[Cite as In re A.P., 2011-Ohio-1909.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
    IN THE MATTER OF:                          :   W. Scott Gwin, P.J.
                                               :   Sheila G. Farmer, J.
               A.P.                            :   Julie A. Edwards, J.
                                               :
         (Minor Child)                         :   Case No. 10-CA-65
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Fairfield County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. 2008-AB-123

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             April 14, 2011

APPEARANCES:

For Appellee                                        For Appellant – Jason Barbee, Father

JULIE S. BLAISDELL                                  JACOB ORT
Assistant Prosecuting Attorney                      13297 Rustic Drive
Fairfield County, Ohio                              Pickerington, Ohio 43147
201 South Broad Street – 4th Floor
Lancaster, Ohio 43130

For Guardian Ad Litem & A.P.

CHRISTINE McGILL
123 Broad Street, Ste. 207
Lancaster, Ohio 43130
[Cite as In re A.P., 2011-Ohio-1909.]


Edwards, J.

        {¶1}     Appellant, Jason Barbee, appeals from the December 13, 2010, Entry of

the Fairfield County Court of Common Pleas, Juvenile Division, terminating appellant’s

parental rights and granting permanent custody of A.P. to Fairfield County Child

Protective Services.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     Appellant Jason Barbee and Melissa Price are the parents of A.P., who

was born on October 4, 2007. The two were never married.

        {¶3}     On June 23, 2008, Fairfield County Department of Job and Family

Services (FCCPS) filed a complaint alleging that A.P. was a dependent child. The

complaint indicated that appellant and Melissa had a history with Fairfield County Child

Protective Services dating back to 2008 that included concerns over illegal substance

use, untreated mental health concerns and domestic violence. Following a shelter care

hearing, A.P. was placed in the temporary custody of FCCPS.

        {¶4}     As memorialized in an Entry filed on August 19, 2008, A.P. was found to

be a dependent child and temporary custody of her was granted to Fairfield County

Child Protective Services. The trial court, in its Entry, ordered appellant to submit to an

evaluation at the Recovery Center to determine whether he had issues with drugs

and/or alcohol and to successfully comply with all recommendations. Appellant also

was ordered to submit to random drug and/or alcohol screens.

        {¶5}     On April 28, 2009, the temporary custody of A.P. with Fairfield County

Child Protective Services was terminated and A.P. was returned to the custody of

Melissa under court ordered protective supervision. As memorialized in an Entry filed
Fairfield County App. Case No. 10-CA-65                                                   3


on August 18, 2009, A.P. was again placed in the temporary shelter care custody of

Fairfield County Child Protective Services.

       {¶6}   Thereafter, on September 14, 2009, Fairfield County Child Protective

Services filed a motion seeking temporary custody of A.P. Pursuant to an Entry filed on

October 27, 2009, A.P. was again placed in the temporary custody of Fairfield County

Child Protective Services.

       {¶7}   On March 3, 2010, Fairfield County Child Protective Services filed a

motion seeking permanent custody of A.P. The motion stated, in relevant part, as

follows:

       {¶8}   “The agency represents to the Court that there has been a lack of

progress and consistency for both Melissa Price and Jason Barbee, [appellant] parents

of A.P. The agency represents to the Court that A.P. cannot be reunified with either

parent within a reasonable time or should not be reunified with either parent.”

       {¶9}   On September 9, 2010, the Guardian Ad Litem filed a report

recommending that A.P. be placed in the permanent custody of Fairfield County Child

Protective Services.

       {¶10} Thereafter, a trial on such motion commenced on October 26, 2010. Prior

to the start of trial, Melissa, who was represented by counsel, indicated to the trial court

that she was not contesting the agency’s motion for permanent custody of A.P.

