[Cite as In re J.S., 2018-Ohio-385.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 105344




                                       IN RE: J.S., III

                                [Appeal By J.S., Jr., Father]



                                        JUDGMENT:
                                         AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                         Juvenile Division
                                     Case No. AD 14911228


        BEFORE: E.A. Gallagher, A.J., Blackmon, J., and Jones, J.

        RELEASED AND JOURNALIZED: February 1, 2018
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Cheryl Rice
Assistant Prosecuting Attorney
Cuyahoga County Department of Children and Family Services
3955 Euclid Avenue, 3rd Floor
Cleveland, Ohio 44115

BY: Anthony R. Beery
Assistant Prosecuting Attorney
4261 Fulton Parkway
Cleveland, Ohio 44144

FOR C.L.

Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
EILEEN A. GALLAGHER, A.J.:

       {¶1} Defendant-appellant, J.S., Jr., appeals from the Cuyahoga County Juvenile

Court’s decision granting permanent custody of his son, J.S., III (“J.S.”), to the Cuyahoga

County Department of Children and Family Services (“CCDCFS”). For the following

reasons, we affirm.

       Factual and Procedural Background

       {¶2} J.S. was born on September 1, 2014.                 CCDCFS filed a complaint for

dependency and permanent custody of J.S. on September 3, 2014. The complaint listed

appellant as the “alleged father” of J.S.1 and stated that he and J.S.’s mother lacked a

stable and safe environment to provide for J.S.’s needs.             The complaint further stated

that appellant had previously had his parental rights for another child involuntarily

terminated because he was convicted of child endangering.              Appellant was also alleged

to have not consistently addressed a diagnosis of bipolar anxiety disorder and depression.

 The juvenile court held a hearing on the matter on the same date and granted

preadjudicatory emergency temporary custody to CCDCFS.

       {¶3} CCDCFS’s case plan was for reunification of J.S. with his parents. For

appellant, the case plan included establishing a stable home, improving his parenting

skills, establishing that he could meet the basic needs of J.S. and addressing mental health

concerns.


       1
        The record reflects that appellant subsequently established paternity.
          {¶4} On March 3, 2015 the trial court granted a motion by CCDCFS to amend the

complaint. The amended complaint retained the above allegations pertaining to appellant.

 Appellant admitted the allegations of the amended complaint on the same date and the

trial court adjudicated J.S. to be a dependent child.   The case proceeded to a disposition

hearing on October 24, 2016 where the following facts were adduced.

          {¶5} Dr. Amy Justice, a psychiatric evaluator for the juvenile court’s diagnostic

clinic testified that appellant had been diagnosed with bipolar disorder and has

prescriptions of Cymbalta and Abilify for the treatment of the condition. Although

appellant maintained that he consistently takes his medications,           records indicated

periods of noncompliance.       Dr. Justice testified that this is a concern because bipolar

disorder is best responsive to keeping a consistent level of medication.

          {¶6} Appellant had previously had his parental rights terminated as to another

child, K.C. Appellant indicated to Dr. Justice that he had spanked, but not beaten, K.C.

In addition to the parental rights termination of that child, appellant was convicted of

child endangering in 2010.

          {¶7} Brittany Roppel, a therapist and licensed social worker with Recovery

Resources, testified that she worked with appellant twice a month on his anger issues.

Roppel reported that appellant had made progress in managing his anger and using coping

skills.

          {¶8} Mi-Lin Tate, the ongoing social worker assigned to the case, testified that

appellant had a history of not being able to keep consistent housing and that the recent
termination of appellant’s relationship with J.S.’s mother left CCDCFS with insufficient

time to ascertain whether appellant would be able to maintain his current housing on his

income alone.

       {¶9} Tate also testified that appellant had failed to bring food to his parental visits

and had trouble interacting with J.S. Tate explained, “ when I say trouble, I really mean

that he doesn’t interact with [J.S.]. He has to be prompted to do so.” Tate testified that

appellant does not want to get out of his chair to interact with J.S.            Furthermore,

appellant does not interact with J.S.’s siblings and doesn’t like the fact that J.S. is tightly

bonded with them. Tate stated that when J.S. plays with his siblings, appellant gets very

upset. Appellant has forced J.S.’s mother to separate J.S. from his siblings during visits

which has made the visits “destructive.” Tate testified that appellant gets so upset at the

interaction that he has threatened to leave the visits if J.S. engages with his siblings.

       {¶10} Tate testified that appellant had not completed a parenting course during the

pendency of this case and concluded that it was not in the best interests of the children to

remove them from their foster home.       Tate stated that permanent custody was in the best

interests of the children because they are presently in a loving and safe foster environment

and J.S.’s parents are unable to consistently meet his needs.

