[Cite as In re B.C., 2015-Ohio-265.]


                                           COURT OF APPEALS
                                         LICKING COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                               :       JUDGES:
                                                :       Hon. Sheila G. Farmer, P.J.
B.C., JR.                                       :       Hon. Patricia A. Delaney, J.
                                                :       Hon. Craig R. Baldwin, J.
                                                :
                                                :       Case No. 14-CA-88
                                                :
                                                :       OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Juvenile Division, Case No.
                                                        F2012-0600


JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       January 21, 2015




APPEARANCES:

For Appellant-Mother                                    For Appellee

MICHAEL R. DALSANTO                                     J. ANDREW STEVENS
3 South Park Place, Suite 220                           20 South Second Street, 4th Floor
Newark, OH 43055                                        Newark, OH 43055

For Father                                              Guardian ad Litem

ADAM O. JOHNSON                                         BONNIE VANGELOFF
3 South High Street                                     P.O. Box 4174
Canal Winchester, OH 43110                              Dublin, OH 43016
Licking County, Case No. 14-CA-88                                                    2

Farmer, J.

      {¶1}    On September 19, 2012, appellee, Licking County Department of Job and

Family Services, removed B.C., Jr., born August 29, 2010, from his home. Mother of

the child is appellant, Katelyn Speakman; father is B.C., Sr. On November 21, 2012,

the child was found to be dependent and was placed in appellee's temporary custody.

The child was placed with the maternal grandparents, Todd and Shelly Speakman.

      {¶2}    On August 12, 2013, appellee filed a motion for permanent custody of the

child due to the parents' failure to meet the objectives of the case plan. A hearing

before a magistrate was held on March 6, 2014. By decision filed March 24, 2014, the

magistrate recommended granting permanent custody of the child to appellee. Both

parents filed objections. By judgment entry filed September 11, 2014, the trial court

denied the objections and approved and adopted the magistrate's decision.

      {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶4}    "THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT       OR   SHOULD     NOT    BE   PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE."

                                           II

      {¶5}    "THE   JUDGMENT       OF   THE    TRIAL   COURT    THAT       THE   BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
Licking County, Case No. 14-CA-88                                                         3


PERMANENT         CUSTODY      WAS     AGAINST      THE     MANIFEST      WEIGHT      AND

SUFFICIENCY OF THE EVIDENCE."

                                             III

       {¶6}    "THE TRIAL COURT'S DECISION DENYING AN EXTENSION WAS AN

ABUSE     OF     DISCRETION      AND    AGAINST      THE    MANIFEST       WEIGHT      AND

SUFFICIENCY OF THE EVIDENCE."

                                            I, II

       {¶7}    Appellant claims the trial court's decision that the child cannot be placed

with her within a reasonable amount of time and the child's best interest is best served

with the granting of permanent custody to appellee was against the sufficiency and

manifest weight of the evidence. We disagree.

       {¶8}    A trial court may grant an agency permanent custody of a child upon clear

and convincing evidence of certain factors set forth in R.C. 2151.414.           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 (1954), paragraph three of the syllabus.        See also, In re Adoption of

Holcomb, 18 Ohio St.3d 361 (1985). "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." Cross at 477.

       {¶9}    On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and
Licking County, Case No. 14-CA-88                                                        4


determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-

52; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.              In weighing the

evidence, however, we are always mindful of the presumption in favor of the trial court's

factual findings. Eastley at ¶ 21.

       {¶10} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part as follows:



              (E) In determining at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code whether a child cannot be placed with either parent within a

       reasonable period of time or should not be placed with the parents, the

       court shall consider all relevant evidence. If the court determines, by clear

       and convincing evidence, at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code 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:

              (1) Following the placement of the child outside the child's home

       and notwithstanding reasonable case planning and diligent efforts by the
Licking County, Case No. 14-CA-88                                                           5


       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. 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.

              (16) Any other factor the court considers relevant.



       {¶11} R.C. 2151.414(D) sets out the factors relevant to determining the best

interest of a child. Said section states relevant factors include, but are 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
Licking County, Case No. 14-CA-88                                                      6


       agencies or private child placing agencies for twelve or more months of a

       consecutive twenty-two-month period* * *;

              (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.



       {¶12} At the time of the hearing, the child had been placed with the maternal

grandparents and had been in appellee's temporary custody for over twelve months.

       {¶13} The case plan for the parents included three issues: 1) substance abuse

including assessment and random drug screens; 2) home conditions; and 3) mental

health issues/domestic disturbances.

       {¶14} In his decision filed March 24, 2014, the magistrate was very specific as to

appellant's failure to follow the case plan:



              4. Since that adjudication in October of 2013, Ms. Speakman and

       Mr. [C.] have not taken any of the requested drug tests, even after

       agreeing to take a test. Both testified that they are not taking any pain

       killers or other drugs now. The records from counseling show that the two

       have done very little in terms of counseling, with both Ms. Speakman and

       Mr. [C.] attending one session.         At her session in January, 2014, Ms.

