[Cite as In re J.D., 2013-Ohio-2712.]

                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                            :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
J.D.                                         :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
                                             :
                                             :       Case No. 13-CA-13
                                             :
                                             :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Juvenile Division, Case No.
                                                     2009-AB-0093

JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    June 26, 2013



APPEARANCES:

For Appellant                                        For Appellee

AARON R. CONRAD                                      JULIE S. BLAISDELL
120½ East Main Street                                239 West Main Street
Lancaster, OH 43130                                  Suite 101
                                                     Lancaster, OH 43130
For Roberta Prevette
                                                     Guardian ad Litem
ADRIENNE LARIMER
118 West Chestnut Street                             KRISTI McANAUL
Lancaster, OH 43130                                  660 Hill Road North
                                                     Pickerington, OH 43147
For J.D.

ALYSSA PARROTT
144 East Main Street
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-13                                                    2


Farmer, J.

         {¶1}   On September 22, 2009, J.D., born March 2, 2002, was found to be a

dependent child and placed in the temporary custody of appellee, Fairfield County Child

Protective Services. Mother of the child is Roberta Prevette; father is appellant, Lucas

Davis.

         {¶2}   On March 10, 2011, appellee filed a motion for permanent custody of the

child. On August 17, 2012, appellant filed a motion requesting legal custody of the child

be placed with his half-sister, Echo Fox.        Hearings were held on August 21, and

November 20, 2012. By entry filed January 8, 2013, the trial court denied appellant's

motion and granted permanent custody of the child to appellee. Findings of fact and

conclusions of law were attached to the entry.

         {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

         {¶4}   "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE

BEST INTERESTS [OF] J.D. TO PERMANENTLY TERMINATE THE PARENTAL

RIGHTS OF LUCAS DAVIS AND PLACE J.D. IN THE PERMANENT CUSTODY OF

FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES."

                                            II

         {¶5}   "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT

GRANTING LEGAL CUSTODY OF J.D. TO ECHO FOX."
Fairfield County, Case No. 13-CA-13                                                      3


                                             I, II

       {¶6}   Appellant claims the trial court erred in granting permanent custody of J.D.

to appellee as the evidence was not clear and convincing that custody with him or his

half-sister was not in J.D.'s best interests. We disagree.

       {¶7}   R.C. 2151.414(B) enables a trial court to grant permanent custody of a

child if the court determines by clear and convincing evidence that it is in the best

interests of the child. 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.

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

determining the best interests 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;
Fairfield County, Case No. 13-CA-13                                                    4


             (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.

             For the purposes of division (D)(1) of this section, a child shall be

      considered to have entered the temporary custody of an agency on the

      earlier of the date the child is adjudicated pursuant to section 2151.28 of

      the Revised Code or the date that is sixty days after the removal of the

      child from home.
Fairfield County, Case No. 13-CA-13                                                      5


      {¶9}   J.D. has been in appellee's temporary custody for twelve of the last

consecutive twenty-two months.

      {¶10} On August 21, 2012, appellant filed stipulations wherein he admitted to a

lack of compliance with the case plans (Nos. 14, 20, and 21), a criminal history with

approximately twenty incarcerations from May 1998 to May 2012 (No. 28), and

placement with him was not possible within a reasonable time (Nos. 33, 34, and 35).

During the permanent custody hearing, appellant conceded he was unable to care for

J.D. and had not supported the child since April 2010. Day 1 T. at 107-108.

      {¶11} The trial court incorporated appellant's stipulations into its findings of fact

and conclusions of law, and specifically found the following:



             Lucas Davis has demonstrated little desire to work towards the

      goals of the case plan.      Although numerous services were offered to

      Lucas Davis, he has not completed any of the goals of the case plan or

      services provided to him.

             Following the placement of [J.D.] outside her home and

      notwithstanding reasonable case planning and diligent efforts by Fairfield

      County Child Protective Services to assist Lucas Davis to remedy the

      problems that initially caused the child to be placed outside the home,

      Lucas Davis has failed continuously and repeatedly to substantially

      remedy the conditions causing [J.D.] to be placed outside the home.

