[Cite as In re D.K., 2012-Ohio-2605.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: D.K.                                           C.A. Nos.      26272
       C.S.                                                          26278
       C.S.
       C.S.
       C.K.                                           APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. DN 10-5-356
                                                                 DN 10-5-357
                                                                 DN 10-5-358
                                                                 DN 10-5-359
                                                                 DN 10-5-360


                                 DECISION AND JOURNAL ENTRY

Dated: June 13, 2012



        DICKINSON, Judge.

                                         INTRODUCTION

        {¶1}     This case concerns an appeal from an order placing five children in the permanent

custody of the Summit County Children Services Board. In determining that the children could

not or should not be placed with a parent, the trial court stated its reliance on the fact that the

mother had been convicted of a predicate offense. Because there is no evidence that the mother

had been convicted of a predicate offense, the order granting permanent custody of the children

to Children Services is reversed.

                                         BACKGROUND

        {¶2}     Leslie G. is the mother of five children: C.S., born February 16, 1999; C.S., born

July 21, 2000; C.S., born August 26, 2002; C.K., born January 18, 2005; and D.K., born
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December 4, 2008. The children have two different fathers. Michael K., who has appealed, is

the father of the two younger children. The father of the three older children is not a party to this

appeal.

          {¶3}   On May 9, 2010, Akron police officers took custody of the children under Rule 6

of the Ohio Rules of Juvenile Procedure. The officers had gone to the home where Leslie G.,

Michael K., and the five children were living to investigate a report of drugs in the home. They

arrested Michael K. on an outstanding warrant and searched the home, finding drug

paraphernalia associated with the manufacture of methamphetamine. They also arrested Leslie

G. and charged her with several drug offenses as well as five counts of child endangering. The

police notified the Children Services Board, and the agency filed complaints in juvenile court the

next day alleging that the children were abused, neglected, and/or dependent. Following

hearings, the trial court adjudicated all five children dependent and neglected and granted

temporary custody to the agency.

          {¶4}   On February 9, 2011, Children Services moved for permanent custody. After a

hearing, the trial court granted the agency’s motion. Leslie G. and Michael K. have appealed

from that judgment.

                                     FIRST PRONG FINDING

          {¶5}   Leslie G. and Michael K. have both argued that the trial court incorrectly granted

permanent custody of the children to the agency because it failed to make a valid finding on the

first prong of the permanent custody test. Before a trial court may terminate parental rights, it

must find clear and convincing evidence of both prongs of the permanent custody test: (1) that

the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12

months of a consecutive 22-month period, or that the child cannot be placed with either parent
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within a reasonable time or should not be placed with either parent, based on an analysis under

Section 2151.41.4(E) of the Ohio Revised Code; and (2) that the grant of permanent custody to

the agency is in the best interest of the child, based on an analysis under Section 2151.41.4(D) of

the Ohio Revised Code. See R.C. 2151.41.4(B)(1) and 2151.41.4(B)(2); see also In re William

S., 75 Ohio St. 3d 95, 99 (1996).

       {¶6}    Regarding the first prong of the permanent custody test, the trial court found that

the children could not be placed with either parent within a reasonable time or should not be

placed with either parent. See R.C. 2151.41.4(B)(1)(a). In support of that finding, the trial court

relied on Section 2151.41.4(E)(12) for each of the fathers. That factor applies when a parent is

incarcerated at the time of the filing of the motion for permanent custody or dispositional hearing

and will not be available to care for the child for at least eighteen months.            See R.C.

2151.41.4(E)(12). Neither Leslie G. nor Michael K. has challenged that finding. For the mother,

the trial court relied on Section 2151.41.4(E)(6). This factor applies if a parent has been

convicted of or pleaded guilty to specific offenses. See R.C. 2151.41.4(E)(6). Both Leslie G.

and Michael K. have challenged this finding.

       {¶7}    Leslie G. was convicted of violating Section 2919.22(B)(6) of the Ohio Revised

Code, child endangering, by allowing a child to be within 100 feet of the illegal manufacture or

cultivation of controlled substances. See R.C. 2919.22(B)(6). Although subsections (A) and (C)

of Section 2919.22 are offenses included within Section 2151.41.4(E)(6), subsection (B) is not:

       The parent has been convicted of or pleaded guilty to an offense under division
       (A) or (C) of section 2919.22 . . . and the child or a sibling of the child was a
       victim of the offense . . . and the parent who committed the offense poses an
       ongoing danger to the child or a sibling of the child.

The General Assembly has, thus, specifically excluded subsection (B) of Section 2919.22 from

the operation of the statute. They have done so by virtue of the fact that the statute under which
                                                4


Mother was convicted is not included in the affirmative listing of statutes in Section

2151.41.4(E)(6). The trial court made no other findings in satisfaction of the first prong of the

permanent custody test that might alternatively support its judgment.

       {¶8}    Children Services has made several arguments in reply. First, the agency has

suggested that neither the mother nor the father objected to this issue before the trial court and

that they have, therefore, failed to preserve the issue for review. Because the error did not occur

until the court issued its final order through its written judgment entry, however, the parents had

no reasonable opportunity to enter an objection before the trial court.        The agency’s first

argument is without merit.