       {¶11} At the trial, appellant testified that he had three children, the youngest of

whom was A.P. While his oldest child was living with him, appellant had lost visitation

rights with respect to his middle child. Appellant testified that he had been in jail three

times and that, in January of 2008, he went to jail after violating his probation by failing
Fairfield County App. Case No. 10-CA-65                                                     4


a drug test for marijuana. At the time, appellant was on probation for a 2005 driving

under the influence conviction. Appellant testified that he was in jail again from May 28,

2008, to July 29, 2008, for the same thing and then was in jail again from September 2,

2008, to October 12, 2008, which was during A.P.’s first birthday. Appellant testified that

he was in jail during such time because he purposefully took drugs so that he could fail

his drug test and finish his last thirty days in jail. Appellant, when asked, admitted that

he knew that he would miss A.P.’s first birthday if he failed his drug test and went back

to jail.

           {¶12} At trial, appellant testified that he was picked up on a second driving under

the influence charge on March 14, 2010, and served ten days in jail, from July 19, 2010,

to July 29, 2010. At the time, appellant’s blood alcohol content was .12, but appellant

denied that he was intoxicated at the time. Appellant, as of the time of the trial, was on

probation for the second driving under the influence charge and knew that, if he violated

the same, he could end up serving 170 days in jail. According to appellant, he had

never been to jail for anything other than the driving under the influence or the probation

violations. He testified that the last time that he used alcohol was in March of 2010.

           {¶13} Appellant testified that his oldest daughter came to live with him in May of

2010 and that, when he was in jail in July for ten days, his mother and father took care

of her. Appellant testified that he lived with his parents. He admitted that it was difficult

for him to take care of children while he was in jail.

           {¶14} Appellant testified that, in late July of 2008, he was ordered to submit to

random screens for drugs and/or alcohol, to get an evaluation of drug and/or alcohol

issues and to follow any recommendations. He testified that his case plan required him
Fairfield County App. Case No. 10-CA-65                                                5


to follow through with counseling for drugs and alcohol and that he agreed with the case

plan. Although he was released from jail on October 12, 2008, appellant did not get an

evaluation for drugs and/or alcohol at Scioto Paint Valley until November or December

of 2008, because it was hard to get in touch with his counselor, Robert Frazier. He

testified that it sometimes took two or three months to get in to see Frazier. Appellant

testified that he had not submitted to any screens for drugs or alcohol until October 14,

2008, although he was ordered to do so on July 31, 2008.

       {¶15} Appellant testified that he had not received group counseling and that he

received individual counseling from Robert Frazier every two weeks. He testified that he

last saw Frazier the end of September of 2010, and that although he had rescheduled a

session that was set for the first week of October, he missed the same because he did

not write the date down. Appellant had an appointment to see Frazier scheduled for

November 15, 2010. Appellant had started counseling with Frazier in 2006 due to his

first driving under the influence. He testified that the only time that he had shown any

consistency in meeting with Robert Frazier was in August and September of 2010.

Appellant also testified that he did not attend group counseling because the group

sessions were held on Tuesdays at 5:00 p.m. and, if he was not at work, he was

exercising visitation.

       {¶16} Appellant, when asked, testified that according to the classes that he had

attended, he thought that he was an alcoholic. However, on direct, he testified that he

did not believe that he had a substance abuse or alcohol problem. He was unable to

state how many sober days that he had and, while he started attending twelve-step
Fairfield County App. Case No. 10-CA-65                                                  6


meetings, stopped once he reached step three. He had not attended a twelve-step

program in over a year and did not have a sponsor.

       {¶17} Testimony was adduced that appellant had been living with his parents for

approximately two years and that he lived on and off with them for his whole life.      He

does not pay rent. When asked if he would financially be able to live on his own,

appellant indicated that he would not and, if forced to leave his parents’ house, would

try to find public assistance. Appellant testified that he was not currently employed and

that he last had a job in April of 2010 as an electrician through a temporary agency. He

had worked for the agency for approximately a year and a half until he was laid off.

Appellant testified that he was on unemployment and had roughly five months left

before it expired. He testified that he was waiting on one company to try and call him

back and was not looking for any other type of job.

       {¶18} At trial, appellant testified that his oldest daughter lived with him and that

he paid for her food, clothing and necessities. He had not paid any child support for A.P.

since April of 2010.

