[Cite as In re I.M., 2011-Ohio-561.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

IN THE MATTER OF:                : CASE NO. 10CA36
                                 :
I.M.                             : Released: January 28, 2011
                                 : DECISION AND JUDGMENT
Adjudicated Dependant Child.     : ENTRY
_____________________________________________________________
                           APPEARANCES:

William R. Biddlestone, William R. Biddlestone, Co., LPA, Athens, Ohio,
for Appellant.

C. David Warren, Athens County Prosecuting Attorney, and George
Reitmeier, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1}       Appellant Mark McClelland appeals the decision of the

Athens County Court of Common Pleas, Juvenile Division, awarding

permanent custody of his daughter, I.M., to Athens County Children

Services. McClelland argues there was error below in that the trial court

abused its discretion in deciding to terminate his parental rights. We

disagree. The record below shows that I.M. could not or should not have

been placed with McClelland in a reasonable time. Further, there was clear

and convincing evidence to support the trial court’s finding that it was in

I.M.’s best interest to award permanent custody to Children Services.
Athens App. No. 10CA36                                                                   2


Accordingly, we overrule McClelland’s assignment of error and affirm the

trial court’s decision.

                                                  I. Facts

           {¶2}       Appellant Angel Kasler and Mark McClelland are the

biological parents of I.M. 1 I.M. was born on October 21, 2009, and was

approximately six months old at the time of the trial court's permanent

custody decision.

           {¶3}       On October 23, 2009, Athens County Children Services

obtained emergency custody of I.M. and filed a complaint requesting an

initial disposition of permanent custody. The trial court held adjudication

hearings on the matter in November and December of 2009. Both parents

were under indictment for felony drug offenses at the time of the hearings.

At those hearings, the court heard evidence that Kasler had mental illness

issues, and that Kasler and McClelland both had substance-abuse issues.

Further, two months before I.M. was born, drugs and drug paraphernalia

were found in Kasler and McClelland's home and the home itself was in a

filthy condition. At that same time, McClelland tested positive for opiates.

In January of 2010, the trial court found I.M. to be a dependent child.




1
    Angel Kasler has appealed the trial court’s permanent custody decision separately.
Athens App. No. 10CA36                                                         3


      {¶4}     After the finding of dependency, the trial court held

disposition hearings on the issue of permanent custody in February of 2010.

At the conclusion of those hearings, the trial court took the matter under

advisement. On June 9, 2010, the trial court granted permanent custody of

I.M. to Athens County Children Services and terminated the parental rights

of both Angel Kasler and Mark McClelland. Following that decision, Kasler

timely filed the current appeal.

                           II. Assignment of Error
      THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING
      THAT THE PARENTAL RIGHTS OF APPELLANT SHOULD BE
      TERMINATED.
                             III. Legal Analysis

      {¶5}     An appellate court will not overrule a trial court’s decision

regarding permanent custody if there is competent and credible evidence to

support the judgment. In re McCain, 4th Dist. No. 06CA654, 2007-Ohio-

1429, at ¶8. “If the trial court’s judgment is supported by some competent,

credible evidence going to all the essential elements of the case, an appellate

court must affirm the judgment and not substitute its judgment for that of the

trial court.” In re Buck, 4th Dist. No. 06CA3123, 2007-Ohio-1491, at ¶7.

Therefore, an appellate court’s review of a decision to award permanent

custody is deferential. McCain at ¶8.
Athens App. No. 10CA36                                                           4


      {¶6}     “An agency seeking permanent custody bears the burden of

proving its case by clear and convincing evidence.” In re Perry, 4th Dist.

Nos. 06CA648, 06CA649, 2006-Ohio-6128, at ¶39. Clear and convincing

evidence has been defined as “[t]he measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the

allegations sought to be established. It is intermediate, being more than a

mere preponderance, but not to the extent of such certainty as required

beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” McCain at ¶9, citing In re Estate of Haynes (1986), 25 Ohio

St.3d 101, 103-04, 495 N.E.2d 23.

      {¶7}     In his sole assignment of error, Mark McClelland argues that

the trial court abused its discretion in terminating his parental rights

concerning I.M. Accordingly, we first state the appropriate test a trial court

must apply in ruling on a motion for permanent custody.

      {¶8}     Under R.C. 2151.414, an agency seeking permanent custody

must meet a two-part test before parental rights may be terminated and

permanent custody awarded. In re Schaefer, 111 Ohio St.3d 498, 2006-

Ohio-5513, 857 N.E.2d 532, at ¶31. Under the first part of the test, one or

more of conditions listed in R.C. 2151.414(B)(1)(a) through (d) must apply.

R.C. 2151.414(B)(1)(a) states:
Athens App. No. 10CA36                                                             5


      {¶9}     “The child is not abandoned or orphaned, has not 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 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.”

      {¶10} In determining whether a child cannot or should not be placed

with the parents in a reasonable time, the trial court must refer to

2151.414(E). Under that section, “If the court determines, by clear and

convincing evidence * * * 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 should not be placed

with either parent[.]” The section then lists 16 factors, including the

following: (E)(2) - “Chronic mental illness, chronic emotional illness,

mental retardation, physical disability, or chemical dependency of the parent

that is so severe that it makes the parent unable to provide an adequate

permanent home for the child at the present time and, as anticipated, within

one year after the court holds the hearing;” and (E)(16) - “Any other factor

the court considers relevant.” R.C. 2151.414(E).
Athens App. No. 10CA36                                                           6


      {¶11} In his brief, McClelland states that though the trial court

found that one of the sixteen factors listed in R.C. 2151.414(E) applied to

Angel Kasler, none of the factors applied to himself. He stated, “The Court

failed to mention that none of the factors applied to Appellant, Mark

McClelland, nor could it have done so based upon the testimony at hearing.

