[Cite as In re C.B., 2019-Ohio-2784.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN RE: C.B.                                    :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                                               :       Hon. Earle E. Wise, J.
                                               :
                                               :
                                               :       Case No. 19CA4
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Richland County
                                                   Court of Common Pleas, Juvenile Division,
                                                   Case No. 2016-DEP-82


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            July 8, 2019


APPEARANCES:

For Richland County Children’s Services            For Father - Appellant

EDITH GILLILAND                                    DARIN AVERY
Richland County Children Services                  105 Sturges Avenue
731 Scholl Road                                    Mansfield, OH 44903
Mansfield, OH 44907
Richland County, Case No. 19CA4                                                          2

Gwin, P.J.

      {¶1}   Appellant C.B. Jr. appeals from the January 17, 2019 judgment entry of the

Richland County Court of Common Pleas, Juvenile Division, overruling his objections to

the magistrate’s decision, terminating his parental rights, and granting permanent custody

of C.B. to the Richland County Children Services Board (“RCCSB”).

                                  Facts & Procedural History

      {¶2}   C.B. Jr. is the father of C.B., born July 13, 2012. D.C. is the mother of C.B.

C.B. has two biological siblings. On September 8, 2016, RCCSB filed a complaint of

dependency with regard to C.B. The complaint alleged, in part, that Mother has three

active warrants for her arrest for child endangerment, has left the state, and has no

contact with her children. Further, that Father is charged with aggravated trafficking,

possession, and paraphernalia, has not maintained contact with his children or RCCSB,

and C.B. observed Father selling drugs. The trial court appointed Dawn Fesmier Pigg as

guardian ad litem (“GAL”) for C.B. on September 19, 2016.

      {¶3}   On September 28, 2016, the magistrate held a dispositional hearing. Father

stipulated to a finding of dependency. The trial court found C.B. to be dependent and

placed him into the temporary custody of RCCSB with a protective supervision order. The

trial court found RCCSB engaged in reasonable efforts to prevent the continued removal

of the child from his home and found those efforts have been unsuccessful given Father’s

felony conviction, Father’s ensuing incarceration, and Mother’s whereabouts being

unknown.

      {¶4}   On December 2, 2016, the magistrate held a further dispositional hearing.

The magistrate found, by clear and convincing evidence, that C.B. is dependent as to
Richland County, Case No. 19CA4                                                            3


Mother and Father and temporary custody to RCCSB is in the best interest of C.B. due

to Father’s lack of participation with the case plan, his current incarceration, and Mother’s

abandonment of the children and unwillingness to return to Ohio. The magistrate found

RCCSB made reasonable efforts to prevent placement. On January 26, 2017, the trial

court adopted and approved the case plan. The magistrate held ninety-day review

hearings in February of 2017 and June of 2017, and found it was in C.B.’s best interest

to remain in the temporary custody of RCCSB.

       {¶5}   On August 11, 2017, RCCSB filed a motion seeking permanent custody of

C.B. The trial court dismissed the motion for permanent custody after RCCSB filed a

motion to extend temporary custody. On January 4, 2018, the magistrate found it was in

C.B.’s best interest to extend temporary custody for six months. Mother filed a motion for

visitation on January 16, 2018. RCCSB filed a motion for permanent custody on February

20, 2018. On June 14, 2018, Father filed a motion for visitation.

       {¶6}   The GAL filed a report on July 18, 2018. The GAL stated Father was

released from prison and called her approximately 30 days after his release to schedule

an office conference. During the office conference, Father informed the GAL he was

staying at a local homeless shelter and mentioned relocating to Cleveland. While Father

told the GAL he completed several programs while incarcerated, he did not sign the

requested releases for the GAL to obtain verification of completion of these programs.

The GAL had not heard back from Father as to his progress. The GAL stated C.B.is

doing well in school and successfully completed preschool. The GAL stated that while

there are a number of children in the foster home, the foster family is clearly bonded to

the children and the children to them. The foster parents have encouraged a relationship
Richland County, Case No. 19CA4                                                          4


with the maternal great-grandmother of the children. The GAL recommended permanent

custody of C.B. be given to RCCSB, as the GAL has never met Mother and because

Father is not in a position to care for the children. Further, that case plan compliance

cannot be confirmed for either parent.