       {¶19} Appellant was questioned about the trial court’s July 2008, order that he

submit to random screens for drugs and/or alcohol. He testified that he missed one

screen in October of 2010, and missed three screens in August of 2010, because he

was having problems with the breathalyzer system hooked up to his car. Appellant

missed six screens in July of 2010, but was in jail ten of those days, missed three

screens in March of 2010, two in February of 2010, and six in January of 2010.

Appellant did not have the breathalyzer system hooked up to his car until after his

second driving under the influence. Appellant missed nine screens in December of
Fairfield County App. Case No. 10-CA-65                                                 7


2009, four in November of 2009, four in October of 2009 and three in September of

2009.

        {¶20} Appellant testified that he did not know who A.P.’s pediatrician was and

that he was ready for her to come home with him right away. While he used to see her

on Sundays, he testified that he no longer did because of non-compliance with drug

testing, although he continued seeing A.P. every Tuesday and Thursday from 5:00 to

7:00 for a year. Appellant testified that, in November of 2009, he missed two out of four

visits with A.P. because of the weather and missed one visit in January of 2010. In

February of 2010, appellant cancelled five out of eight visits due to the weather and in

March of 2010, cancelled five out of nine visits due to his driving under the influence

because he did not have driving privileges. Appellant also missed one visit in April of

2010, four out of eight in May of 2010, four out of nine in June of 2010, and in July of

2010, cancelled three visits. The following is an excerpt from his testimony:

        {¶21} “Q. Okay. So basically in September, you only missed one visit and that

would have been at the end of the month?

        {¶22} “A. Yes.

        {¶23} “Q. And I have that you haven’t missed any visits so far in October, is that

correct?

        {¶24} “A. Correct.

        {¶25} “Q. But that you’ve left early twice to go screen.

        {¶26} “A. Yes.

        {¶27} “Q. Is that correct?

        {¶28} “A. Yes, Ma’am.
Fairfield County App. Case No. 10-CA-65                                                   8


        {¶29} “(Pause)

        {¶30} “Q. So is it fair to say that with respect to visiting A.P. that you’ve really

only been consistent just in September and October of 2010?

        {¶31} “A. Yes.

        {¶32} “Q. And then in August of 2010 that you canceled four out of nine visits,

does that sound accurate?

        {¶33} “(Pause)

        {¶34} “A. Yes, because that was interlock problems.

        {¶35} “Q. And I had that you were late for one visit, that would have been

interlock?

        {¶36} “A. I believe that was when my muffler fell off.

        {¶37} “Q. Okay. But in September, 2010, I have that you attended all of your

visits, is that correct?

        {¶38} “A. Yes.

        {¶39} “Q. And I believe that in August, I take that back, I have that you missed

one visit at the end of September, that you were having back problems, is that….

        {¶40} “Q. But that (sic) before that you were inconsistent, would you agree with

that?

        {¶41} “A. Sometimes.” Transcript at 84- 86.

        {¶42} Tracy Hotel, a caseworker for Fairfield County Child Protective Services,

testified that at one point, she was assigned to A.P. and remained the caseworker until

August of 2009. She testified the agency became involved with A.P. after there were

reports that Melissa was using drugs with the kids present and had track marks on her
Fairfield County App. Case No. 10-CA-65                                                  9


legs and that there were reports that appellant and Melissa were arguing. Hotel testified

that A.P. was in a foster home from June 24, 2008 until April 28, 2009 before going

back to live with her mother. A.P. then lived with her mother until August of 2009 under

court-ordered protective supervision. After the agency regained temporary custody in

August of 2009, A.P. lived in a kinship home with Sherry Hines and was living there as

of the time of trial.

       {¶43} Hotel testified that the agency came up with a case plan for appellant that

he signed off on. The case plan required appellant to address his substance abuse

issues. The agency wanted appellant to submit to random drug and/or alcohol screens

and to obtain counseling for his drug and/or alcohol issues. Hotel testified that from July

of 2008 through August of 2009, appellant screened approximately 57 times and only

missed seven screens during that period. She testified that he was very sporadic with

the counseling for drugs and alcohol and that, while she was the caseworker, it was her

opinion that appellant was not complying with his case plan.

