[Cite as In re K.O., 2018-Ohio-1803.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

IN RE:                                            JUDGES:
                                                  Hon. John W. Wise, P.J.
K.O., O.O., L.O.                                  Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.

                                                  Case No. 18-CA-1, 18-CA-2, 18-3


                                                  OPINION




CHARACTER OF PROCEEDING:                       Fairfield Court of Common Pleas, Juvenile
                                               Division 2016-AB-0095, 2016-AB-0096,
                                               2016-AB-0097


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        May 4, 2018

APPEARANCES:

For Appellant -                                For Appellee -
B.O.                                           Fairfield Co. Dep't. Job/Family Services

DARREN L. MEADE                                R. KYLE WITT
Parks and Meade, LLC                           Prosecuting Attorney
3010 Hayden Road                               GENLYNN COSGROVE
Columbus, Ohio 43235                           Assistant Prosecuting Attorney
                                               239 West Main Street, Suite 101
                                               Lancaster, Ohio 43130
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                       2

Hoffman, J.


      {¶1}    Appellant B.O., the natural father of K.O. (d.o.b. 8/22/13), O.O. (d.o.b.

6/10/14) and L.O. (d.o.b. 10/26/15) appeals the judgment entered by the Fairfield County

Common Pleas Court, Juvenile Division, granting permanent custody of the three children

to Appellee Fairfield County Department of Job and Family Services.

                             STATEMENT OF FACTS AND CASE

      {¶2}    On July 1, 2016, Appellee was granted ex parte custody of K.O., O.O., and

L.O. Appellant was not living in the home with the children and their mother at this time,

but was residing in a home with several friends. Initially Appellee hoped to place the

children with Appellant.   However, Appellant tested positive for marijuana, and the

children were placed in foster care.     The children were adjudicated dependent on

September 8, 2016, with temporary custody awarded to Appellee on September 19, 2016.

On June 13, 2017, Appellee filed a motion requesting permanent custody of the children.

      {¶3}    Appellant’s case plan required him to obtain and maintain stable housing

and employment, complete an Alcohol and Drug assessment and follow all

recommendations, participate in random drug testing through calling and screening, and

complete a mental health assessment and follow all recommendations.

      {¶4}    Initially, Appellant made progress on the case plan. However, in October

of 2016, he lost his job as a forklift operator due to an OMVI charge, and he relapsed on

heroin and methamphetamine. At this point he stopped participating in the required drug

testing calling and screening. He was homeless for a period of time. He was incarcerated

overnight in October, 2016, and several other times for a “couple days.”
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                       3


      {¶5}   Appellant was arrested along with the children’s mother in May, 2017. He

was incarcerated on charges of kidnapping, aggravated robbery, and felonious assault

from May 6, 2017, until he was released on bond on August 10, 2017.

      {¶6}   After his release from jail, Appellant resided with his mother. He submitted

to a mental health assessment through Ohio Guidestones, which recommended ongoing

counseling. Although his initial drug assessment in the summer of 2016, indicated no

need for treatment, he has not been assessed after his subsequent relapse.

      {¶7}   The case proceeded to trial on the permanent custody motion on August

28, 2017. Appellant asked for three to six months in order to continue his treatment and

obtain employment so he could parent the children. The evidence presented at trial

demonstrated the children were bonded to Appellant and Appellant to the children, but

the children also were bonded to the foster family and doing well in foster care. The

guardian ad litem recommended permanent custody be granted to Appellee.

      {¶8}   The court found Appellant failed to remedy the problems which caused the

children to be placed outside the home, Appellant’s repeated incarceration prevents him

from providing care for the children, and the children could not be placed with him within

a reasonable time. As to the best interests of the children, the court found the children

need a safe and stable environment where their needs are met on a consistent basis,

which Appellant could not provide due to his failure to follow through with treatment

recommendations for his drug and mental health issues, his repeated incarcerations, his

pending felony charges, and his failure to secure stable housing and employment. The

court awarded Appellee permanent custody of the children.
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                              4


       {¶9}   It is from the October 9, 2017 judgment of the court Appellant prosecutes

his appeal, assigning as error:




              “THE TRIAL COURT ERRED IN GRANTING JOB AND FAMILY

       SERVICES PERMANENT CUSTODY AS SAID DECISION WAS NOT

       SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED

       BY R.C. 2151.414 AND WAS AGAINST THE MANIFEST WEIGHT OF THE

       EVIDENCE.”