       {¶11} Arthur Falls testified that he and his wife are the foster parents of J.S. and

his three biological siblings. J.S. was placed in Fallses’ custody at birth and has resided

with them for two years. Falls stated that J.S. is tightly bonded to his sister C.C. and

loves playing with his brother A.C. Falls described the four siblings as a family and
testified that he loves the children and wishes to adopt them. The Falls have a four

bedroom home with one and a half baths on half an acre of land with swings, a swimming

pool and a playground across the street. Falls testified that he would drive the children

for up to three hours, round trip to comply with the visits but two or three times none of

the parents had appeared.     He also testified that most of time the parents failed to meet

their responsibility to provide food despite the fact that the visits occurred at dinner time.

       {¶12} Finally, the guardian ad litem, Carla Golubovic, recommended that

permanent custody was in the best interests of J.S. Golubovic stated that the children all

have a strong bond of attachment to their foster family and one another. Golubovic did

not believe that appellant would be able to provide for J.S. appropriately due to

appellant’s inability to fully engage in interacting with J.S., inconsistent appearances at

visitations, anger issues and his prior termination of parental rights for another child.

Golubovic testified that the Falls have a lovely, child-centered home and that the children

are very happy.

       {¶13} On December 5, 2015 the trial court issued a journal entry terminating J.S.’s

predispositional emergency temporary custody, granting permanent custody of J.S. to

CCDCFS and terminating appellant’s parental rights pursuant to R.C. 2151.353 and

2151.414.

       {¶14} After the present appeal was instituted we remanded the case to the trial

court for compliance with the court’s decision in In re: R.G., 8th Dist. Cuyahoga No.

104434, 2016-Ohio-7897 (holding that a trial court has a duty under the Indian Child
Welfare Act (“ICWA”) to direct an inquiry to the participating putative parents

concerning potential Nativ e American ancestry). See also Bureau of Indian Affairs,

Guidelines    for   Implementing     the   Indian   Child    Welfare    Act   (Dec.    2016),

https://perma.cc/3TCH-8HQM (stating that State courts must ask each participant in an

emergency or voluntary or involuntary child-custody proceeding whether the participant

knows or has reason to know that the child is an Indian child); 81 Fed.Reg. 96476. The

trial court complied with our limited remand and issued a journal entry finding that no

Native American ancestry has been established.

       Law and Analysis

       {¶15} In his sole assignment of error, appellant argues that the trial court’s

decision to award permanent custody to CCDCFS was against the manifest weight of the

evidence because it was not supported by clear and convincing evidence.

       {¶16} “All children have the right, if possible, to parenting from either [biological]

or adoptive parents which provides support, care, discipline, protection and motivation.”

In Re: J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In Re:

Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Likewise, a

“parent’s right to raise a child is an essential and basic civil right.” In re N.B., 8th Dist.

Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d 46, 48,

679 N.E.2d 680 (1997). By terminating parental rights, the goal is to create “a more stable

life” for dependent children and to “facilitate adoption to foster permanency for children.”

In re N.B. at ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio
App. LEXIS 7860, *5 (Aug. 1, 1986). However, termination of parental rights is “the

family law equivalent of the death penalty in a criminal case.” In re J.B. at ¶ 66, quoting

In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. It is, therefore,

“an alternative [of] last resort.” In re Gill, 8th Dist. Cuyahoga No. 79640,

2002-Ohio-3242, ¶ 21.

      {¶17} An agency may obtain permanent custody of a child in two ways. In re E.P.,

12th Dist. Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An

agency may first obtain temporary custody of the child and then file a motion for

permanent custody. See R.C. 2151.413. Or, an agency may request permanent custody as

part of its original abuse, neglect, or dependency complaint, which is what the agency did

in the present case. See R.C. 2151.27(C) and 2151.353(A)(4).

      {¶18} In cases of abuse, neglect, and dependency, a trial court may enter a

disposition of permanent custody of a child if the court determines by clear and

convincing evidence that the child cannot or should not be placed with either parent

within a reasonable period of time and that permanent custody is in the child’s best

interest. See R.C.2151.353(A)(4) and 2151.414(D), (E).

      {¶19} “Clear and convincing evidence” is that measure or degree of proof that is

more than a “preponderance of the evidence,” but does not rise to the level of certainty

required by the “beyond a reasonable doubt” standard in criminal cases. In re M.S., 8th

Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing In re Awkal, 95

Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon
Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It

“produces in the mind of the trier of fact a firm belief or conviction as to the facts sought

to be established.” In re M.S. at ¶ 18; see also In re J.F., 11th Dist. Trumbull No.

2011-T-0078, 2011-Ohio-6695, ¶ 67 (a permanent custody decision “based on clear and

convincing evidence requires overwhelming facts, not the mere calculation of future

probabilities”) (emphasis omitted), quoting In re A.J., 11th Dist. Trumbull No.

2010-T-0041, 2010-Ohio-4553, ¶ 76. “An appellate court will not reverse a juvenile

court’s termination of parental rights and award of permanent custody to an agency if the

judgment is supported by clear and convincing evidence.” In re Jacobs, 11th Dist.

