[Cite as In re B.O.C., 2017-Ohio-318.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




IN THE MATTER OF: B.O.C.                     :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
AN ABUSED CHILD                              :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
IN THE MATTER OF: G.F.                       :
                                             :       Case Nos. 16CA68
A DEPENDENT CHILD                            :                 16CA69
                                             :
                                             :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Juvenile Division, Case Nos.
                                                     2008DEP00169 and 2010DEP00027



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 26, 2017




APPEARANCES:

For Appellant                                        For Appellee

DAVID M. WATSON                                      TIFFANY D. BIRD
3 North Main Street                                  731 Scholl Road
Suite 702                                            Mansfield, OH 44907
Mansfield, OH 44902
Richland County, Case Nos. 16CA68 and 16CA69                                               2

Farmer, P.J.

       {¶1}    On August 27, 2008, appellee, Richland County Children Services, filed a

complaint alleging G.F., born January 17, 2008, to be a dependent child. Mother of the

child is appellant, A.S.; father is B.F.

       {¶2}    An adjudicatory hearing was held on December 11, 2008, wherein both

parents stipulated to dependency. The child was placed under the protective supervision

of appellee.

       {¶3}    On February 26, 2010, appellee filed a complaint alleging a second child,

B.O.C, born February 5, 2010, to be an abused and dependent child. Mother of the child

is appellant; father is W.C.

       {¶4}    An adjudicatory hearing was held on March 25, 2010, wherein both parents

stipulated to abuse. The child was placed under the protective supervision of appellee.

       {¶5}    Thereafter, by judgment entry filed April 15, 2011, the trial court placed the

children in the legal custody of Susan Brown, B.O.C.'s paternal aunt, and protective

supervision was terminated.

       {¶6}    On August 28, 2014, appellant filed a motion to modify disposition. On

December 10, 2014, the trial court placed the children in the temporary custody of John

and Nancy Brown with agreement of all parties.

       {¶7}    On December 19, 2014, appellant filed a motion for emergency custody of

G.F. On January 8, 2015, appellee filed a motion for temporary custody of both children.

The trial court placed both children in appellee's temporary custody on February 13, 2015.

       {¶8}    On October 29, 2015, appellee filed a motion for permanent custody of both

children.
Richland County, Case Nos. 16CA68 and 16CA69                                             3


       {¶9}    On January 19, 2016, B.F., father of G.F., appeared before the trial court

and consented to the termination of his parental rights. The trial court terminated his

parental rights on January 21, 2016.

       {¶10} Hearings before a magistrate were held on February 11 and 17, and March

29, 2016. W.C., father of B.O.C., did not attend the hearings and did not contest the

permanent custody motion.

       {¶11} By decision filed April 5, 2016, the magistrate terminated the parents'

parental rights and granted appellee permanent custody of the children. Appellant filed

objections.   By judgment entry filed October 11, 2016, the trial court overruled the

objections and approved and adopted the magistrate's decision.

       {¶12} Appellant filed two appeals, one for each child, and this matter is now before

this court for consideration. The identical assignment of error is as follows:

                                             I

       {¶13} "THE TRIAL COURT'S DECISION TO GRANT THE STATE'S MOTION

FOR PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR AND CONVINCING

EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                             I

       {¶14} Appellant claims the trial court in awarding permanent custody of the

children to appellee, as the decision is not supported by clear and convincing evidence.

We disagree.

       {¶15} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. Cross Truck
Richland County, Case Nos. 16CA68 and 16CA69                                               4

v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). Accordingly,

judgments supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed as being against the manifest weight of the

evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279 (1978). On review

for manifest weight, the standard in a civil case is identical to the standard in a criminal

case: a reviewing court is to examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine "whether in

resolving conflicts in the evidence, the jury [or finder of fact] clearly lost its way and

created such a manifest miscarriage of justice that the conviction [decision] must be

reversed and a new trial ordered."      State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52; Eastley v.

Volkman, 132 Ohio St .3d 328, 2012-Ohio-2179. In weighing the evidence, however, we

are always mindful of the presumption in favor of the trial court's factual findings. Eastley

at ¶ 21.

       {¶16} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part the following:



              (E) In determining at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code whether a child cannot be placed with either parent within a

       reasonable period of time or should not be placed with the parents, the court

       shall consider all relevant evidence. If the court determines, by clear and

       convincing evidence, at a hearing held pursuant to division (A) of this
Richland County, Case Nos. 16CA68 and 16CA69                                          5


     section or for the purposes of division (A)(4) of section 2151.353 of the

     Revised Code that one or more of the following exist as to each of the child's

     parents, the court shall enter a finding that the child cannot be placed with

     either 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 parents to remedy the problems that initially caused the child

     to be placed outside the home, the parent has failed continuously and

     repeatedly to substantially remedy the conditions causing the child to be

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

     substantially remedied those 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

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

     resume and maintain parental duties.

            (2) Chronic mental illness, chronic emotional illness, intellectual

     disability, physical disability, or chemical dependency of the parent that is

     so severe that it makes the parent unable to provide an adequate

     permanent home for the child at the present time and, as anticipated, within

     one year after the court holds the hearing pursuant to division (A) of this

     section or for the purposes of division (A)(4) of section 2151.353 of the

     Revised Code;
Richland County, Case Nos. 16CA68 and 16CA69                                                  6


              (4) The parent has demonstrated a lack of commitment toward the

       child by failing to regularly support, visit, or communicate with the child when

       able to do so, or by other actions showing an unwillingness to provide an

       adequate permanent home for the child;

              (16) Any other factor the court considers relevant.



