[Cite as In re Z.N., 2011-Ohio-3221.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
           Z.N.                                :   Julie A. Edwards, J.
                                               :
                                               :   Case No. 11-CA-0015
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Licking County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. F2009-0814

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             June 23, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KENNETH W. OSWALT                                   ROBERT C. BANNERMAN, ESQ.
Licking County Prosecutor                           P.O. Box 77466
                                                    Columbus, Ohio 43207-0098
BY: JAMES D. MILLER
Assistant Prosecuting Attorney                      For Marcena Burnside
20 S. Second Street, Fourth Floor
Newark, Ohio 43055                                  ROBIN LYN GREEN, ESQ.
                                                    33 West Main Street, Ste. 103
Guardian ad Litem                                   Newark, Ohio 43055

RUTHELLEN WEAVER, ESQ.
542 South Drexel Avenue
Bexley, Ohio 43209
[Cite as In re Z.N., 2011-Ohio-3221.]


Edwards, J.

        {¶1}     Appellant, Zakery Neldon, appeals a judgment of the Licking County

Common Pleas Court, Juvenile Division, awarding permanent custody of his daughter

Z.N. to appellee Licking County Department of Job and Family Services (LCDJFS).

                                    STATEMENT OF FACTS AND CASE

        {¶2}     Z.N. was born on November 25, 2009.      On the same date, Z.N. was

placed into the emergency shelter care of appellee and has resided in the same foster

home from the time she was released from the hospital. On February 8, 2010, Z.N. was

found to be dependent and placed in the temporary custody of the agency. Appellee

moved for permanent custody of Z.N. on October 18, 2010. The case proceeded to trial

on December 20, 2010 before a magistrate in the Licking County Common Pleas Court.

        {¶3}     Marcena Burnside is the mother of Z.N.       She has been minimally

employed and virtually homeless, losing multiple jobs because of poor job performance.

At the time of the permanent custody hearing, she was living with her sister. She

struggled to meet Z.N.’s basic needs during visitation and had previously lost custody of

her two older children.

        {¶4}     Appellant was incarcerated at the time of the hearing for assaulting a

police officer. Although he did not have medical documentation, he claimed to have

been diagnosed in the past as bipolar and schizophrenic. Following his conviction, he

was expelled from a community-based correction facility and an in-patient treatment

facility and thereafter ordered to serve his sentence in prison. He became incarcerated

in September, 2010, and was due to be released in March, 2011. He testified that after
Licking County App. Case No. 11-CA-0015                                                    3


his release he had a job and an apartment waiting for him and was prepared to take

care of Z.N.

       {¶5}    The magistrate found that Z.N. should not be placed with appellant or her

mother within a reasonable time, Z.N.’s need for a permanently secure placement could

not be achieved without granting permanent custody to the agency and the parents

failed continuously and repeatedly to remedy the conditions which existed at the time of

Z.N.’s removal. The court found permanent custody to be in the best interest of Z.N.

and awarded permanent custody to the appellee. Appellant failed to file objections to

the magistrate’s report.

       {¶6}    Appellant assigns two errors on appeal:

       {¶7}    “I. APPELLANT RECEIVE [SIC] INEFFECTIVE ASSISTANCE OF TRIAL

AND APPELLATE COUNSEL.

       {¶8}    “II. THE MAGISTRATE’S DETERMINATION TO GRANT PERMANENT

CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR

PLAIN ERROR.”

                                                 I

       {¶9}    In his first assignment of error, appellant argues counsel was ineffective

for failing to file objections to the magistrate’s decision, thereby hampering his ability to

appeal.

       {¶10} A properly licensed attorney is presumed competent. State v. Hamblin

(1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the
Licking County App. Case No. 11-CA-0015                                                   4

result of the proceedings would have been different.     Strickland v. Washington (1984),

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d

136. In other words, appellant must show that counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶11} Juv. R. 40(D)(3)(b)(iv) provides:

       {¶12} “(iv) Waiver of right to assign adoption by court as error on appeal. Except

for a claim of plain error, a party shall not assign as error on appeal the court’s adoption

of any factual finding or legal conclusion whether or not specifically designated as a

finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has

objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”

       {¶13} Appellant has not demonstrated that had he filed objections to the

magistrate’s report, the result of the proceeding would have been different.           The

evidence demonstrated that appellant had only seen Z.N. five times during her lifetime.