      Lucas Davis did not utilize services and resources that were made

      available to Lucas Davis for the purpose of changing parental conduct to

      allow him to resume and maintain parental duties.
Fairfield County, Case No. 13-CA-13                                                      6


                Lucas Davis has demonstrated a lack of commitment towards [J.D.]

       by failing to regularly support, visit, or communicate with [J.D.] when able

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

       adequate permanent home for [J.D.].

                Lucas Davis has been repeatedly incarcerated, and the repeated

       incarceration prevents Lucas Davis from providing care for [J.D.].

                Lucas Davis concedes that he is not in a position to appropriately

       parent [J.D.] within a reasonable time and that [J.D.] cannot be placed with

       Lucas Davis within a reasonable time. This information is relevant to the

       Court.



       {¶12} We find the record clearly and unequivocally substantiates the trial court's

findings of fact and conclusions of law as to appellant's ability to care, support, and

nurture J.D.

       {¶13} Appellant also argues that despite his failures, the trial court should have

granted legal custody to his relative placement, his half-sister, Echo Fox. In its findings

of fact filed January 8, 2013, the trial court found the following:



                On August 17, 2012, Lucas Davis filed a motion requesting that

       [J.D.] be placed in the legal custody of his half-sister, Echo Fox. This

       motion was scheduled for a hearing on August 21, 2012 and November

       20, 2012. Echo Fox did not appear before the Court on either hearing

       date. Echo Fox lives in Indiana. When considering whether [J.D.] should

       be placed with Echo Fox, the Court would require a home study from the
Fairfield County, Case No. 13-CA-13                                                          7


       State of Indiana to determine whether the residence and environment of

       Echo Fox would be appropriate for the placement of [J.D.]. There is no

       such home study before the Court. [J.D.] has not had any contact with

       Echo Fox since approximately 2006 or 2007.            All this information is

       relevant to the Court. Given these circumstances, the Court cannot find

       that it is in the best interest of [J.D.] for her to be placed in the legal

       custody of Echo Fox.



       {¶14} In its entry filed January 8, 2013, the trial court determined the following:



              At the conclusion of the testimony, Aaron Conrad, attorney for

       Lucas Davis, made an oral motion to continue the father's motion for legal

       custody to the paternal aunt, Echo Fox, until a later date, as Echo Fox did

       not attend the hearing.    The Court noted that Echo Fox has had two

       opportunities to be present at the hearing on the motion to give her legal

       custody of [J.D.], but Echo Fox did not attend the August 21, 2012

       hearing, nor did she attend the November 20, 2012 hearing. Based on

       her failure to attend and other information presented to the Court, the

       Court OVERRULED Attorney Conrad's oral motion for a continuance.



       {¶15} Ms. Fox lived in Indiana and did not request a home study. Day 2 T. at

50-51. She has had no contact with J.D. since 2009. Id. at 51.

       {¶16} J.D. has bonded with her half-siblings and it is preferable to keep them

together. Day 2 T. at 56. In fact. J.D. wishes to be with her half-siblings. Day I T. at 82.
Fairfield County, Case No. 13-CA-13                                                    8


      {¶17} Upon review, we find the trial court did not err in denying appellant's

motion for relative placement, and find the trial court had clear and convincing evidence

to find the best interests of the child was best served by granting permanent custody to

appellee.

      {¶18} Assignments of Error I and II are denied.

      {¶19} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Juvenile Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                            _______________________________



                                            _______________________________



                                            _______________________________

                                                         JUDGES

SGF/sg 522
[Cite as In re J.D., 2013-Ohio-2712.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                              :
                                               :
J.D.                                           :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 13-CA-13




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, Juvenile division is

affirmed. Costs to appellant.




                                               _______________________________



                                               _______________________________



                                               _______________________________

                                                           JUDGES