       {¶44} Hotel testified that appellant’s case plan also required him to maintain

housing and employment and that appellant had stable housing with his parents. She

testified that appellant successfully completed this aspect of his case plan while she

was the caseworker. Hotel also testified that appellant visited with A.P. about 29 out of a

possible 36 times while she was the caseworker and that appellant was appropriate

during the visits.

       {¶45} The next witness to testify was Robert Frazier, a clinical counselor. Frazier

testified that appellant had been a client of his for about three years and that appellant

received individual counseling usually Wednesdays from 7:00 p.m. to 8:00 p.m. for drug
Fairfield County App. Case No. 10-CA-65                                               10


and alcohol issues and relationship issues.     He testified that there were breaks in

appellant’s consistency of attending due to work and money issues. Frazier testified that

appellant had a substance abuse problem due to alcohol and marijuana use. He

testified that appellant had made progress towards recovery and that he believed that

appellant would be able to parent. On cross-examination, Frazier testified that appellant

had seen him consistently since August of 2010, and that he believed that appellant had

a drinking problem, but was “in a pretty stable remission.” Transcript at 133. Frazier

admitted that appellant, from October of 2008, to August of 2010, was very inconsistent

in seeing him and that he was still recommending that appellant see him twice month.

He also testified that there was no reason appellant could not attend group counseling

because appellant had been unemployed since April of 2010.

      {¶46} Stacey Bergstrom, a caseworker for Fairfield County Child Protective

Services, testified that she was A.P.’s current caseworker and had been her caseworker

since mid-August of 2009. The following testimony was adduced when she was asked

about whether appellant, as part of his case plan, had been consistent with his screens

for drugs and/or alcohol:

      {¶47} “A. As far as his drug screening, um, that’s been one, uh, area that I’ve

tried to work with Jason over the last, um, year or so on.        Um, he’s been fairly

inconsistent, um, as far as….

      {¶48} “Q. And when you say you’ve tried to work with him, what kind of things

are you, what do you mean when you say that?

      {¶49} “A. Uh, I mean, any meeting, phone conversation, home visit that I’ve had

with Jason, the conversation of drug screens has come up and, you know, what is
Fairfield County App. Case No. 10-CA-65                                               11


stopping him from doing his drug screening, why he isn’t being consistent and

encouraging him to, to do that service as it was a barrier for him to be able to reunify

with [A.P.] Um, as far as his consistency, um, he hasn’t been consistent up until about a

couple months ago. Um, he would go through, uh, short periods of time where he

would be consistent and then he wouldn’t screen for long periods of time and kind of go

back and forth in that manner. Um, for instance, I got the case in August of 2009. Um,

in September he screened for the most part; he had three missed screens. In October

of 2009, he had four missed screens and in November of 2009, he had, um, one, two,

three, three to four missed screens and then he went through a huge chunk of time

where he didn’t screen all from November 22nd through January 2, 2010, he wasn’t

consistent at all with his screening and produced no screens. And then he missed

screens on January 8, 2010, January 11th, January 21st, January 25th, the 27th, February

10th, February 16th. I know a couple of those times in February the weather was rough

and he had called me and been in communication about what he should do because the

weather was rough and I advised that he use him, use his own judgment. Um, he

missed screens March of 2010 and then he went through another huge chunk of time

from March 25, 2010 to June 27, 2010 without any drug screening. Um, and then

another chunk of time from July 13, 2010 through August 2, 2010. Um, and since

August, he’s been fairly consistent; he missed, um, I believe three in August, 2010 and

then one in October 4, 2010. During the month of September and October, 2010, he

has been consistent, but prior to that date it’s been very inconsistent.

       {¶50} “Q. All right. And does that cause the agency to still have concerns about

his drug or alcohol use?
Fairfield County App. Case No. 10-CA-65                                              12


       {¶51} “A. Yes.

       {¶52} “Q. And why is that?

       {¶53} “A. Um, the drugs, the drug screening is set up in order for parents to be

able to show their sobriety, to prove that they are being clean and sober without our

drug screens. Uh, from parents that we work with, they, we have no way of knowing if

they’re being clean and sober. Um, I know Jason reported to me that he wasn’t using,

um, but again, I had no proof of that and then we had to concern of his DUI in March,

2010, which, um, was a definite indicator that he was using alcohol.” Transcript at 159-

162.