He has been diagnosed with bipolar disorder and schizophrenia and prior to his

incarceration did not take medication for his problems because he did not have

insurance. He had a history of marijuana and drug use, and at one point told the

caseworker he had a “God-given right” to smoke marijuana. He was incarcerated at the

time of trial for assault on a police officer. He had been expelled from a community-

based corrections facility due to conflicts with staff members, and was expelled from an

in-patient substance abuse treatment facility when he walked away, causing his

probation to be revoked and his prison sentence to be imposed.
Licking County App. Case No. 11-CA-0015                                                5


       {¶14} There was evidence that although appellant was never convicted of

domestic violence, appellant and Z.N.’s mother had a history of violence between them.

He threatened to kill the caseworker assigned to Z.N.’s case and threatened to have her

fired, both face-to-face and by telephone.       He left threatening messages on the

caseworker’s voice mail. While everyone involved in the case agreed that appellant

loved Z.N., the evidence was overwhelming that despite his testimony to the contrary,

he was unable to care for her.

       {¶15} The evidence further demonstrated that Z.N. had been in the same foster

home from birth and the foster parents wanted to adopt her.

       {¶16} Appellant has not demonstrated that had counsel filed objections to the

magistrate’s report, the court would have denied the agency’s permanent custody

motion. The first assignment of error is overruled.

                                                II

       {¶17} In his second assignment of error, appellant argues that the decision of

the court finding permanent custody to be in Z.N.’s best interest is against the manifest

weight of the evidence. As discussed in assignment of error one, counsel failed to file

objections to the findings of the magistrate. We accordingly must find plain error in

order to reverse. To demonstrate plain error, appellant must show that but for the error,

the result of the proceeding would clearly have been otherwise. State v. Long (1978), 53

Ohio St.2d 91, 372 N.E.2d 804, ¶ 2 of the syllabus. Notice of plain error is to be taken

with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. Id. at paragraph 3 of the syllabus.
Licking County App. Case No. 11-CA-0015                                                      6


        {¶18} A trial court's decision to grant permanent custody of a child must be

supported by clear and convincing evidence. The Ohio Supreme Court has defined

“clear and convincing evidence” 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.”

Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118; In re: Adoption of Holcomb

(1985), 18 Ohio St.3d 361, 481 N.E.2d 613.

        {¶19} In reviewing whether the trial court based its decision upon clear and

convincing evidence, “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.”

State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60; See also, C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. If the trial

court's judgment is “supported by some competent, credible evidence going to all the

essential elements of the case,” a reviewing court may not reverse that judgment.

Schiebel, 55 Ohio St.3d at 74, 564 N.E.2d 54.

        {¶20} Moreover, “an appellate court should not substitute its judgment for that of

the trial court when there exists competent and credible evidence supporting the

findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses

and the weight to be given the evidence are primarily for the trier of fact. As the court

explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273:
Licking County App. Case No. 11-CA-0015                                                     7


       {¶21} “The underlying rationale of giving deference to the findings of the trial

court rests with the knowledge that the trial judge is best able to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.”

       {¶22} Moreover, deferring to the trial court on matters of credibility is “crucial in a

child custody case, where there may be much evident in the parties' demeanor and

attitude that does not translate to the record well.” Davis v. Flickinger (1997), 77 Ohio

St.3d 415, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No. 04CA10,

2004-Ohio-3146; In re: C. W., Montgomery App. No. 20140, 2004-Ohio-2040.

       {¶23} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) 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.

       {¶24} The evidence established that appellant had only visited Z.N. five times.

She had resided in the same foster home since her birth and her foster family wanted to

adopt her. Appellant was incarcerated at the time of the December 2010, hearing and

was not due to be released until March, 2011. The caseworker assigned to Z.N.’s case

testified that permanent custody was in Z.N.’s best interest. She testified that appellant
Licking County App. Case No. 11-CA-0015                                                 8


loves Z.N. but was not in a position to parent due to his explosive anger issues, his drug

addiction and his incarceration. She testified that while appellant did take parenting

classes while incarcerated and would show progress at times, he continues to show

lapses in judgment and take steps backwards, as evidenced by a relapse with drug and

alcohol abuse while in treatment. Appellant has not demonstrated plain error in the

findings of the court concerning the best interest of the child.

       {¶25} The second assignment of error is overruled.

       {¶26} The judgment of the Licking County Common Pleas Court, Juvenile

Division, is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                     ______________________________



                                                     ______________________________



                                                     ______________________________

                                                                   JUDGES

JAE/r0603
[Cite as In re Z.N., 2011-Ohio-3221.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
           Z.N.                                :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 11-CA-00115




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas, Juvenile Division, is affirmed.

Costs assessed to appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