       {¶17} R.C. 2151.414(B)(1) specifically states permanent custody may be granted

if the trial court determines, by clear and convincing evidence, that it is in the best interest

of the child and:



              (a) The child is not abandoned or orphaned***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.

              (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***.

              (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.
Richland County, Case Nos. 16CA68 and 16CA69                                              7




       {¶18} Clear and convincing evidence is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of

proof required to sustain an issue must be clear and convincing, 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." Cross at 477.

       {¶19} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child:



                (D)(1) In determining the best interest of a child at a hearing held

       pursuant to division (A) of this section or for the purposes of division (A)(4)

       or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised

       Code, the court shall consider all relevant factors, including, but not limited

       to, the following:

                (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;
Richland County, Case Nos. 16CA68 and 16CA69                                              8


             (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.



      {¶20} Although the assignment of error is written with broad language, appellant

argues the trial court erred in finding R.C. 2151.414(B)(1)(d) applied. A review of the

magistrate's April 5, 2016 decision and the trial court's October 11, 2016 judgment entry

discloses that although R.C. 2151.414(B)(1)(d) was found to apply, the provisions of R.C.

2151.414(B)(1)(a) and R.C. 2151.414(E)(1), (2), and (4) were also found to apply.

Therefore, we find the two-issue rule is applicable sub judice. The trial court had an

alternate, independent ground for terminating parental rights, finding the children cannot

and/or should not be placed with any parent at this time or in the foreseeable future as
Richland County, Case Nos. 16CA68 and 16CA69                                          9


they failed continuously and repeatedly to remedy the problems which caused the

children to be removed from the home.

       {¶21} Throughout the long history of this case, including legal and temporary

custody being granted to relatives, appellant has maintained a hostile and uncooperative

attitude with agency personnel, and has refused to keep in regular contact with the

agency. T. at 46-47, 54, 115-116. Despite appellee's lengthy involvement, at the time of

the permanent custody hearings, appellant still had the same issues that she had four

and one-half years ago. T. at 130-131.

       {¶22} Appellant's case plan included drug and alcohol assessment and any follow

up treatment as recommended, mental health evaluation and treatment, random drug

screens, and meeting the basic needs of the children. T. at 105-106.

       {¶23} Appellant did not complete the drug and alcohol assessment and refused

random drug screens. T. at 107-108, 109-110. She refused a court-ordered drug screen

during the second day of hearings prior to her testimony. T. at 255-257. Appellant left

the courthouse because of a pending contempt for her refusal. T. at 287-288, 292-293.

She did not participate in the remainder of the hearing. T. at 304.

       {¶24} Appellant is homeless and has no verifiable employment. T. at 111, 113-

114. The caseworker opined appellant was unable to meet the basic needs of the

children.   T. at 114.   In particular, the treatment plan for G.F. requires parental

commitment and follow-through regarding behavioral issues and grades in school. T. at

90-93, 207-208.

       {¶25} Appellant's visitations with the children were chaotic at best. Appellant

yelled and screamed and refused to accept directions or advice. T. at 45-54, 118.
Richland County, Case Nos. 16CA68 and 16CA69                                         10


Appellant interaction with the children was distant, demanding, argumentative, and

aggressive, resulting in the children becoming angry, agitated, and upset. T. at 49-56,

118, 132.

       {¶26} Appellant testified she has "smoked pot all my life," but has not smoked in

about six months. T. at 260. She admitted to not following through on drug or alcohol

treatment and obtaining a mental health evaluation, and agreed she did not complete the

case plan or cooperate with agency personnel. T. at 260-263, 267-268. Appellant

admitted to not having housing and an income. T. at 264-265. Her attitude was "I don't

want to do what you guys want me to do." T. at 260. "[E]very time I do what you guys

want me to do I get screwed anyways, so why do it because I'm going to get screwed

anyways." T. at 260-261. During the March 10, 2011 legal custody hearing, appellant

admitted to using marijuana to self-medicate. March 10, 2011 T. at 14-16. During this

same hearing, appellant was asked what she needed to be compliant with her medication

and stop her chronic use of marijuana, and she responded: "You guys to give me my kids

back and get out of my face, and I'll be just fine." Id. at 23.

       {¶27} From our review of the legal custody hearing to the permanent custody

hearings, we find appellant has refused to comply with the case plan, and she blames all

her failures on appellee and the requirements of the case plan. It is clear that all

reasonable efforts have been made and appellant's attitude and lack of cooperation have

resulted in the loss of permanent custody.

       {¶28} Although appellant does not dispute best interest, we find both children

have benefited from their respective foster placement. The children need a stable home

environment and structure, as well as weekly counseling. T. at 25-27, 93-94, 193, 197.
Richland County, Case Nos. 16CA68 and 16CA69                                              11


B.O.C. has stated she does not want to live with appellant. T. at 29. G.F. struggles with

change, and because of his hyperactivity and impulsive behavior, he needs ongoing

medication and therapy/counseling, and has improved in the last few months. T. at 95-

96, 192-193, 206-208. The children do well together and each has a good, positive

bonded relationship with their respective foster parents. T. at 122-124.

       {¶29} Upon review, we find sufficient clear and convincing evidence to support the

trial court's decision on best interest and the granting of permanent custody of the children

to appellee.

       {¶30} The sole assignment of error is denied.

       {¶31} The judgment of the Court of Common Pleas of Richland County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




SGF/sg 15