       {¶54} Bergstrom further testified that appellant’s counseling with Robert Frazier

had been inconsistent over the last year and that appellant had gone for months at a

time within counseling. Testimony was adduced that Frazier was out due to medical

reasons for a chunk of time, and that appellant, although advised to seek counseling

from someone else at the agency during such time, did not do so. She further testified

that while a twelve step program and sponsor were not part of appellant’s case plan,

she had talked with appellant in August of 2009 about getting into meetings and getting

a sponsor. She testified that the agency was concerned that appellant had not been to a

meeting in over a year, especially given his recent driving under the influence.

       {¶55} Bergstrom testified that appellant’s mother, in September of 2010, had

expressed interest in having placement of A.P. At the time, the trial in this matter was

set for September 14, 2010. Bergstrom testified that there was a concern over the

grandparents’ health because both were on medical leave and, as of the fall and winter

of 2010, were not in a position to take care of A.P. She testified that appellant had
Fairfield County App. Case No. 10-CA-65                                                13


complied with the aspect of the case plan requiring him to maintain stable housing, but

that, due to his unemployment, the agency was concerned with his inability to support

himself and A.P. once his unemployment ran out. Bergstrom testified that she

suggested that appellant look for employment outside the electrical field, but that

appellant declined to do so. She testified that appellant had not complied with the

aspect of his case plan requiring him to maintain stable employment and that appellant

had been inconsistent with his visits with A.P. until recently.

       {¶56} Bergstrom testified that A.P. had been in the agency’s custody going on

24 months and that, other than appellant’s parents, no other family members had come

forward requesting placement. She testified that A.P. had been with Sherry and Terry

Hines for an extensive period of time and had bonded with them. Bergstrom testified

that Sherry Hines was A.P.’s childcare provider when either the agency had custody or

Melissa had custody with court-ordered protective supervision. From April of 2009 to

August of 2009, the Hines’ family provided protective daycare for A.P. According to

Bergstrom, Melissa had suggested Sherry Hines. Bergstrom testified that A.P. needed a

legally secure permanent placement because she needed stability and consistency and

that A.P. could not get this type of placement with appellant due to his substance abuse

issues and his legal difficulties. She indicated that the agency was concerned that

appellant had been in jail five times in the last three years. The following is an excerpt

from her testimony:

       {¶57} “Q. What is the position of the Agency as to what would be, well, let me

back up. We talked about her need for a legally secure permanent placement and

you’ve testified that she can’t have that, can’t find that with her mother and that she
Fairfield County App. Case No. 10-CA-65                                                14


cannot find that with her father. Would she be able to find that type of legally secure

permanent placement if she were to be placed in the permanent custody of Fairfield

County Child Protective Services?

        {¶58} “A. the hope would be that she would be able to, um, that she would be

able to find a forever home and that a family would be able to adopt her and provide her

that stability.

        {¶59} “Q. And is that what the Agency believes to be in her best interest, to be

placed in the permanent custody of Fairfield County Child Protective Services?

        {¶60} “A. Yes.” Transcript at 190-191.

        {¶61} Ray Barbee, Jr., A.P.’s grandfather, testified that he was an electrical

engineer and that he would be able to financially support A.P. if he received custody of

her. He testified that he and his wife had not done anything regarding obtaining custody,

but that they had let it be known that they would like custody of her if anything came up.

He testified that their medical issues had been taken care of. Barbee further testified

that he believed that his oldest son had contacted the agency about obtaining custody

of A.P., but that he did not know what became of it. He testified that he was financially

able and willing to assume legal custody of A.P.

        {¶62} Pursuant to an Entry filed on December 13, 2010, the trial court

terminated appellant’s parental rights and granted permanent custody of A.P. to

Fairfield County Child Protective Services. The trial court, in its Entry, found that

reasonable efforts had been made by the agency to finalize permanency for A.P. The

trial court, in its Findings of Fact and Conclusions of Law filed on December 13, 2010,

found that A.P, could not or should not be placed with appellant within a reasonable
Fairfield County App. Case No. 10-CA-65                                             15


time and that it would be in A.P.’s best interest for appellant’s parental rights to be

terminated.

