[Cite as In re T.C., 2012-Ohio-2307.]




                    Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97345




                                         IN RE: T.C.
                                        A Minor Child

                                (Appeal by G.C., Father)


                                         JUDGMENT:
                                          AFFIRMED



                                      Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                     Juvenile Court Division
                                     Case No. AD-09908820

             BEFORE:           Blackmon, A.J., Celebrezze, J., and Cooney, J.

             RELEASED AND JOURNALIZED:                       May 24, 2012
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEES

For C.C.D.C.F.S.

Willliam D. Mason
Cuyahoga County Prosecutor

Willie Mitchell
Asst. County Prosecutor
C.C.D.C.F.S.
811 Quincy Avenue, Rm. 341
Cleveland, Ohio 44104

Guardian Ad Litem

Melinda J. Annandale
20033 Detroit Road, Annex F1-1
Rocky River, Ohio 44116
PATRICIA ANN BLACKMON, A.J.:

      {¶1} Appellant G.C. (“father”) appeals the juvenile court’s judgment granting

permanent custody of his minor child T.C. (DOB: 9/7/05) to the Cuyahoga County

Department of Children and Family Services (“CCDCFS” or “the agency”).1 He raises

the following assigned error for our review:

      I.   The trial court abused its discretion in awarding permanent

      custody to CCDCFS and finding it was in the [child’s] best interest

      because the award is against the manifest weight of the evidence and is

      not supported by clear and convincing evidence.

      {¶2} Having reviewed the record and pertinent law, we affirm the juvenile

court’s judgment. The apposite facts follow.

                                          Facts

      {¶3} On June 7, 2009, T.C. and J.M. (the father’s stepdaughter) were removed

from the custody of their maternal grandmother. The grandmother had been taking care

of the girls because their mother’s (T.M.) whereabouts were unknown. The grandmother

notified the agency that she could no longer take care of the children, and CCDCFS

obtained temporary custody of the children. The children were placed with a foster

family.



      The father also requested custody of his step-daughter, J.M.; the agency
      1

moved to dismiss that part of the appeal, which we granted.
       {¶4} Attempts to locate the mother were unsuccessful.          In September 2010,

T.C.’s father was located. The father expressed a desire to receive custody of both girls,

even though he was not biologically related to J.M.; he claimed he had helped raise her

when he was married to T.C.’s mother.

       {¶5} The father is 38 years old and employed as a telemarketer. For most of

T.C.’s life, the father had been in prison for committing felonious assault and child

endangerment against his son, who was eight years old at the time the offenses were

committed. The father was sentenced to two years in prison, but was released after

serving seven months.     He violated his probation and served the remainder of his

two-year prison term. He also acknowledged a domestic violence charge against his wife

(T.M.). He admitted having been arrested numerous times for receiving stolen property,

drugs, and theft.

       {¶6}    He currently lives in a two-bedroom duplex located on East 128th Street in

Cleveland, Ohio. He testified that his income was sufficient to raise both girls and that

he could provide health insurance for them. His mother has volunteered to help with the

children if his work schedule required him to work longer hours. The father attended 13

of the 16 scheduled visitations with the girls. (The agency canceled one of the visits and

the father canceled the other two.) The social worker noted that the father had positive

interaction with the girls during visitation and that the girls were not fearful of him. The

father completed parenting and anger management courses while he was incarcerated.
       {¶7} The social worker testified that in order for the father to be considered for

reunification, he had to show that he lived in Ohio for the past five years. He was able to

show that he was in an Ohio prison for three of the past five years, and that for the fifth

year he lived with his mother in the duplex he later rented. However, he did not submit

any documentation regarding where he lived the year after he was released from prison.

He claimed he requested a copy of his W-2 from his employer who he worked for during

that year, but at the time of the hearing, he had not yet procured the W-2 form. His

failure to have the documentation was problematic because, according to the social

worker, it was a mandatory requirement for reunification.

       {¶8} The social worker stated that the maternal and paternal grandmothers

showed an interest in having custody of the children. The paternal grandmother only

wanted custody of T.C. Although the social worker advised the grandmothers of the

steps they needed to take to be considered for custody, neither followed through with the

requirements. The social worker testified that T.C. was very close to her half-sister,

J.M., and recommended the girls be kept together in foster care.

