[Cite as In re C.H., 2018-Ohio-3459.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                 JUDGES:
                                                 Hon. John W. Wise, P. J.
IN THE MATTER OF:                                Hon. W. Scott Gwin, J.
                                                 Hon. Earle E. Wise, Jr., J.

        C.H.                                     Case No. 2018 CA 00070

        MINOR CHILD                              OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Juvenile Division, Case No. 2015
                                              JCV 00776

JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       August 27, 2018



APPEARANCES:

For Appellee                                  For Appellant Mother

BRANDON J. WALTENBAUGH                        BERNARD L. HUNT
STARK COUNTY JFS                              2395 McGinty Road, NW
402 2nd Street, SE                            North Canton, Ohio 44720
Canton, Ohio 44702
Stark County, Case No. 2018 CA 00070                                                         2

Wise, John, P. J.

       {¶1}   Appellant-Mother Jennifer H. appeals the decision of the Stark County Court

of Common Pleas, Juvenile Division, which granted permanent custody of her daughter,

C.H., to Appellee Stark County Job and Family Services (“SCJFS”). The relevant

procedural facts leading to this appeal are as follows.

       {¶2}   Appellant is the mother of the minor child C.H., born in 2017. The father of

C.H., Michael P., has had little involvement in the child’s life and did not participate in any

case planning. Paternity was established while the case was proceeding. However, the

trial court stated most recently that his whereabouts were unknown.

       {¶3}   Appellant has had previous involvement with SCJFS, and three older

siblings of C.H. are in the legal custody of relatives following court intervention. On July

13, 2017, shortly after C.H. was born, SCJFS filed a complaint in the trial court alleging

C.H. was a dependent child. The agency therein stated inter alia its concerns that

appellant has “chronic mental health issues,” including schizophrenia and bipolar

disorder, for which she has repeatedly resisted treatment. Appellant told caseworkers that

at the time of the child’s birth, she was in the process of seeking a protective order against

the agency.

       {¶4}   SCJFS was granted emergency shelter care custody on July 17, 2017. The

trial court also issued an order for appellant to complete a psychological evaluation.

       {¶5}   The matter proceeded to an adjudicatory hearing on September 19, 2017.

At that time, the trial court found appellant to be a dependent child and placed her in

temporary agency custody.
Stark County, Case No. 2018 CA 00070                                                    3


        {¶6}   The court conducted a review hearing on January 5, 2018. The court noted

in its written entry at that time that appellant had failed to complete a parenting

assessment and that although she had attended an appointment at Phoenix Rising, a

behavioral health center, on December 18, 2017, no further appointments had been

scheduled. The court also found that appellant’s last visit with C.H. had occurred in July

2017.

        {¶7}   SCJFS filed a motion for permanent custody on March 27, 2018. The matter

proceeded to an evidentiary hearing on May 10, 2018. After hearing the evidence, the

trial court took the matter under advisement. The next day, the trial court issued a

judgment entry, with findings of fact and conclusions of law, granting permanent custody

of C.H. to SCJFS.

        {¶8}   On June 11, 2018, appellant filed a notice of appeal. She herein raises the

following two Assignments of Error:

        {¶9}   “I. THE TRIAL COURT’S JUDGMENT THAT THE MINOR CHILD CANNOT

AND SHOULD NOT BE PLACED WITH APPELLANT WITHIN A REASONABLE PERIOD

OF TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.

        {¶10} “II. THE TRIAL COURT’S JUDGMENT THAT THE BEST INTERESTS OF

THE MINOR CHILD WOULD BE SERVED BY GRANTING PERMANENT CUSTODY

WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
Stark County, Case No. 2018 CA 00070                                                4


                                              I.

      {¶11} In her First Assignment of Error, appellant argues that the trial court's

granting of permanent custody of C.H. to the agency under the “cannot/should not”

parental placement aspect of R.C. 2151.414(B)(1)(a) was against the manifest weight

and sufficiency of the evidence.

      {¶12} R.C. 2151.414(B)(1) reads as follows, in pertinent part:

             Except as provided in division (B)(2) of this section, the court may

      grant permanent custody of a child to a movant if the court determines at

      the hearing held pursuant to division (A) of this section, by clear and

      convincing evidence, that it is in the best interest of the child to grant

      permanent custody of the child to the agency that filed the motion for

      permanent custody and that any of the following apply:

             (a) 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, or 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 if, 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, 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.
Stark County, Case No. 2018 CA 00070                                                   5


             (b) The child is abandoned.

             (c) The child is orphaned, and there are no relatives of the child who

      are able to take permanent custody.

             (d) 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.

             (e) The child or another child in the custody of the parent or parents

      from whose custody the child has been removed has been adjudicated an

      abused, neglected, or dependent child on three separate occasions by any

      court in this state or another state. ***.