      {¶63} Appellant now raises the following assignments of error on appeal:

      {¶64} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION OF

FAIRFIELD     COUNTY     CHILD     PROTECTIVE      SERVICES      FOR     PERMANENT

CUSTODY OF THE MINOR CHILD A.P. AS THE STATE OF OHIO FAILED TO

ESTABLISH     THE    JURISDICTIONAL       PREREQUISITES       FOR    A   GRANT     OF

PERMANENT CUSTODY AS SET FORTH IN R.C. § 2151.414.

      {¶65} “II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

GRANTED THE MOTION OF FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES

IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF THE FACTS

REQUIRED BY R.C. § 2151.414.

      {¶66} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT REASONABLE

EFFORTS NEED NOT BE EXPENDED TO REUNIFY THE APPELLANT WITH HIS

MINOR CHILD PURSUANT TO OHIO REVISED CODE 2151.419 IN ITS JUDGMENT

ENTRY DATED APRIL 23, 2009.

      {¶67} “IV.    FAIRFIELD      COUNTY      CHILD      PROTECTIVE       SERVICES

PRESENTED INSUFFICIENT EVIDENCE FOR THE COURT TO GRANT LEGAL

CUSTODY PURSUANT TO R.C. 2151.353(A)(3) AND THE COURT’S DECISION WAS

AGAINST THE MANIFEST WEIGHT TO THE EVIDENCE.”

      {¶68} Because appellant had addressed all of his assignments of error together,

we shall do the same.
Fairfield County App. Case No. 10-CA-65                                                     16


                                             I, II, III, IV

       {¶69} Appellant, in his four assignments of error, argues that the trial court erred

in terminating appellant’s parental rights and granting permanent custody of A.P. to

Fairfield County Child Protective Services. We disagree.

       {¶70} 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 (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118; In re: Adoption of

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

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

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. 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.

       {¶72} 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
Fairfield County App. Case No. 10-CA-65                                                     17


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 (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273:

        {¶73} “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.”

        {¶74} 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,

1997-Ohio-260, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No.

04CA10, 2004-Ohio-3146; In re: C. W., Montgomery App. No. 20140, 2004-Ohio-2040.

        {¶75} R.C. 2151.414 states, in relevant part, as follows: (B)(1) Except as

provided in division (B)(2) of this section, the court may grant permanent custody of a

child to a movant if the court determines at the hearing held pursuant to division (A) of

this section, by clear and convincing evidence, that it is in the best interest of the child to

grant permanent custody of the child to the agency that filed the motion for permanent

custody and that any of the following apply:

        {¶76} “(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 or more public children services

agencies or private child placing agencies for twelve or more months of a consecutive
Fairfield County App. Case No. 10-CA-65                                                  18


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.”

       {¶77} 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”:

       {¶78} “(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;* * *…

       {¶79} “(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
Fairfield County App. Case No. 10-CA-65                                                 19


by other actions showing an unwillingness to provide an adequate permanent home for

the child;…

       {¶80} “(13)   The   parent    is   repeatedly   incarcerated,   and   the   repeated

incarceration prevents the parent from providing care for the child…

       {¶81} “(16) Any other factor the court considers relevant.”

       {¶82} The trial court, in the case sub judice, found that appellant had failed

repeatedly and continuously to substantially remedy the conditions causing A.P. to be

placed outside the home and also found that A.P. could not and should not be placed

with appellant within a reasonable time. Appellant’s case plan in this case required him

to submit to random drug/alcohol screens and to obtain counseling for drug/alcohol

issues. Appellant, who denied having a substance abuse problem has been arrested

twice for drunk driving and has missed numerous random screens for drugs and/or

alcohol. Testimony also was adduced that appellant was inconsistent with his

counseling and with his visitation with A.P. and, although required to maintain

employment as part of his case plan, refused to look for employment other than as an

electrician. As noted by the trial court, the only time since June of 2008 when appellant

had attended counseling on a more or less consistent basis was in August and

September of 2010.