       {¶9} The guardian ad litem (“GAL”) also recommended that T.C. be placed with

J.M. in foster care because they had not lived with the father in over four years and the

girls had only started visitation with their father in September 2010. She also noted that

the girls shared a close relationship.      Both the GAL and the social worker were

concerned with the father’s prior violent history with his son.
         {¶10}   The trial court conducted an in camera hearing with the children to

determine with whom they desired to live. J.M., 10 years old, testified that she either

wanted to live with her maternal grandmother or her foster mother. T.C., who was

almost six years old at the time of the hearing, testified that she wanted to live wherever

J.M. lived. The trial court awarded permanent custody of the girls to the agency.

                                     Permanent Custody

         {¶11} In his sole assigned error, the father argues that the trial court abused its

discretion by awarding permanent custody of T.C. to CCDCFS.

         {¶12} It is well established that the right to parent one’s children is a fundamental

right.    In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28.

Nevertheless, a government agency has broad authority to intervene when necessary for

the child’s welfare or in the interests of public safety.       Id. at ¶ 28-29, citing R.C.

2151.01(A).      In accordance with R.C. 2151.414, a trial court may grant permanent

custody of a child to an agency if the court determines, by clear and convincing evidence,

that one of the factors enumerated in R.C. 2151.414(B)(1)(a)-(d) applies and that an

award of permanent custody is in the child’s best interest. Id. at ¶ 23. “Clear and

convincing evidence” is evidence that “will produce in the mind of the trier of facts a firm

belief or conviction as to the allegations sought to be established.” Cross v. Ledford, 161

Ohio St. 469, 477, 120 N.E.2d 118 (1954).

         {¶13}    The factors under R.C. 2151.414(B)(1) include the following: (a) the

child cannot be placed with either parent within a reasonable period of time or should not
be placed with either parent; (b) the child is abandoned; (c) the child is orphaned and no

relatives are able to take permanent custody of the child; or (d) the child has been in the

temporary custody of one or more public or private children services agencies for 12 or

more months of a consecutive 22-month period.

      {¶14}     The record supports the court’s conclusion that T.C. had been in

CCDCFS’s custody for two years. T.C. was placed in CCDCFS’s custody on June 8,

2009, and her custody hearings concluded on June 28, 2011. Therefore, the condition set

forth in R.C. 2151.414(B)(1)(d) was satisfied.

      {¶15} In addition, the court concluded pursuant to R.C. 2151.414(B)(1)(a), that

the “child cannot be placed with one of the child’s parents within a reasonable period of

time and should not be placed with either parent.” R.C. 2151.414(E) sets forth the

factors a trial court is to consider in determining whether a child cannot be placed with

either parent within a reasonable period of time or should not be placed with the parents.

The existence of one factor alone will support a finding that the child cannot be reunified

with the parent within a reasonable time. See In re: William S., 75 Ohio St.3d 95,

1996-Ohio-182, 661 N.E.2d 738.

      {¶16} The juvenile court found that T.C. could not be reunited with the father

because he was convicted or pleaded guilty to offenses listed in R.C. 2151.414(E)(6) or

2151.414(E)(7) and committed them against the child’s sibling. The offenses listed

under these sections included: endangering children, felonious assault, and domestic

violence. The father was found guilty of all three of these offenses against T.C.’s
brother. By finding these factors applied to the father, the court satisfied the requirement

that the child could not be reunified with the father within a reasonable time.

       {¶17}    The father contends that the court’s finding that T.C. could not be

reunified with him within a reasonable time was not supported by the evidence because

he had complied with the case plan to obtain housing and employment. However,

regarding the father, the court was only concerned with his prior convictions. The father

contends the convictions were from five years ago and should not be considered in

depriving him of custody because he completed parenting and anger management classes

while incarcerated. However, the father has only been out of prison for two years and

during that time has not, except for his recent supervised visitation with T.C. and J.M.,

had much interaction with the children. Although he contends the charges arose from

one beating, the beating was severe enough to leave scars that were sufficient to support a

felonious assault charge.