      {¶13} While appellant presently focuses solely on subparagraph (B)(1)(a) of the

above statute, we have recognized that (B)(1)(b) (abandonment) is independently

sufficient to use as a basis to grant a motion for permanent custody. See Matter of K.K.,

5th Dist. Stark No. 2017 CA 00195, 2018-Ohio-399, ¶ 16, citing In re N.W., 10th Dist.

Franklin No. 07AP-590, 2008-Ohio-297, ¶ 10. See, also, In re Anthony/Bentley Children,

5th Dist. Stark No. 2001CA00185, 2001 WL 1769937.

      {¶14} We note R.C. 2151.011(C) sets forth a “presumptive abandonment” rule:

“For the purposes of this chapter, a child shall be presumed abandoned when the parents
Stark County, Case No. 2018 CA 00070                                                         6


of the child have failed to visit or maintain contact with the child for more than ninety days,

regardless of whether the parents resume contact with the child after that period of ninety

days.” We have held that there must be a showing that a parent has failed to visit or

maintain contact with the child for a period of ninety days before an agency moves for

permanent custody on “presumed abandonment” grounds. See In re Scullion, 5th Dist.

Stark No. 2006CA00308, 2007–Ohio–929, ¶ 30.

       {¶15} In the case sub judice, among other things, SCJFS ongoing caseworker

Amy Craig testified that appellant had had no contact with C.H. between July 13, 2017

and April 6, 2018. See Tr. at 11. Furthermore, it is undisputed that Michael P. has

abandoned C.H.       Accordingly, we find no reversible error in the court's finding of

abandonment under R.C. 2151.414(B)(1)(b), and any claimed error in regard to

subparagraph (B)(1)(a), supra, would thus be deemed harmless. In the interest of judicial

economy, we will therefore proceed to the issue of the child’s best interest. See In re

C.W., 5th Dist. Coshocton No. 2013 CA 0027, 2014-Ohio-3284.

       {¶16} Appellant's First Assignment of Error is overruled.1

                                                  II.

       {¶17} In her Second Assignment of Error, appellant contends the trial court’s

determination that permanent custody was in the best interest of C.H. was against the

manifest weight and sufficiency of the evidence. We disagree.




1   Appellant adds an argument that the agency failed to demonstrate that it made
reasonable efforts to prevent the child’s removal as set forth in R.C. 2151.419(A)(1).
However, said statute, by its plain terms, does not apply to motions for permanent custody
brought pursuant to R.C. 2151.413 or to hearings held on such motions pursuant to R.C.
2151.414. In re P.S., 5th Dist. Licking No. 16–CA–11, 2016–Ohio–3489, ¶ 44, citing In re
C.F., 113 Ohio St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816.
Stark County, Case No. 2018 CA 00070                                                      7


       {¶18} In determining the best interest of a child for purposes of permanent custody

disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D)(1) and “all relevant factors.” The specified factors are as follows:

                (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.
Stark County, Case No. 2018 CA 00070                                                        8


       {¶19} As an appellate court, we are not the trier of fact; instead, our role is to

determine whether there is relevant, competent, and credible evidence upon which the

factfinder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768,

936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark

No. CA5758, 1982 WL 2911. It is well-established that the trial court in a bench trial is in

the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th Dist.

Summit No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St .2d

230, 227 N.E.2d 212. Furthermore, the trial court, as the fact finder, is free to believe all,

part, or none of the testimony of each witness. State v. Caldwell (1992), 79 Ohio App.3d

667, 679, 607 N.E.2d 1096.

       {¶20} The record before us indicates that C.H. faces several health challenges in

her young life, including optic nerve hypoplasia and septo-optic dysplasia, which will likely

result in lifetime visual impairment and issues with her cognitive development. C.H. has

bonded with her foster family, who are properly dealing with her special needs. In contrast,

although she did go through with two visits in the month prior to the final hearing, appellant

has abandoned the child and failed to develop a bond. Appellant does not challenge the

trial court’s reference to testimony that appellant will not acknowledge any mental health

issues and generally refuses her prescribed medications. No relatives have been

identified for potential placement of C.H. See. Tr. at 47. Furthermore, although the child

is too young to express her wishes as to custody, the guardian ad litem has recommended

a grant of permanent custody to the agency.

       {¶21} It is well-established that “[t]he discretion which the juvenile court enjoys in

determining whether an order of permanent custody is in the best interest of a child should
Stark County, Case No. 2018 CA 00070                                                   9


be accorded the utmost respect, given the nature of the proceeding and the impact the

court's determination will have on the lives of the parties concerned.” In re Mauzy

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, quoting In re Awkal

(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. In the case sub judice, upon review of

the record on appeal and the findings and conclusions of the trial court, we conclude the

grant of permanent custody of C.H. to the agency was made in the consideration of the

child's best interest and did not constitute an error or an abuse of discretion under the

circumstances presented.

       {¶22} Appellant's Second Assignment of Error is therefore overruled.

       {¶23} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Juvenile Division, Stark County, Ohio, is hereby affirmed.



By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.

JWW/d 0817