Geauga No. 99-G-2231, 2000 Ohio App. LEXIS 3859, *11 (Aug. 25, 2000), citing In re

Taylor, 11th Dist. Ashtabula No. 97-A-0046, 1999 Ohio App. LEXIS 2620 (June 11,

1999).

         {¶20} The trial court’s determination of whether the child cannot or should not be

placed with either parent is guided by R.C. 2151.414(E). This section sets forth 16 factors

that the trial court may consider in its determination. It provides that if the trial court

finds by clear and convincing evidence that any of the 16 factors exists, the court must

enter a finding that the child cannot or should not be placed with either parent within a

reasonable period of time. In re D.J., 8th Dist. Cuyahoga No. 88646, 2007-Ohio-1974, ¶

64.

         {¶21} In this instance the trial court made the following findings pursuant to R.C.

2151.414(E)(1), (2), (4) and (11):
      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.
      The chronic mental illness, chronic emotional illness, intellectual disability,
      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.

      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.
      The parent has had parental rights involuntarily terminated with respect to a
      sibling of the child pursuant to this section or section 2151.353 or 2151.415
      of the Revised Code, or under an existing or former law of this state, any
      other state, or the United States that is substantially equivalent to those
      sections, and the parent has failed to provide clear and convincing evidence
      to prove that, notwithstanding the prior termination, the parent can provide
      a legally secure permanent placement and adequate care for the health,
      welfare, and safety of the child.

      {¶22} There is no dispute that appellant had a prior parental rights termination to

support the trial court’s finding under R.C. 2151.414(E)(11). This factor alone would

have supported the trial court’s finding that J.S. could not, or should not, be returned to

appellant within a reasonable period of time. In Re J.M-R., 8th Dist. Cuyahoga No.

98902, 2013-Ohio-1560, ¶ 31 citing In re M.W., 8th Dist. Cuyahoga No. 91539,

2009-Ohio-121, ¶ 49. The record further supports the trial court’s findings under R.C.

2151.414(E)(1), (2) and (4) pertaining to the parents’ failure to complete case plan

services, establish their ability to provide for J.S.’s basic needs and provide an adequate

home for the child. We find no error in the trial court’s conclusion that J.S. cannot or
should not be placed with either parent within a reasonable period of time.

       {¶23} In determining whether permanent custody is in the best interest of the child,
R.C. 2151.414(D)(1) directs that the trial court “shall consider all relevant factors,”
including, but not limited to, the following:

       (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;

       (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;

       (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
       2151.413 of the Revised Code, the child was previously in the temporary
       custody of an equivalent agency in another state;

       (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;

       (e) Whether any of the factors in divisions (E)(7) to (11) of this section
       apply in relation to the parents and child.

R.C. 2151.414(D)(1).

       {¶24} We review a trial court’s determination of a child’s best interest under R.C.

2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No. 95188,

2010-Ohio-5618, ¶ 47. An abuse of discretion is more than a mere error of law or

judgment; it implies that the court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). While a trial court’s discretion in a custody proceeding is broad, it is not absolute.

 “A trial court’s failure to base its decision on a consideration of the best interests of the

child constitutes an abuse of discretion.” In re N.B., 8th Dist. Cuyahoga No. 101390,

2015-Ohio-314, ¶ 60, citing In re T.W., 8th Dist. Cuyahoga No. 85845, 2005-Ohio-5446,

¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991).

       {¶25} We find no abuse of discretion in the trial court’s conclusion that permanent

custody was in the best interests of J.S. The testimony elicited at trial detailed the close

familial bond between J.S., his siblings and his foster family. As of the time of trial, J.S.

had spent his entire first two years of life with his foster parents.         The testimony

described the positive environment the Falls have provided for J.S. and his thriving life

amongst his siblings under their care. In contrast, the record as detailed above contains

ample competent, credible evidence of the deficient parenting capabilities of appellant.

       {¶26} However, we have grave concerns regarding the placement of these four

children in their current foster home.

       {¶27} The evidence in this case is scant as to the living conditions in the foster

home but there is testimony that now residing in that home are foster mother, foster

father, J.S. III, A.C., B.B., and C.C. (the minors subject to the custody litigation now

before this court).

       {¶28} In addition to these six people, there are tenants in the home, the number of

whom is unclear and the identity of whom was not made, but total either four or five.

       {¶29} There are also numerous animals who live in the home and perhaps two
adults, biological children of the foster parents.

       {¶30} There was no testimony offered by social workers that these other persons

living in the home had been investigated as to mental health issues, substance abuse

issues or criminal records but the recommendation was for permanent custody with the

foster family, a decision that should be revisited.

       {¶31} The foster home has only one and a half bathrooms that service up to nine

adults and four children.

       {¶32} Appellant’s sole assignment of error is overruled.

       {¶33}    The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas, Juvenile Division, to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

PATRICIA A. BLACKMON, J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY
