[Cite as In re K.M., 2009-Ohio-6719.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY



IN RE:                                                       CASE NO. 9-09-29

   K. M.,

[RONALD MALONE, APPELLANT].                                    OPINION



IN RE:                                                       CASE NO. 9-09-30

   C. M.,

[RONALD MALONE, APPELLANT].                                    OPINION



                 Appeal from Marion County Common Pleas Court
                                 Family Division
                   Trial Court Nos. 2004 AB 0071, 2004 AB 0070

                                        Judgments Affirmed

                          Date of Decision: December 21, 2009




APPEARANCES:

        Dustin Redmond, Jr. for Appellant

        Denise M. Martin for Appellee
Case No. 9-09-29, 30



SHAW, J.

        {¶1} Appellant Ronald Malone (“Ronald”) appeals from the July 17, 2009

Judgment Entry of the Marion County Court of Common Pleas, Family Division,

terminating his parental rights and granting permanent custody of his children,

K.M. and C.M., to the Marion County Children Services Board (“MCCSB”).

        {¶2} On February 24, 2004, MCCSB filed for and was granted an

emergency order to obtain temporary custody of K.M. and C.M. On March 16,

2004, MCCSB filed a complaint alleging K.M. and C.M. were neglected and

dependent as defined in R.C. 2151.03 and 2151.04. As the basis for the complaint,

MCCSB alleged that Jamie Harbin (“Jamie”), the children’s mother and custodial

parent, failed to provide stable housing and that the conditions of the home were

unsanitary and unsafe.

        {¶3} On April 24, 2005, Jaime regained custody of K.M. and C.M. when

the court ordered the termination of MCCSB’s temporary custody of the children.

On July 20, 2005, MCCSB filed another motion for emergency custody requesting

temporary custody of K.M. and C.M.1                     MCCSB also filed a new complaint

alleging that K.M. and C.M. were neglected, abused, and dependent and requested

permanent custody of the children. The same day, the magistrate held a hearing


1
  In support of its motion, MCCSB alleged that Jamie violated the case plan by allowing prohibited people
to have contact with her children and by failing to maintain a clean home. MCCSB also alleged that
Jamie’s home was unsafe due to the presence of an improperly stored firearm and “deplorable living
conditions.”


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on MCCSB’s motion for emergency custody and found that K.M. and C.M.’s

continued residence in Jamie’s home would be contrary to their best interest and

welfare. Accordingly, the magistrate granted temporary custody of the children to

MCCSB. On October 28, 2005, MCCSB filed a motion to dismiss the July 20,

2005 complaint and re-filed a new complaint again alleging that the children were

neglected, abused, and dependant and requested permanent custody. A hearing on

the complaint was set for January 19, 2006.

       {¶4} Neither Jamie nor Ronald were present at the January 19, 2006

hearing. Jamie left the courtroom in a distraught emotional state prior to the

commencement of the hearing and failed to return. Her attorney subsequently

withdrew from her representation.       Ronald was incarcerated at the time for

violating his parole; however, he was represented by counsel. On May 17, 2006,

the court entered its Judgment Entry regarding the January 19, 2006 hearing and

found, “by clear and convincing evidence that it is in the best interest of the

children to grant permanent care and custody to Marion County Children’s

Services.”

       {¶5} Ronald filed an appeal with this Court arguing that the trial court

erred in granting MCCSB’s motion for permanent custody. On February 26,

2007, this Court reversed the trial court’s grant of permanent custody, finding that:

       * * * the trial court abused its discretion and did not act in
       accordance with the provisions of R.C. 2151.27, R.C. 2151.28,
       R.C. 2151.35, and R.C. 2151.353. Specifically, we find that the


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Case No. 9-09-29, 30


       court failed to address the issue of adjudication and make a
       finding as to whether or not [K.M.] and [C.M.] were abused,
       neglected, or dependent prior to finding that it was in the best
       interest of the children to grant permanent care and custody to
       MCCSB.

In re Malone, 2007-Ohio-769, at ¶36.

       {¶6} On January 30, 2008, the trial court entered a Judgment Entry this

time expressly stating: “the evidence is clear and convincing that these children

are Neglected and Dependant at the time of the hearing.” The trial court then set

forth its R.C. 2151.414 findings of fact and concluded that granting MCCSB’s

motion for permanent custody was in the children’s best interests. However, the

court did not conduct a new hearing and based its judgment solely on the evidence

elicited from the January 19, 2006 hearing.

       {¶7} On February 26, 2008, Ronald filed a second appeal to this Court

asserting that the trial court erred in granting MCCSB’s motion for permanent

custody because it failed to conduct a separate dispositional hearing after it

adjudicated the children neglected and dependent. On September 2, 2008, this

Court reversed the trial court’s grant of permanent custody finding that:

       Since the trial court did not find that the children were
       neglected/dependent at the January 19, 2006 hearing, the trial
       court could not, at that time, properly proceed to disposition.
       Accordingly, the January 19th hearing cannot satisfy the
       “separate dispositional hearing” requirement necessary for the
       court’s dispositional order. * * * Furthermore, nothing in the
       record indicates that the trial court ever held a proper
       “separate” dispositional hearing as required. Almost one year
       following our remand, the trial court did not hold any new


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Case No. 9-09-29, 30


       adjudicative or dispositional hearings, but instead simply
       entered a new judgment based on the January 19th hearing,
       which specifically found that [K.M.] and [C.M.] “are Neglected
       and Dependent at the time of the hearing.”

In re Malone, 2008-Ohio-4412, at ¶18. The case was remanded to the trial

court with specific instructions to “1) hold a separate dispositional hearing;

and then, 2) to enter a new judgment entry reflecting the court’s

disposition.” Id. at ¶28.