       {¶9}    Second, Children Services has contended that the mother’s conviction under

Section 2919.22(B)(6) does, in fact, come within the reach of Section 2151.41.4(E)(6). In

support of this contention, the agency has made two statutory arguments. The first argument is

that the present exclusion of subsection (B) from the operation of Section 2151.41.4(E)(6) is

somehow meaningless because a pre-1998 version of Section 2151.41.4(E)(6) included the

entirety of the pre-1998 version of Section 2919.22. Children Services has failed to explain the

significance of this claim, and we fail to see any. The interplay between outdated versions of

two statutes is irrelevant to our present concerns. In fact, the specific section under which the

mother was convicted, Section 2919.22(B)(6), was not even enacted by the General Assembly

until 2003. See Am.Sub.S.B. No. 58, effective Aug. 11, 2004. Accordingly, Children Services’

reference to the sweep of Section 2151.41.4(E)(6) prior to 1998 bears no relevance to the statute

under which the mother was convicted in 2010. Section 2919.22(B)(6) has never been within the

coverage of Section 2151.41.4(E)(6).
                                                    5


        {¶10} In addition, the agency has argued that, because a different part of Section

2919.22(B), specifically paragraph (2), is referenced by a different “E” factor, Section

2151.41.4(E)(7), that, therefore, all violations of Section 2919.22(B) should be included under

Section 2151.41.4(E)(6). The agency has, in effect, argued that, because Section 2919.22(B)

includes some bad parenting behaviors, the entirety of that section should be incorporated under

Section 2151.41.4(E)(6) despite the statute unambiguously excluding it.               The argument is

unreasonable and illogical.       In creating the statutory scheme for abused, neglected, and

dependent children under Chapter 2151, the General Assembly saw fit to address the behaviors

in Section 2919.22(B) in other ways. It is beyond the reach of this Court to rearrange a statutory

reference by placing it under an entirely different section of the statute. Section 2151.41.4(E)(6)

is clear, as written, and the “first rule of statutory construction is that a statute which is clear is to

be applied, not construed.” Vought Indus. Inc. v. Tracy, 72 Ohio St. 3d 261, 265 (1995). “The

Ohio General Assembly has selected the language of the statute and our obligation is to employ

it as written.” R.W. Sidley Inc. v. Limbach, 66 Ohio St. 3d 256, 257 (1993). The agency’s two

statutory arguments are without merit.

        {¶11} Third, the agency has contended that any error is harmless because the trial

court’s overarching determination that the children could not and should not be returned to their

mother is supported by sufficient evidence. One difficulty with this argument is that the trial

court made this finding in specific and sole reliance on Section 2151.41.4(E)(6). The trial

court’s reliance was erroneous, and this Court cannot enter a different finding. Doing so would

amount to this Court making a finding in the first instance, an act that would exceed our

jurisdiction as an appellate court. See Ohio Constitution, Article IV, Section 3(B)(2). It is not

only the right, but the duty of the trier of fact to initially weigh the evidence and to determine
                                                  6


whether to accept or reject the evidence before it. Ace Steel Baling Inc. v. Porterfield, 19 Ohio

St. 2d 137, 138 (1969). Correspondingly, it is not the role of an appellate court to act as a fact

finder, weighing evidence and reaching initial legal conclusions. See e.g. In re E.T., 9th Dist.

No. 22720, 2005-Ohio-6087, ¶ 14 (appeals court cannot enter a finding under Section

2151.41.4(E) if it was not made in the first instance by the trial court); In re M.B., 9th Dist. No.

21760, 2004-Ohio-597, ¶ 8-10 (appeals court cannot find that permanent custody is in the best

interest of the child, even though arguably implicit from the judgment entry).

       {¶12} Finally, Children Services has suggested that the trial court’s reference to “(E)(6)”

in its judgment entry may have been a typographical error that this Court should correct because

the trial court may have intended to rely on “(E)(16)” instead. It is, however, not at all apparent

that this is a typographical error. If the agency believed that was the case, it should have

promptly sought a correction by the trial court. This Court cannot assume a typographical error

upon a critical matter, particularly if there is no record support for such a conclusion. In fact, the

record before this Court reflects that this is not likely a typographical error because the agency

alleged “(E)(6)” as a first prong ground in its motion for permanent custody, neglecting,

however, to introduce any evidence in support of that allegation at trial. Upon these facts, any

“correction” changing the finding from “(E)(6)” to “(E)(16)” would amount to improper fact-

finding by this Court. The mother’s first assignment of error and the father’s sole assignment of

error are sustained.

                                          CONCLUSION

       {¶13} The mother’s first assignment of error and the father’s sole assignment of error

are sustained. The mother’s second assignment of error is moot and is overruled on that basis.

See App.R. 12(A)(1)(c). In the absence of any valid finding in support of the first prong of the
                                                 7


permanent custody test, the judgment of the trial court granting permanent custody of the

children to the agency must fail. The judgment of the Summit County Common Pleas Court,

Juvenile Division, is reversed and the cause is remanded for further proceedings.

                                                                              Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



WHITMORE, P. J.
CARR, J.
CONCUR
                                          8


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

ANGELA KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

GINA D’AURELIO, Attorney at Law, for Appellee.

LINDA BENNETT, Guardian ad Litem.