       {¶83} The trial court also found that appellant, due to his repeated

incarcerations, could not provide care for A.P.        As is stated above, testimony was

adduced that appellant had been in jail five times since A.P.’s birth and intentionally

violated his probation so that he could finish his jail term. During such time he missed

A.P.’s first birthday. He was not paying child support for her.
Fairfield County App. Case No. 10-CA-65                                                     20


          {¶84} Based on the forgoing, we find that the trial court did not err in finding that

appellant had failed continuously and repeatedly to substantially remedy the conditions

causing A.P. to be placed outside the home and that A.P. could not and should not be

placed in appellant’s home within a reasonable time.

          {¶85} The next issue for determination is whether or not the trial court erred in

finding that the A.P.'s best interest would be served by terminating appellant’s' parental

rights.

          {¶86} 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.

          {¶87} The Guardian Ad Litem indicated at the hearing that A.P. was doing well

with her kinship provider and was thriving. While, as is stated above, A.P.’s paternal

grandfather testified that he and his wife were willing and able to take A.P., the

Guardian Ad Litem, in her report, noted that the paternal grandparents had not visited

with A.P. with any consistency. The Guardian further noted that she was unaware that

the paternal grandparents had wanted custody of A.P. until right before the original trial

date, which was in September of 2010. The Guardian Ad Litem indicated that she was
Fairfield County App. Case No. 10-CA-65                                                  21


concerned that A.P. did not have a strong bond with them. At the conclusion of the trial,

the Guardian Ad Litem told the court that she had concerns about appellant’s

incarceration and the fact that he intentionally violated probation by using drugs just so

that he was no longer on probation. She indicated both on her report and at trial that

she thought a grant of permanent custody would be in A.P.’s best interest.

       {¶88} Based on the foregoing, we find that the trial court did not err in finding

that A.P.’s best interest would be served by terminating appellant’s parental rights.

       {¶89} Appellant, in his third assignment of error, argues that the trial court erred

when, in its April 23, 2009, Judgment Entry, it found that reasonable efforts need not be

expended to reunify appellant with A.P. pursuant to R.C. 2151.419. We note that the

April 23, 2009, Entry does not state that reasonable efforts need not be expended to

reunify appellant with A.P. Moreover, the Ohio Supreme Court, in 2007, indicated that

R.C. 2151.419, the “reasonable efforts” statute, does not generally apply to permanent

custody proceedings. See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d

816

       {¶90} Finally, appellant, in his fourth assignment of error, argues that the trial

court erred in granting legal custody pursuant to R.C. 2151.353(A)(3). R.C.

2151.353(A)(3) states in relevant part: “If a child is adjudicated an abused, neglected, or

dependent child, the court may make any of the following orders of disposition:

       {¶91} “(3) Award legal custody of the child to either parent or to any other person

who, prior to the dispositional hearing, files a motion requesting legal custody of the

child or is identified as a proposed legal custodian in a complaint or motion filed prior to

the dispositional hearing by any party to the proceedings...”
Fairfield County App. Case No. 10-CA-65                                                22


       {¶92} In the case sub judice, the trial court never granted legal custody to either

parent or to any other person. Rather, the trial court granted permanent custody of A.P.

to Fairfield County Child Protective Services pursuant to R.C. 2151.414.

       {¶93} In short, we find that the trial court's decision terminating appellant’s

parental rights and granting permanent custody of A.P. to Fairfield County Child

Protective Services was not against the manifest weight of the evidence.

       {¶94} Appellant’s four assignments of error are, therefore, overruled.

       {¶95} Accordingly, the judgment of the Fairfield County Court of Common Pleas,

Juvenile Division, is affirmed.




By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/d0323
[Cite as In re A.P., 2011-Ohio-1909.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


        IN THE MATTER OF:                      :
                                               :
                  A.P.                         :
                                               :
             (Minor Child)                     :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 10-CA-65




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

judgment of the Fairfield County Court of Common Pleas, Juvenile Division, is affirmed.

Costs assessed to appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