      {¶7}   The magistrate conducted a trial on RCCSB’s motion for permanent custody

and Father’s motion for visitation on July 18, 2018.

      {¶8}   Charlotte Wancha (“Wancha”) is the child’s maternal great-grandmother.

She has known the children ever since they were born and is familiar with the parents.

Wancha testified the children did not get the proper care, as the house was dirty, the

children were dirty, and there was not enough food for the children. Wancha tried to bring

food and help them. The children were present in the home when Wancha smelled

marijuana in the home. Wancha still maintains contact with the children and testified they

are really well behaved and are a lot better than they were.

      {¶9}   Father testified he completed a mental health risk assessment done by the

psychological department within the Lorain Correctional Institution and also completed a

drug and alcohol abuse assessment by Recovery Services while in prison.             Father

completed several programs in prison with regards to anger and stress management.

Father stated he has made mistakes, but loves his children and would do anything for

them. Father believes if he is given 90 to 180 days, he could be financially stable and get

his children back.

      {¶10} Father testified he is living at a homeless shelter. After he leaves there,

Father intends to move to Cleveland where he would sleep at a business for thirty to sixty

days until he has enough money to get a house. Father and Mother are still married.
Richland County, Case No. 19CA4                                                            5


Father is trying to get Mother into rehab now and still loves her. Father video chats with

Mother several times per week and Mother currently uses heroin, methamphetamine, and

cocaine. Mother told Father she gets money for drugs from prostitution. Father does not

believe Mother is an appropriate parent to the children. Mother made allegations of

domestic violence against him.       Father originally was charged with two counts of

aggravated drug trafficking and one count of possession.             Father pled guilty to

possession, a third degree felony, and was sentenced to two years in prison. After

Father’s arrest, the children did not return to him. Father admitted that prior to his

incarceration, he did not do any of the voluntary case plan items.

       {¶11} Father believes it is in the best interest of the children to be returned to his

custody because he wants his children to know he is always going to be there for them.

Father testified he made some mistakes, but he was going through depression and

anxiety because his wife left him, he could not pay his bills, and since he could not afford

to feed his children, he had to sell drugs.

       {¶12} Father stated he went to see the GAL thirty days after he was released from

prison. Father testified he attempted to call to make appointments, but did not leave a

message. On cross-examination, Father stated he did not currently have a house to go

home to, does not have a job or income to provide for his children, and has not completed

his case plan.

       {¶13} Alexandra Hokans (“Hokans”) is an intake caseworker at RCCSB. Hokans

first investigated the family in 2014 when there were concerns of drugs use, poor home

conditions, lack of supervision of the children, and domestic violence between Mother

and Father. In 2014, she did not have enough to proceed past a voluntary investigation,
Richland County, Case No. 19CA4                                                            6


so the case was closed. In 2015, Hokans again investigated the family for concerns of

drug use, lack of supervision, and poor home conditions. That case was also closed. In

August of 2015, there was a neglect report filed with concerns of lack of supervision of

the children when they were living with Father and Mother’s whereabouts were unknown.

The family did not want to cooperate with ongoing case services, so the case was closed.

In October of 2015, there were concerns of physical abuse. Father was not willing to

cooperate, so they interviewed the children at school. It appeared as if Father hit one of

the children. Father denied hitting the child. At that point, the agency involved the police.

Father was arrested on an old warrant and he then agreed to a safety plan where he

voluntarily placed the children with a family friend. Hokans testified Father was very hard

to get ahold of and when she met him in person, Father was very resistant to allowing her

access to the home.      Hokans talked with Father about drug and alcohol treatment

services, as well as parenting education. Father told Hokans he was not interested in

those and felt he did not need them. Hokans transferred the case in November of 2015.

