[Cite as In re D.P., 2019-Ohio-4970.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
                                                  Hon. John W. Wise, P. J.
IN THE MATTER OF:                                 Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.

        D.P.                                      Case No. 2019CA00120

                                                  OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case No.
                                               2018JCV00379


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         December 2, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES B. PHILLIPS                              AARON KOVALCHIK
STARK COUNTY JFS                               116 Cleveland Avenue, NW
402 2nd Street, SE                             Suite 808
Canton, Ohio 44702                             Canton, Ohio 44702
Stark County, Case No. 2019CA00120                                                     2


Wise, P. J.

      {¶1}    Appellant-Father C.P. appeals the judgment of the Stark County Common

Pleas Court, Juvenile Division, awarding permanent custody of his minor child D.P. to

Appellee Stark County Department of Job and Family Services.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant-Father C.P. and Mother S.W. are the parents of the minor

children, K.P. (DOB 02/19/08), J.P. (DOB 05/13/17) and D.P. (DOB 5/13/17).

      {¶3}    On April 12, 2018, SCJFS filed a complaint alleging the dependency and/or

neglect of D.P. (DOB 05/13/17). The allegations of the complaint centered on both

parent's persistent drug use, poor home conditions, and medical neglect of the child. The

SCJFS had attempted to work voluntarily with the family in a non-court case since August

of 2017. Those efforts were unsuccessful, and the complaint was filed.

      {¶4}    On April 13, 2018, a shelter care hearing was held. The parents stipulated

to probable cause. Based on the stipulations, the trial court found that probable cause

existed for the involvement of SCJFS and granted emergency temporary custody to the

Agency.

      {¶5}    On May 7, 2018, a CASA report was filed, and on May 9, 2018, an initial

case plan was filed.

      {¶6}    On July 5, 2018, the parents failed to appear at an adjudication hearing.

Based on the evidence presented, the trial court found the minor children to be dependent

and placed them into the temporary custody of SCJFS. The trial court approved and

adopted the case plan and found that SCJFS had made reasonable efforts to prevent

the need for the continued removal of the children from the home.
Stark County, Case No. 2019CA00120                                                       3


       {¶7}     On October 9, 2018 and March 8, 2019, the trial court reviewed the case.

The trial court approved and adopted the case plan and found that SCJFS had made

reasonable efforts to prevent the need for the continued removal of the children from the

home. The trial court also found that compelling reasons existed to preclude a request

for permanent custody only at the October 9, 2018 hearing.

       {¶8}     On February 11, 2019, SCJFS filed a motion seeking permanent custody of

the children. The original permanent custody hearing date had to be continued due to the

serious illness of the ongoing caseworker.

       {¶9}     The Guardian ad Litem for D.P. submitted a report stating that D.P. was

adjusted to his foster family and doing well and recommending that D.P. be placed into the

permanent custody of SCJFS.

       {¶10} On July 2, 2019, the trial court heard evidence on the motion seeking

permanent custody of the minor children. Tr. at 3-45. At the hearing, SCJFS presented

evidence regarding Appellant-Father and K.P., J.P., and D.P. Tr. at 10-20, 20-33.

Specifically, Caseworker Sue Snyder testified that Appellant had not completed his case

plan, had not significantly reduced the risk he posed to his children, had abandoned his

children, and that Appellant was currently serving a four-year prison sentence for

Felonious Assault and Domestic Violence against the children's mother. Tr. at 10-20. Ms.

Snyder also testified that permanent custody was in the best interests of the children.

Tr. at 20-33.

       {¶11} Appellant Father also testified in the Best Interest Hearing. Tr. at 36-42. He

stated that he is doing well in prison, that he is sober and is taking GED classes. Id.

Appellant admitted to currently serving a four-year prison sentence and not visiting his
Stark County, Case No. 2019CA00120                                                         4


children in over 90 days before he was arrested on his current charge. Tr. at 37, 41.

Appellant also admitted that if he were granted an early judicial release, he would be

transferred to SRCCC for several more months, and children are not allowed at that

facility. Tr. at 41.

        {¶12} Mother was present at the hearing, stipulated to the granting of permanent

custody, and signed a stipulation form voluntarily relinquishing her parental rights.

        {¶13} The Guardian ad Litem for the children submitted a report recommending

that permanent custody of the children be granted to SCJFS. The trial court took the

matter under advisement. Tr. at 45.

        {¶14} On July 8, 2019, the trial court issued its findings of fact granting permanent

custody of K.P., J.P. and D.P. to SCJFS and terminating Appellant's parental rights.