       {¶10} 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, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of Holcomb,

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

       {¶11} 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, 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60 (1990); See also, C.E. Morris Co. v.

Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                               5


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.

       {¶12} 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, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):



               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.



       {¶13} 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 , 77 Ohio St.3d 415, 419,

674 N.E.2d 1159 (1997); see, also, In re: Christian, 4th Dist. Athens App. No. 04CA10,

2004-Ohio-3146; In re: C. W., 2nd Dist. Montgomery App. No. 20140, 2004-Ohio-2040.

       {¶14} Pursuant to 2151.414(B)(1), the court may grant permanent custody of a

child to the movant if the court determines “that it is in the best interest of the child to grant

permanent custody to the agency that filed the motion for permanent custody and that

any of the following apply”:
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                           6




              (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, ... and the child cannot be placed with either of

       the child's parents within a reasonable period of time or should not be

       placed with the child's parents.* * *




       {¶15} Revised Code 2151.414(E) sets forth the factors a trial court must consider

in determining whether a child cannot or should not be placed with a parent within a

reasonable time. If the court finds, by clear and convincing evidence, the existence of any

one of the following factors, “the court shall enter a finding that the child cannot be placed

with [the] 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 agency

       to assist the parent to remedy the problem that initially caused the child to

       be placed outside the home, the parents have failed continuously and

       repeatedly to substantially remedy the conditions that caused the child to

       be placed outside the child's home. In determining whether the parents

       have substantially remedied the 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
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                       7


      the parents for the purpose of changing parental conduct to allow them to

      resume and maintain parental duties.***

             (13) The parent is repeatedly incarcerated, and the repeated

      incarceration prevents the parent from providing care for the child.



      {¶16} A trial court may base its decision a child cannot or should not be placed

with a parent within a reasonable time upon the existence of any one of the R.C.

2151.414(E) factors. The existence of one factor alone will support a finding the child

cannot be placed with the parent within a reasonable time. See In re: William S., 75 Ohio

St.3d 95, 661 N.E.2d 738 (1996).

      {¶17} Appellant initially was compliant with the case plan. However, the evidence

at trial was undisputed Appellant thereafter failed to comply with his case plan. Starting

in November, 2016, Appellant admitted to drug relapse and continued use of heroin and

methamphetamine. He failed to follow through with any services recommended by

Appellee from this time until he was released from prison several weeks before trial. He

did not maintain stable housing, and has been unemployed since October of 2016.

Although he began to reengage with services pursuant to his case plan following his

release from prison on bond on August 10, 2017, he had three felony charges pending at

the time of trial. He had been incarcerated several times during the pendency of the case.

The findings Appellant had failed to remedy the conditions which led to the removal of the

children and his repeated incarceration prevents him from providing care for the children

are supported by sufficient evidence and are not against the manifest weight of the
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                                            8


evidence. The court therefore did not err in finding the children could not be placed with

Appellant within a reasonable period of time.

       {¶18} 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 such placement can be achieved

without a grant of permanent custody.

       {¶19} The caseworker assigned to the case testified the children were bonded to

Appellant, and he was bonded to them. However, the evidence also demonstrated the

children were very happy and bonded to the foster family. The caseworker testified the

children refer to the foster family’s residence as “home.” K.O. had at times expressed a

desire to live with Appellant and her mother; however, the other children were too young

to express an opinion.      The caseworker testified the children need a stable home

environment, which Appellant could not provide at the time of trial. The guardian ad litem

testified permanent custody was in the best interests of the children, as they were happy

and friendly children who are bonded to their foster family and love their foster parents.

The finding permanent custody was in the best interests of the children was supported by

sufficient evidence, and is not against the manifest weight of the evidence.

       {¶20} The assignment of error is overruled.
Fairfield County, Case No. 18-CA-1, 18-CA-2, 18-3                           9


       {¶21} The judgment of the Fairfield County Common Pleas Court, Juvenile

Division is affirmed.



By: Hoffman, J.

Wise, John, P.J. and

Baldwin, J. concur