       {¶14} Dennis Rickett (“Rickett”) is a caseworker at RCCSB and was the

caseworker for the children. In 2015, there was an accusation of physical abuse of one

of the children by Father. The case plan for Father required a substance use assessment,

emotional and mental health assessment, and to provide for the basic needs of the

children. Rickett offered Father drug and alcohol assessment services and mental health

assessment services, but Father refused. Rickett testified Father is not a fan of RCCSB

and was very reluctant to do anything RCCSB wanted him to do.                Rickett did an

unannounced home visit in February of 2016. Rickett described Father as unwilling to

work with RCCSB. Father would not sign releases for the children or himself. The
Richland County, Case No. 19CA4                                                           7


children were placed in foster care on June 8, 2016. During the course of time that Rickett

was assigned to this case, he has never known Father to be employed. Father told

Rickett the reason he was selling drugs was to get the income to support his children.

Rickett testified Father has not completed or been able to prove that he has completed

all or any of the case plan objectives. Prior to Father’s incarceration, Father attended two

out of four scheduled visits with the children. Father sent a few letters and drawings to

the children while he was in prison.

       {¶15} Rickett testified the children are very dependent on each other.          C.B.

considers himself part of the foster family. Rickett stated since the children were placed

in the temporary custody of RCCSB, they have not returned to the custody of Father.

Rickett talked to the children and they told him they like where they are at and they want

to stay where they are at. At the time he transferred the case, Rickett had not been

successful in locating or identifying any family member that would be willing to take legal

custody of the children. Rickett believes permanent custody to RCCSB is in the best

interest of the children because the children have adjusted well, consider the placement

that they are in as home, they consider the foster family their family, their behavior is

better, and they thrive in school. Rickett testified the placement has had a positive impact

on them.

       {¶16} Rickett attempted to take some drug screens of Father, but Father is not a

fan of the test because he believes they can falsely read. Thus, Father declined to take

the drug screens. The mental health concern Rickett had with regard to Father is Father’s

anger. However, Father would not sign any releases for RCCSB to get any sort of
Richland County, Case No. 19CA4                                                            8


records. When the children were removed from Father’s home, there were concerns

about their behavior. This behavior has improved in foster care.

      {¶17} On cross-examination, Rickett stated he attempted to contact Father every

month and he made at least three attempts every month if he did not make contact with

Father. Father’s attitude remained consistent until he was incarcerated. Rickett met with

Father in prison and Father’s attitude was better. Father was concerned about the

children and asked about them. Rickett did not see drug paraphernalia in Father’s home,

but Father often acted irrational towards Rickett.      Rickett discussed the case plan

requirement that he complete a mental health assessment and follow recommendations

with Father and Father did not feel he needed to let RCCSB know anything about his

mental health issues. After Father was released from prison, Rickett told Father if he

could not get the records from the prison, Father should do the assessments locally again

and obtain a report. Father did provide Rickett with some certificates. When Father told

Rickett he was willing to do what he needed to do to get his children back, Rickett told

him to obtain the records from prison or do the assessments at another agency and follow

their recommendations.

      {¶18} On re-direct, Rickett testified there is nothing in the certificates submitted by

Father that provides him with the information he needs to determine whether or not Father

has done a mental health assessment or drug and alcohol assessment and there is

nothing in there that would satisfy him that Father has successfully completed the case

plan objectives.

      {¶19} K.S. is the foster father to the children. K.S. testified the children are

adjusted into the household and are doing well. When the children first came into the
Richland County, Case No. 19CA4                                                          9


home, the children were acting out. To address those behaviors, K.S. and his wife were

consistent with consequences and rewards.         K.S. and his wife have a very close

relationship with the children. As far as K.S. knows, the children have had no contact

with Father since they have been in his home. However, Father did send a few letters to

the children. K.S. did not read them to children, as he believes it is up to the caseworker

to do that.

       {¶20} Noelle Grate (“Grate”) has been the ongoing caseworker for the children

since January of 2018. Grate met with Father in prison and every month since his release

from prison. Father told Grate when he was released from prison he was going to get an

income and resources. It is Father’s position that he had completed assessments in

prison. However, Grate does not have documentation of any completed assessments.