Specifically, the trial court found that, despite reasonable efforts by SCJFS, the minor

children could not and should not be placed with Appellant within a reasonable amount

of time, Appellant had abandoned the children, and the grant of permanent custody was

in the children’s best interest.

        {¶15} Appellant-Father now appeals, assigning the following errors for review:

                                   ASSIGNMENTS OF ERROR

        {¶16} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR

CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS

TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

        {¶17} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
Stark County, Case No. 2019CA00120                                                             5


OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

                                                   I.

       {¶18} Appellant-Father argues that the trial court’s finding that D.P. could not be

placed with him within a reasonable period of time was against the manifest weight and

sufficiency of the evidence.

       {¶19} 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).

       {¶20} 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

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.
Stark County, Case No. 2019CA00120                                                         6


       {¶21} 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.”

       {¶22} Further, 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.

       {¶23} Pursuant to §2151.414(B), 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:

               (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
Stark County, Case No. 2019CA00120                                                   7


     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.

            (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.
Stark County, Case No. 2019CA00120                                                          8


       {¶24} 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

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

       resume and maintain parental duties.

              ***

              (10) The parents has abandoned the child.

              ***

              (16) Any other factors the court considers relevant.


       {¶25} Upon review, the trial court’s finding that D.P. could not be placed with

Appellant-Father within a reasonable period of time was not against the manifest weight

or sufficiency of the evidence. In concluding that the child cannot or should not be placed
Stark County, Case No. 2019CA00120                                                           9


with Appellant within a reasonable period of time, there was enough evidence for the trial

court to rely upon R.C. §2151.414(E)(1). Caseworker Snyder testified that Appellant was

currently serving a four year prison term for assaulting the child’s mother. Tr. at 17.

Appellant-Father failed to complete his drug and alcohol assessment. Tr. at 14-15.

Appellant-Father failed to keep the home in a clean condition prior to the initiation of the

court case. Id. Subsequent to the filing of the court case, Appellant failed to engage in

recommended substance abuse treatment. Tr. at 16. Appellant tested positive for alcohol

and marijuana throughout the pendency of the cases. Tr. at 16. Appellant failed to

complete a parenting assessment with Northeast Ohio Behavioral Health as

recommended. Tr. at 15-16. Appellant did not complete his case plan or reduce the risks

that led to the involvement of the Agency in this case. Tr. at 16-17.

       {¶26} Caseworker Snyder further testified that Appellant also failed to visit the

children prior to his incarceration. Tr. at 16-17. Appellant’s last visit with his children was

on June 6, 2018. Tr. at 16. More than 90 days lapsed between June 6, 2018, and the

July 2, 2019, the date of the trial. Appellant confirmed the testimony of the case worker.

Tr. at 41.

       {¶27} For the aforementioned reasons, there was more than enough evidence for

the trial court to conclude that D.P could not and should not be replaced with Appellant

within a reasonable amount of time.

       {¶28} Appellant's first assignment of error should be overruled.

                                                  II.

       {¶29} In his second assignment of error, Appellant-Father argues that the finding

that permanent custody was in the best interest of D.P. was against the manifest weight

and sufficiency of the evidence.
Stark County, Case No. 2019CA00120                                                          10


       {¶30} 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.

       {¶31} Because custody issues are some of the most difficult and agonizing

decisions a trial judge must make, he or she must have wide latitude in considering all

the evidence and such a decision must not be reversed absent an abuse of discretion.

Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller

(1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. 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. CA–5758, 1982 WL 2911.

       {¶32} As noted in our recitation of the facts, the trial court conducted the

permanent custody trial in this matter on July 2, 2019. During the best interest portion of

the trial, Caseworker Snyder testified that D.P., who is now 2 years old and was 11 months

old at the time of removal from his home, has a lazy eye, which required corrective surgery.

This child also has speech delays.
Stark County, Case No. 2019CA00120                                                        11


       {¶33} Caseworker Snyder further testified that the foster parents are meeting the

medical needs of the children. Tr. at 25. She stated that the children have been with their

foster family since September, 2018, that they are bonded with the foster family and the

foster family wishes to adopt the children. Tr. at 26-27, 31. Finally, she stated that it was

her opinion that permanent custody would be in the children’s best interest as the children

would have stability and permanence. Tr. at 28-32.

       {¶34} Additionally, the Guardian ad Litem for the children also agreed that

permanent custody is in the best interests of the children.

       {¶35} Based on the foregoing, we find that the trial court’s finding that permanent

custody was in the best interest of D.P. was supported by the evidence.

       {¶36} Appellant’s second assignment of error is overruled.

       {¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Stark County, Ohio, is affirmed.


By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.

JWW/d 1120
