist. Miami No. 07–CA–35, 2008–Ohio–3485,

¶ 33.

        {¶ 23} Our review of the record, transcript, and exhibits establishes that there is

clear and convincing evidence which supports the juvenile court's decision finding that

the statutory elements for termination under R.C. 2151.414(B) have been satisfied.

Thus, the juvenile court did not err when it adopted the decision of the magistrate

awarding permanent custody of the Children to MCCS.

        {¶ 24} Father’s sole assignment of error is overruled.

        {¶ 25} Father’s sole assignment of error having been overruled, the judgment of

the juvenile court is affirmed.

                                        ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Heather N. Jans
Kirsten Knight
Andrew Schlueter
Julia Kolber
Hon. Anthony Capizzi