Grate has certificates from classes he completed in prison, but no mental health or drug

and alcohol assessment. Grate discussed with Father what RCCSB would need to be

satisfied that he successfully completed those case plan objectives. Father told Grate he

was trying to get the records. The documents Father provided do not provide Grate with

enough information to be able to determine whether Father successfully completed either

a mental health assessment or a drug and alcohol assessment.

       {¶21} Grate received a phone call from Father the day after his release from

prison and Father informed her he did not have a phone number or address. Grate

wanted Father to contact the GAL with regards to his request for visitation. Grate had

discussions with Father about service providers to help assist him in completing his case

plan objectives, but Father did not want to use any service providers RCCSB typically
Richland County, Case No. 19CA4                                                           10


uses because Father did not want RCCSB to have the information included in his

assessment.

       {¶22} Grate testified the children are doing very well in the foster home. The

children do not ask about Father. They are very bonded to each other. The children are

very bonded to the foster parents. Grate believes it is in the children’s best interest for

permanent custody to be granted to RCCSB because the children are doing well in

school, they are bonded with the foster parents, and there is no evidence that either

parent has the means to provide for their basic needs.

       {¶23} On cross-examination, Grate testified she had Father do one oral drug

screen and it came back negative. Grate testified that counseling for anger does not

comply with the case plan requirement for a mental health assessment. Grate stated

Father told her he was diagnosed with anxiety, depression, narcissism, and low self-

esteem, but Grate needs a mental health assessment to determine if these are valid

diagnoses.

       {¶24} The GAL stated it is her recommendation that permanent custody be

granted to RCCSB and this is in the children’s best interest. The GAL stated Father has

not made any progress on his case plan, he has no job, no place to live, he would not

sign a release for the information from the prison, he is a stranger to the children, and

they are happy where they are.

       {¶25} On August 21, 2018, the magistrate issued a decision with findings of fact

and conclusions of law. The magistrate made the following findings of fact: following a

substantiated finding of abuse, C.B. and his siblings were placed outside the home prior

to the filing of the complaint in this case with a family friend and that placement concluded
Richland County, Case No. 19CA4                                                          11


when the family friend was no longer willing to care for the children; C.B. has resided

outside of his home continuously since September 29, 2016; the presenting problems

underlying the finding of dependency as to Father were his lack of participation with the

case plan and his incarceration; the case plan required Father to address his substance

abuse, address his mental health issues, and provide for C.B.’s basic needs; the

caseworker met monthly with Father while he was incarcerated; while in prison Father

participated in numerous programs, but none of the programs satisfy the case plan

objectives; Father declined services after his release from prison on April 29, 2018

because he did not want RCCSB to have access to any information about him; Father

has not engaged in the required services; Father is not employed and is homeless; during

the time the children were placed out of Father’s care beginning in 2015, Father refused

to engage in services, failed to comply with visitation, and his whereabouts were often

unknown; in 2016, Father was arrested and was convicted of aggravated possession;

prior to the children being removed from Father’s care, C.B. and his siblings were routinely

left without supervision and there was continued concern about drug use in the home;

Father’s time since the complaint was filed in this case was spent in the penal institution

until April 29, 2018; Father has been in contact with Mother and acknowledges Mother is

using heroin and crack cocaine, and is supporting herself by prostituting herself; Father

has a number of mental health diagnoses, but is not receiving treatment; C.B. is thriving

in foster care and is bonded to the foster family; and both the GAL and caseworker believe

it is in the best interest of C.B. for permanent custody to be granted to RCCSB.

       {¶26} In her conclusions of law, the magistrate found C.B. has been in the

temporary custody of RCCSB for more than twelve months of a consecutive twenty-two
Richland County, Case No. 19CA4                                                          12


month period as he has been in the temporary custody of RCCSB since December of

2016. The magistrate also found, by clear and convincing evidence, that C.B. cannot be

placed with either parent within a reasonable period of time and should not be placed with

his parents because Father, despite reasonable case planning efforts in the form of

mental health and substance abuse referrals and caseworker counseling, has failed

consistently and repeatedly to position himself to assume the responsibilities associated

with the full-time care of his child. Further, Father has demonstrated a lack of commitment

towards his child by his consistent failure to address his own deficiencies. The magistrate

found Father abandoned C.B. because since C.B. was placed in temporary custody of

RCCSB, Father has exercised periods of time exceeding ninety days where he has failed

to visit or otherwise communicate with the child.