       Speakman acknowledged ongoing opiate use and also was inquiring of
Licking County, Case No. 14-CA-88                                                      7


      the counselor how she could obtain anti-depressants. Mr. [C.]'s records

      indicate that he denied any problems or issues with substance abuse or

      anything else, and indicated that he was only in counseling so he could

      "get (his) kids back." Ms. Speakman testified that she did not want to

      engage in counseling, as she believed that anything she said in

      counseling would be "twisted" and used against her.          Likewise, she

      testified that she would not take drug tests, as those results would be used

      against her as well.

             8. A great deal of testimony was presented on visits and the

      relationship between Ms. Speakman and Mr. [C.] with the child.          The

      testimony was uncontroverted that visits go well and the child is closely

      bonded to his parents.      There were some issues brought up by the

      visitation coordinator, such as the name issue described above or some

      teasing of the child such as telling him the police were coming for him

      when a siren could be heard in the visit room.



      {¶15} A review of the hearing transcript indicates despite having done a drug

assessment at Mid Ohio, appellant failed to follow-through regarding drug treatment and

failed to take drug screens at least twenty-one times. T. at 41-45. The home still lacked

smoke detectors as required, but other conditions were resolved.           T. at 46-47.

Appellant failed to obtain counseling for mental health issues after a referral to

Moundbuilders/Behavioral Healthcare Partners.       T. at 47.    There have been no

domestic disturbances since September 2012. T. at 59.
Licking County, Case No. 14-CA-88                                                         8


        {¶16} Appellant admitted to not following through on counseling and not taking

drug screens since October 2013. T. at 9, 11-12, 74-76. She stated "I don't have a

problem with talking to somebody, but you come here and these people twist it and use

it against you and everything else." T. at 74. She admitted to not being totally honest in

the counseling sessions. T. at 74-75. She refused to take drug tests "because I took

one for them here at the court date for [another child] when they came and took her." T.

at 75. She complied and they found drugs in her system "and they still came and took

my daughter." T. at 76. Her opinion was "I'm damned if I do and I'm damned if I don't."

Id.

        {¶17} The undisputed facts substantiate the trial court's approval and adoption of

the magistrate's decision finding that reunification with appellant was not possible after a

reasonable amount of time pursuant to R.C. 2151.414(E)(1).

        {¶18} As for best interest, appellant argues their visitations with the child

established their interactions with the child have been positive and the child has bonded

with them, and the guardian ad litem recommended legal placement of the child with the

maternal grandparents. Appellant argues the trial court erred in not taking these factors

into consideration.

        {¶19} As explained by the trial court in its judgment entry filed September 11,

2014:



              1. The magistrate was required to consider the guardian ad litem's

        recommendations. The magistrate was not required to follow the guardian

        ad litem's recommendations. The magistrate's analysis of the guardian ad
Licking County, Case No. 14-CA-88                                                     9

      litem's recommendations were clearly and thoroughly set forth in his

      written decision. It is worthy to note that the guardian ad litem did not

      believe that this child should be returned to either of the natural parents.



      {¶20} In his decision, the magistrate thoroughly discussed the issue of

grandparent placement as follows:



             7. The child is placed with his maternal grandparents. He has been

      in that placement since the removal. As far as the child is concerned, this

      placement has gone very well and [B.], Jr. is doing well in the placement.

      Mr. Speakman testified that he and his wife wish to pursue an adoption if

      that becomes an option. While [B.], Jr. has done well in the placement,

      there have been issues between the grandparents and the parents. Both

      Ms. Speakman and Mr. [C.] testified that they do not get along with the

      grandparents and they see the situation as being one where the

      grandparents are actually interfering in the case. An example was where

      Mr. [C.] was chastising [B.], Jr. for not using the name "[B.]," and instead

      calling himself "Leo."      Apparently, this is the name used by the

      grandparents in the home and the parents do not approve of this. The

      concern they expressed is that if the grandparents obtain some type of

      custody through this case, Mr. [C.] will never see [B.], Jr. again because of

      the bad blood between the grandparents and him.            When asked, Mr.

      Speakman testified that he did not wish to have legal custody but then
Licking County, Case No. 14-CA-88                                                        10


      also testified that he would be open to such an idea if a third party would

      facilitate and supervise visits.



      {¶21} The magistrate then concluded in pertinent part:



             1. First, it must be noted that while there was a great deal of

      discussion about granting legal custody to a relative, there is no motion for

      legal custody before the court. No motion for legal custody has ever been

      filed in this case. Revised Code 2151.353(A)(3) states that a court may

      grant legal custody "to either parent or to any other person who, prior to

      the dispositional hearing, files a motion requesting legal custody of the

      child or is identified as a proposed legal custodian in a complaint or motion

      filed prior to the dispositional hearing by any party to the proceedings." As

      no motion was ever filed, this option is not available in this case.