       {¶8} On February 3, 2009, the dispositional hearing was held. Several

witnesses testified including Ronald. On July 17, 2009, the court entered its

Judgment Entry granting permanent custody of K.M. and C.M. to MCCSB.

       {¶9} Ronald now appeals asserting one assignment of error.

       THE TRIAL COURT ERRED IN GRANTING APPELLEE
       PERMANENT CUSTODY OF THE CHILDREN WHEN IT
       FAILED TO FIND THAT THE CHILDREN COULD NOT BE
       PLACED WITH APPELLANT WITHIN A REASONABLE
       TIME.

       {¶10} In his sole assignment of error Ronald asserts that the trial court

erred in granting permanent custody of the children to MCCSB because it failed to

specifically state the finding “the children cannot or should not be placed with

Ronald within a reasonable time.”

       {¶11} When a trial court conducts a hearing on a motion for permanent

custody, it must follow certain guidelines set forth in R.C. 2151.414. After a child

has been found by the court to be neglected, dependent, or abused, the court may



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Case No. 9-09-29, 30


grant the motion for permanent custody if two determinations are made pursuant

to R.C. 2151.414(B)(1). In the instant case, the court had to determine, by clear

and convincing evidence, that: 1) it is in the children’s best interest to grant

MCCSB permanent custody and that the children were not abandoned or

orphaned; and that 2) the children cannot be placed with either of their parents

within a reasonable time or should not be placed with their parents. Ronald does

not dispute the trial court’s determination that it is in K.M. and C.M.’s best interest

to be placed in the permanent custody of MCCSB. Rather, he contends that the

trial court erred because it did not make the second finding by specifically stating

that “the children cannot or should not be placed with Ronald within a reasonable

time.”

         {¶12} The July 17, 2009 Judgment Entry states, in pertinent part:

         Following testimony the Court makes the following findings:

               1.     Father has an extensive history of drug use and
                      abuse.

               2.     Father has not complied with the case plan.

               3.     Father was incarcerated for improper sexual
                      contact with a minor and is prohibited from contact
                      with minor children as a condition of parole.

               4.     Father testified that he has never been able to hold
                      a job.

               5.     Father has not visited or seen the children since
                      2006.



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Case No. 9-09-29, 30


              6.     Father’s intentions of having his mother help raise
                     the children is [sic] not a practical solution.

            The Court concurs with the recommendation of the
       Guardian Ad Litem.

              The Court has considered the factors set forth in
       2151.414(D) and 2151.414(D)(1).       The children have had
       virtually no contact with the father and have bonded with the
       foster parents.

             The Court finds that it is in the best interest of the
       children to grant permanent custody to Marion County
       Children’s Services.

             It is therefore ORDERED that the Motion of Marion
       County Children Services be granted and that permanent
       custody of [C.M.] and [K.M.] be placed with Marion County
       Children’s Services.

       {¶13} The above findings unquestionably demonstrate the impracticability

of Ronald having custody of his children within a reasonable time—especially in

light of the fact that as a condition of his probation, Ronald is prohibited from

having contact with minor children. These findings can only lead to one logical

conclusion that the children cannot be placed with Ronald within a reasonable

time. As such, it is our conclusion that trial court’s finding in this instance

substantially articulates the required statutory determination.

       {¶14} Moreover, as this Court has stated previously, “the failure of the trial

court to use the statutory language ‘the child cannot be placed with either of his

parents within a reasonable time or should not be placed with his parents’ is not a

per se violation of the statutory criteria as long as the judgment entry granting


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Case No. 9-09-29, 30


permanent custody supports such conclusion.” In re Curtis, 2000-Ohio-1725 *4.;

see In re Meyer (1994) 98 Ohio App.3d 189, 648 N.E.2d 52 (holding that the

record supported a finding that the child could not be placed with the parents

within a reasonable time despite the lack of an express statement thereof in the

judgment entry).

       {¶15} Although the issue before us does not question the sufficiency of the

evidence upon which the trial court based its determination, we note that the

record amply supports the finding that the children cannot be placed with Ronald

within a reasonable time. Ronald testified that he had not seen the children since

the summer of 2006 and that he has never been able to hold onto a paying job. In

addition, Ronald also testified that he did not comply with the case plan which

required him to undergo drug and alcohol counseling and a psychological

evaluation. He blamed his inability to comply with the plan on an incident at

Marion Area Counseling Center in which he reportedly threatened to kill one of

the employees because she made a comment concerning his custody of the

children. He claimed the incident so enraged him that he refused at the time to

comply with the plan. Finally, Ronald’s probation officer testified that Ronald

was on probation until 2012 for his conviction of having unlawful sexual conduct

with a minor. He also testified that as a condition of his probation, Ronald is to

have no contact with minor children and any supervised contact required prior

approval by his probation officer.


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Case No. 9-09-29, 30


       {¶16} The Judgment Entry excerpted above clearly demonstrates that the

trial court determined that Ronald cannot have custody of his children within a

reasonable time and this finding is amply supported by the record. Although we

uphold the trial court’s finding as stated in its Judgment Entry, we stress, as we

have done in the past that the better practice would be for the trial court to enter a

finding that more closely follows the language provided in the statute.

Nevertheless for all the forgoing reasons, Ronald’s assignment of error is

overruled.

       {¶17} The judgment of the Marion County Common Please Court, Family

Division, is affirmed.

                                                                 Judgment Affirmed

PRESTON, P.J., and WILLAMOWSKI, J., concur.

/jnc




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