       {¶27} The magistrate considered the relevant factors in R.C. 2151.414(D) and

determined as follows with regard to the best interest of the child: (a) C.B.’s last contact

with Father was September 2016 and prior thereto was December 28, 2015, the child has

been in his current foster placement for two years and is comfortable and happy in the

home and is fully integrated into their home; (b) C.B. has no desire to live anywhere else

but with the foster parents; (c) C.B. has been in his current foster placement since

September of 2016 and was placed out of the home in October of 2015; and (d) a legally

secure placement can best be achieved by the permanent custody to RCCSB.

       {¶28} The magistrate additionally found: RCCSB has made reasonable efforts to

eliminate the continued removal of the child from his home and to return the child home

by providing relevant and reasonable case planning and management to assist the

biological parents in accessing applicable and appropriate case plan services; it is not in
Richland County, Case No. 19CA4                                                                  13


the child’s best interest to return to either of his parents, and it is in the child’s best interest

that he remain placed out of the home of his parents. The magistrate granted permanent

custody of C.B. to RCCSB and terminated Father’s parental rights.

       {¶29} Father filed objections to the magistrate’s decision on August 28, 2018. The

trial court issued a judgment entry on January 17, 2019 overruling Father’s objections to

the magistrate’s decision and adopting and approving the magistrate’s decision.

       {¶30} Father appeals the January 17, 2019 judgment entry of the Richland County

Court of Common Pleas, Juvenile Division, and assigns the following as error:

       {¶31} “I. FATHER-APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL IN THAT HIS TRIAL LAWYER FAILED TO PROCURE INFORMATION THAT

MAY HAVE DEMONSTRATED SUBSTANTIAL PLAN COMPLIANCE.

       {¶32} “II. THE COURT ERRED IN FINDING THAT IT WAS IN THE BEST

INTEREST OF THE MINOR CHILD TO BE PLACED IN THE PERMANENT CUSTODY

OF RCCS.

       {¶33} “III. TO THE EXTENT THAT ITS DECISION RELIED ON A FINDING THAT

THE CHILD COULD NOT BE PLACED WITH EITHER PARENT WITHIN A

REASONABLE PERIOD OF TIME AND SHOULD NOT BE PLACED WITH A PARENT,

THE COURT ERRED IN GRANTING PERMANENT CUSTODY BECAUSE IT ERRED IN

FINDING THAT IT COULD NOT PLACE THE CHILD WITH FATHER-APPELLANT

WITHIN A REASONABLE PERIOD OF TIME.”
Richland County, Case No. 19CA4                                                               14

                                         Permanent Custody

       {¶34} “[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).

       {¶35} 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. 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).

       {¶36} 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).

       {¶37} 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
Richland County, Case No. 19CA4                                                            15


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

of a child by a public children services agency.

        {¶38} 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.

        {¶39} 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.

                                                   I.

        {¶40} In his first assignment of error, Father contends he received ineffective

assistance of counsel because his trial lawyer failed to procure information that may have

demonstrated substantial case plan compliance. Father argues his counsel failed to
Richland County, Case No. 19CA4                                                          16


obtain the records from the prison about his mental health assessment and these could

have demonstrated case plan compliance. We disagree with Father.

       {¶41} We have recognized ineffective assistance claims in permanent custody

appeals. In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003-Ohio-4576. Our

standard of review for an ineffective assistance claim in such a situation applies the rule

of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In re

Fell, 5th Dist. Guernsey No. 05 CA 8, 2005-Ohio-5790.