       {¶18} Moreover, although the father contends he complied with the case plan, he

failed to provide evidence that he has lived in Ohio for the past five years. It was

undisputed that he was incarcerated for three of the years, and for the past year lived with

his mother in the duplex. However, he presented no evidence to show where he lived the

year after being released from prison.      He contended he was having difficulties in

obtaining his W-2 from his employer during that time; however, as the court explained, he

could have submitted an affidavit from the person he lived with at the time.
         {¶19} Having satisfied R.C. 2151.414(B)(1), the only other finding the court was

required to make was that an award of permanent custody was in the best interest of the

child. See In re D.A., 8th Dist. No. 95188, 2010-Ohio-5618. R.C. 2151.414(D)(1) sets

forth the relevant factors a court must consider in determining the best interest of the

child.    These factors include, but are not limited to the following: (a) the child’s

interaction and interrelationship with the child’s parents, siblings, relatives, and foster

caregivers; (b) the child’s wishes expressed directly or through a GAL; (c) the child’s

custodial history; (d) the child’s need for legally secure permanent placement and if that

type of placement can be obtained without granting permanent custody to the agency; and

(e) whether any factors listed in R.C. 2151.414(E)(7)-(11) apply.

         {¶20}   T.C.’s relationship between her father and J.M. supports the trial court’s

conclusion that permanent custody to CCDCFS was in her best interest.                  (R.C.

2151.414(D)(1)(a)). She was nine months old when her father was incarcerated. His

appearance in her life is a relatively recent event.        Although he showed positive

interaction with her during his supervised visitation, he has had limited interaction with

her. Moreover, he was out of prison an entire year prior to establishing contact with her.

 He claimed he did not know where she was, but did not present evidence of his efforts to

locate her. T.C.’s strongest bond is with her half-sister J.M., and she told the judge in

her in camera interview that she wanted to live wherever her sister lived. Because T.C.’s

father is not J.M.’s biological father, obtaining custody of J.M. is problematic for him.
       {¶21} The GAL also recommended permanent custody of the child to CCDCFS.

She stated that T.C. shares a close relationship with J.M., and that the father had only

recent reappeared in T.C.’s life.

       {¶22}    Although the father has shown a strong desire to parent the child and has

made efforts to prepare for such a role, our primary inquiry remains the best interest and

welfare of the child. T.C. does not have an established relationship with her father due

to the short amount of time she has had with him prior to the custody proceedings. Both

the social worker and the GAL agreed that T.C.’s strongest bond is with her half-sister,

J.M.

       {¶23}     Also, the father’s past violent history with T.C.’s brother cannot be

ignored. R.C. 2151.414(D)(1)(e) refers to factors listed under (E)(7)-(9) in considering

the best interest of the child. These sections include convictions for felonious assault,

domestic violence, or child endangerment regarding the child or sibling. Although the

father contends his convictions were committed five years ago, the statute does not

indicated that these offenses cannot be considered after a certain amount of time has

elapsed.

       {¶24}     Moreover, R.C. 2151.414(D)(1)(c) requires the court to consider “the

custodial history of the child including whether the child has been in temporary custody

of one or more public children services agencies or a private child placement agency for

twelve or more months of a consecutive twenty-two month period.” As we previously

stated, at the time of the hearing, T.C. had been in CCDCFS’s custody for over two years.
       {¶25}    The father argues that CCDCFS failed to investigate placement of T.C.

with her paternal grandmother, who was interested in obtaining custody of T.C. The

social worker testified at trial that she informed the grandmother what was required for

her to be considered as a custodian for the child. Unfortunately, at the time of the

hearing, the grandmother had failed to comply with the requirements. Thus, the trial

court could not consider her as a suitable custodian.

       {¶26} The father, in the alternative, argues the trial court’s decision is against the

manifest weight of the evidence. A claim that a factual finding is against the manifest

weight of the evidence requires us to examine the evidence and determine whether the

trier of fact clearly lost its way. See In re M.W., 8th Dist. No. 83390, 2005-Ohio-1302,

citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273 (1984).

We undertake this duty with the presumption that the court’s factual findings were

correct. Id. Judgments supported by some competent, credible evidence going to all the

essential elements of the case will not be reversed by a reviewing court as being against

the manifest weight of the evidence. Id., citing C.E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. As we discussed above the trial

court’s decision was based on findings that were supported by competent, credible

evidence. Accordingly, the father’s sole assigned error is overruled.

       {¶27}    Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court 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.


PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
COLLEEN CONWAY COONEY, J., CONCUR