The record is simply bereft of any such evidence with regard to Mark

McClelland regarding these factors." This assertion is patently incorrect.

      {¶12} First, the trial court's decision clearly states that three of the

factors listed in R.C. 2151.414(E), not one, applied to Angel Kasler. In that

same section of its decision, the court also clearly finds that (E)(2) and

(E)(16) applied to McClelland. Under (E)(2), the decision states: “Father’s

substance abuse reached the criminal level, and even while under

community control for earlier criminal activity and indictment for more

recent drug activity, he too is refusing random screens and unable to seek or

benefit from rehabilitative treatment. The Court concludes that he will be

unable to provide a stable home within the next year as well.”

      {¶13} In our view, the trial court's findings were supported by the

record. As such, the court had clear and convincing evidence to determine

that, under 2151.414(E)(2) and (E)(16), I.M. should not or could not be

placed with McClelland in a reasonable time. Accordingly, the first part of
Athens App. No. 10CA36                                                          7


the two-part permanent custody test was satisfied. We now turn to the

second part, whether permanent custody was in the best interest of the child.

      {¶14} An agency seeking permanent custody must demonstrate by

clear and convincing evidence that such action is in the best interest of the

child. R.C. 2151.414(D)(1) sets forth the factors a court must consider in the

best interest analysis:

      {¶15} “(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;

      {¶16} (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;

      {¶17} (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 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
Athens App. No. 10CA36                                                           8


2151.413 of the Revised Code, the child was previously in the temporary

custody of an equivalent agency in another state;

      {¶18} (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;

      {¶19} (e) Whether any of the factors in divisions (E)(7) to (11) of

this section apply in relation to the parents and child.”

      {¶20} Divisions (E)(7) to (11) include: (7) whether the parent has

been convicted of a number of listed offenses; (8) whether the parent has

repeatedly withheld medical treatment or food; (9) whether the parent has

placed the child at substantial risk of harm two or more times due to

substance abuse and has rejected treatment two or more times or refused to

participate in treatment; (10) whether the parent has abandoned the child;

(11) whether the parent has had parental rights previously terminated.

      {¶21} The trial court addressed each of the relevant factors of the

best interest analysis. These factors included that at the time of the court's

decision, I.M. was six months old. She had spent her entire life in foster

care, having been placed with Children Services under an emergency order

immediately after her birth. The court noted that McClelland's supervised

visitations with I.M. went well, “with obvious affection being noted.” Also,
Athens App. No. 10CA36                                                        9


McClelland regularly attended visitation appointments with I.M., even

though Children Services did not help him with transportation. However,

for the following reasons, the court determined that I.M.’s need for a legally

secure placement could not be achieved without granting permanent custody

to Children Services.

      {¶22} The trial court noted that McClelland has an extensive history

of both drug abuse and criminal activity. In January 2009, after surveillance

revealed that numerous known drug dealers and drug users were frequenting

the residence of McClelland and Kasler, police executed a search warrant at

the home. During the search, police found heroin, cocaine and various drug

paraphernalia. As a result, both McClelland and Kasler were indicted for

felony drug offenses. McClelland's drug case was still pending at the time

of I.M.’s permanent custody hearing.

      {¶23} Though McClelland testified that the last time he used illegal

drugs was in March or April of 2009, the evidence casts strong doubt on that

assertion. In August of 2009, two months before I.M.’s birth, during a

surprise inspection at McClelland and Kasler's home by the Adult Parole

Authority, syringes and other drug paraphernalia were found at the

residence. And during that same visit, McClelland tested positive for

opiates. During his testimony at the permanent custody hearing, though he
Athens App. No. 10CA36                                                         10


claimed he tested positive because he was taking doctor prescribed Vicodin,

he could not explain why he was crushing, liquefying and injecting the drug.

Trying to explain the presence of some of the drug paraphernalia,

McClelland testified, “The burnt pop cans that was from where I would

actually put the drug on the pop can. * * * I was just, it was just, I can't

really explain why I done [sic]. It was stupid.” Again, this incident took

place only two months before I.M. was born. Additionally, since I.M.’s

birth, McClelland has, on at least one occasion, refused to take a drug

screen. Further, he has refused to provide the necessary medical releases

which would allow Children Services and the court to verify his claims that

he no longer abuses illegal drugs.

      {¶24} Finally, McClelland has been convicted of felony non-support

regarding an older child of his. At the time of I.M.’s permanent custody

hearing, he owed approximately $22,000 in back child support. And during

the time of the August 2009 incident, in which the Adult Parole Authority

found evidence of drug use in McClelland and Kasler’s home, McClelland

was on community control for his felony non-support conviction. The case

against him for his violation of community control had not been settled at

the time of I.M.’s permanent custody hearing.
Athens App. No. 10CA36                                                        11


         {¶25} Our review of the record below, including the transcripts of

the permanent custody hearings, shows that each of the trial court's findings

were fully supported. As such, the trial court had clear and convincing

evidence that awarding permanent custody to Children Services was in

I.M.’s best interest, we overrule Mark McClelland’s sole assignment of

error.

                                                 JUDGMENT AFFIRMED.
Athens App. No. 10CA36                                                         12


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J. and Kline, J.: Concur in Judgment and Opinion.

                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