       {¶42} These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). First, we must determine whether counsel’s assistance was ineffective, i.e.,

whether counsel’s performance fell below an objective standard of reasonable

representation and was violative of any of his or her essential duties to the client. If we

find ineffective assistance of counsel, we must then determine whether or not the defense

was actually prejudiced by counsel’s ineffectiveness such that the reliability of the

outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel’s unprofessional error, the outcome of the trial would have

been different. Id. However, “[t]here are countless ways to provide effective assistance

in any given case.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Trial counsel is entitled to a strong presumption that all decisions fall within

the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

693 N.E.2d 267 (1998).

       {¶43} But even if an appellant initially shows that counsel was ineffective, he or

she must then satisfy the second prong of the Strickland test. In other words, it is well-
Richland County, Case No. 19CA4                                                          17


established that a reviewing court “need not determine whether counsel’s performance

was deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

       {¶44} Upon review, we find no basis to conclude appellant was prejudiced under

Strickland by any failure to procure information that may have demonstrated substantial

case plan compliance. As this Court has held, the successful completion of a case plan

is not dispositive on the issue of reunification. In the Matter of A.H., 5th Dist. Richland

No. 18CA96, 2019-Ohio-1509. While it may be in Father’s best interest to complete the

case plan, this is only one factor for the trial court to consider. Id. Where a parent has

participated in his case plan and completed most or all of the plan requirements, a trial

court may still properly determine that such parent has not substantially remedied the

problems leading to agency involvement.        In the Matter of A.L. and J.L., 5th Dist.

Guernsey No. 11 CA 23, 2012-Ohio-481. The GAL stated Father is not in a position to

care for the children. Father is living in a homeless shelter, has no job, no financial

stability, and has no concrete plan when his time at the homeless shelter is up. The social

workers testified Father consistently resisted help and assistance from RCCSB and was

unwilling to work with them. Grate testified Father cannot provide for the basic needs of

the children. Further, specifically with regard to the documents at issue, the GAL testified

Father would not sign releases for her to obtain verification of these programs and

assessments from the prison. Thus, Father failed to take the steps he needed to take to

obtain the records from the prison that may have demonstrated case plan compliance.

       {¶45} Father’s first assignment of error is overruled.
Richland County, Case No. 19CA4                                                            18


                                                 II.

       {¶46} In his second assignment of error, Father contends the trial court erred in

finding it was in the best interest of the children to be placed in the permanent custody of

RCCSB.

       {¶47} 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).

       {¶48} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

the child’s parents, siblings, relatives, foster parents and out-of-home providers, and any

other person who may significantly affect the child; (2) 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; (3) the custodial history of the child and (4) the child’s need

for a legally secure placement and whether that type of placement can be achieved

without a grant of permanent custody; and (e) whether any of the factors in divisions (E)(7)

to (11) of this section apply in relation to the parents and child. No one element is given

greater weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-

1104, 862 N.E.2d 816.
Richland County, Case No. 19CA4                                                           19


       {¶49} A child’s best interests are served by the child being placed in a permanent

situation that fosters growth, stability, and security. In re Patterson, 134 Ohio App.3d 119,

730 N.E.2d 439 (9th Dist. 1999); In re Adoption of Ridenour, 61 Ohio St.3d 319, 574

N.E.2d 1055 (1991). The court must consider all of the elements in R.C. 2151.414(D) as

well as other relevant factors. There is not one element that is given greater weight than

the others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio-5513,

857 N.E.2d 532. In re Schafer made it clear that a trial court’s statutory duty, when

determining whether it is in the best interest of a child to grant permanent custody to an

agency, does not include finding by clear and convincing evidence that no suitable relative

was available for placement. Id. R.C. 2151.414 “requires the court to find the best option

for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a)

through (d). The statute does not make the availability of a placement that would not

require a termination of parental rights an all-controlling factor. The statute does not even

require the court to weigh that factor more heavily than other factors.” Id. at 111.

       {¶50} The focus of the “best interest” determination is upon the child, not the

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a

grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d

309, 315, 642 N.E.2d 424 (8th Dist. 1994).