      {¶22} As the magistrate acknowledged in his decision on page 8, the decision of

placement rests with appellee once permanent custody is granted. Appellee's ongoing

social worker assigned to the case, Matthew Tracy, opined the following (T. at 51-52):



             I did talk with the grandparents at length multiple times about

      different options for permanency between legal custody and permanent

      custody and kind of what that entails.
Licking County, Case No. 14-CA-88                                                         11


              With talking with them and kind of talking with my supervisor and

       kind of staffing this case, came to the conclusion that permanent custody

       is the best option for BJ at this time. I don't feel that the parents are in any

       position now or in the near future to be able to take care of [B.], or BJ. I

       also think that there's definitely some really hard feelings between the

       parents and the grandparents where I don't think there could be

       supervised visitations during those type of things.

              ***

              Once again, I - - I feel it's in the best interest of - - of BJ to be

       placed in the permanent custody of the Agency so that we can do an

       adoption. At this point Mrs. and Mr. Speakman have indicated that they

       would adopt BJ if the Agency were to be granted permanent custody.



       {¶23} Upon review, we find sufficient clear and convincing evidence to support

the trial court's decision on best interest and the granting of permanent custody of the

child to appellee.

       {¶24} Assignments of Error I and II are denied.

                                             III

       {¶25} Appellant claims the trial court abused its discretion in not granting an

extension of the temporary custody order and deferring ruling on the motion for

permanent custody. We disagree.

       {¶26} Pursuant to R.C. 2151.415(D)(1), if an agency requests an extension of

temporary custody for a period of up to six months, a trial court may grant an extension
Licking County, Case No. 14-CA-88                                                      12


"if it determines at the hearing, by clear and convincing evidence, that the extension is

in the best interest of the child, there has been significant progress on the case plan of

the child, and there is reasonable cause to believe that the child will be reunified with

one of the parents or otherwise permanently placed within the period of extension." In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

      {¶27} At the conclusion of the permanent custody hearing during closing

statements, appellant's counsel requested an extension (T. at 97-98):



             I believe that the evidence did not show that Mom is abusing

      prescription drugs. The home is clean and appropriate. The allegations

      that were in the complaint have been remedied, or the issues that were in

      the complaint have been remedied, and there have been no domestic

      violence issues or reports. And so we are asking - - we are asking the

      Court to grant an extension.

             We do believe that the only reason that a legal custody motion

      attached to the statement of understanding - - and a statement of

      understanding were not presented to the Court or filed with the Court is

      because it was not in maternal grandparents' best interest, not because it

      was not in [B.], Junior's, best interest.

             We don't believe that the grandparents are willing to work with Dad.

      We believe that the grandparents are willing to work with Mom, but we
Licking County, Case No. 14-CA-88                                                      13


      don't believe that - - we don't believe that they're willing to work with Dad,

      and that is why they did not agree to legal custody at this time. That does

      not mean that it was not in [B.], Junior's, best interest.

             So since [B.], Junior, is the reason why we're here today, and since

      the statute refers to his best interest and not the caregivers', then we are

      asking that an extension of temporary custody be granted so that maybe

      we can all work together even further to see if we can remedy the situation

      short of permanent custody of [B.], Junior, to the State - - to the - - and

      therefore the Agency, Your Honor.



      {¶28} After an examination of the testimony, we concur with the magistrate's

assessment of this request in his decision on page 9:



             Finally, with respect to granting an extension to pursue a legal

      custody option, the undersigned can really see no basis for an extension.

      The statute requires that, to grant an extension, a court must find "by clear

      and convincing evidence, that the extension is in the best interest of the

      child, there has been significant progress on the case plan of the child,

      and there is a reasonable cause to believe that the child will be reunified

      with one of the parents or otherwise permanently placed within the period

      of extension." R.C. 2151.415(D)(1). Factually, the evidence presented

      showed minimal progress in terms of the case plan. Minimal substance

      abuse counseling has occurred. Minimal mental health counseling has
Licking County, Case No. 14-CA-88                                                      14


      occurred. All the two have managed to do is clean their house enough so

      that when someone comes to check, it meets minimal standards. Even

      more that this, we have two people who have for the last several months

      refused to comply with the case plan as ordered by this court and take

      drug tests. This isn't just a lack of progress, but a choice to not do what is

      being asked, which gives little hope for great improvement during an

      extension period. Also, there is no real cause to believe that granting an

      extension at this point will result in reunification or permanency of some

      type. The whole reason that an extension was suggested was to allow

      counsel to look for the possibility of another option in place of the one that

      is actually available now.



      {¶29} Upon review, we find the trial court did not abuse its discretion in not

granting an extension of the temporary custody order.

      {¶30} Assignment of Error III is denied.
Licking County, Case No. 14-CA-88                                          15


      {¶31} The judgment of the Court of Common Pleas of Licking County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




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