       {¶51} We find the trial court did not err in finding that granting permanent custody

to RCCSB was in the best interest of C.B. The GAL testified Father is not in a position to

care for the children, as he is living in a homeless shelter, has no job, and no financial

stability. Rickett, Grate, and Hokans’ testimony demonstrates that Father consistently

resisted help and assistance from RCCSB and was unwilling to work with them on his
Richland County, Case No. 19CA4                                                           20


case plan requirements. Father confirmed he has no home, no income to provide for the

children, and has not completed his case plan. Father testified he sold drugs and ended

up in prison when he could not afford to pay the bills. Rickett testified Father told him he

sold drugs to get income to support the children. Rickett also testified Father has not

completed his case plan. Grate testified Father is not able to provide for the basic needs

of the children.

       {¶52} The GAL stated the children are doing well and are bonded with the foster

family. Rickett testified the children want to stay where they are at. Rickett believes

granting permanent custody to RCCSB is in the best interest of the children because the

children are adjusted well, the placement has had a positive impact on them, they

consider the foster home their home, their behavior is improved, and they are thriving in

school. Grate testified the children are doing well and are bonded to the foster family.

Grate believes is in the best interest of the children for permanent custody to be granted

to RCCSB. The GAL also believes is in the best interest of the children for permanent

custody to be granted to RCCSB.

       {¶53} We find the trial court properly considered and weighed the factors in R.C.

2151.414(D) and the trial court’s conclusion that the granting of permanent custody to

RCCSB is in the best interest of C.B. is supported by competent and credible evidence.

Father’s second assignment of error is overruled.

                                                III.

       {¶54} In his third assignment of error, Father argues that, to the extent the trial

court’s decision relied on a finding that the children could not be placed with Father within
Richland County, Case No. 19CA4                                                           21


a reasonable period of time, the trial court erred in finding it could not place the children

with Father within a reasonable period of time.

       {¶55} We first note the trial court determined that, pursuant to R.C.

2151.414(B)(1)(d), C.B. had been in the temporary custody of the agency for a period of

time in excess of twelve of the prior twenty-two consecutive months. As findings under

R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, each is

independently sufficient to use as a basis to grant the motion for permanent custody. In

re Daltoni, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007-Ohio-5805. This finding alone,

in conjunction with a best interest finding, is sufficient to support the grant of permanent

custody. In re Calhoun, 5th Dist. Stark No. 2008CA00118, 2008-Ohio-5458.

       {¶56} However, with regards to C.B. and even if we considered Father’s argument

with regards to C.B., the trial court did not commit error in determining the child cannot

be placed with Father at this time or within a reasonable period of time.

       {¶57} Under R.C. 2151.414(E), the trial court must consider all relevant evidence

before making this determination. The trial court is required to enter such a finding if it

determines, by clear and convincing evidence, that one or more of the factors enumerated

in R.C. 2151.414(E)(1) through (16) exist with respect to each of the child’s parents. The

relevant portions of R.C. 2151.414(E) are as follows:

              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
Richland County, Case No. 19CA4                                                         22


      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. * * *

      {¶58} A review of the record supports the trial court’s conclusion that C.B. cannot

be placed with Father within a reasonable time. Rickett, Grate, and Hokans testified

Father has continually and consistently resisted help and assistance from RCCSB and

has been unwilling to work with them in completing his case plan, despite their efforts.

Throughout most of the case, Father was incarcerated. The GAL and Grate testified

Father is not in a position to take care of the children and cannot provide for their basic

needs, as he is homeless, has no job, and no financial stability. Further, though Father

thinks he might have a job in Cleveland, he was unable to provide details of what the

income would be and testified he would likely have to sleep at the business for several

months. Father has no concrete plan for when his time at the homeless shelter is up.

The concerns that the social workers had at the outset of the case still remain.

      {¶59} We find there is competent and credible evidence to support the trial court’s

finding that C.B. cannot be placed with Father within a reasonable amount of time

because the delay in completing the case plan objectives and the failure of Father to

reduce the risks posed when the child was first removed are directly attributable to the

actions and inactions of Father. Father’s third assignment is overruled.
Richland County, Case No. 19CA4                                                         23


      {¶60} Based on the foregoing, we find the trial court did not abuse its discretion in

granting permanent custody of C.B. to RCCSB.

      {¶61} Father’s assignments of error are overruled and the January 17, 2019

judgment entry of the Richland County Court of Common Pleas, Juvenile Division, is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur
