[Cite as In re T.B., 2013-Ohio-1156.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
IN RE:                                             Hon. Patricia A. Delaney, P. J.
                                                   Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.

         T.B., K.B., and N.B.                      Case Nos. 12CA89, 12CA90, 12CA91

                                                   OPINION
                                                   (NUNC PRO TUNC) - correcting name
         MINOR CHILDREN                            of authoring judge on page 2




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile Division, Case Nos. 2008-
                                               DEP-00177, 2008-DEP-00178, 2008-DEP-
                                               00179


JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                         March 15, 2013




APPEARANCES:

For Appellee RCCS                               For Appellant Mother

J. PETER STEFANIUK                             DAWN FESMIER PIGG
731 Scholl Road                                28 Park Avenue West, Suite 501
Mansfield, Ohio 44907                          Mansfield, Ohio 44902
Richland County, Case No. 12CA89, 12CA90, and 12CA91                                   2

Farmer, J.

       {¶1}   Appellant Paula Timko appeals the decision of the Court of Common

Pleas, Juvenile Division, Richland County, which granted permanent custody of her

three children to Appellee Richland County Children Services (“RCCS”). This is a nunc

pro tunc opinion correcting a scrivener’s error as to the authoring judge’s name on page

2. The relevant facts leading to this appeal are as follows.

       {¶2}   The children at the center of this case are T.B., born to Appellant Paula

Timko in 2002; K.B., born to Appellant Paula Timko in 2004; and N.B., born to Appellant

Paula Timko in 2006. The father of all three children is Anthony Bishop, who has

separately appealed.

       {¶3}   In September 2008, RCCS filed a complaint alleging that appellant’s

aforesaid three children were dependent under R.C. 2151.04. In December 2008, the

trial court adjudicated T.B., K.B., and N.B. as dependent children, with a disposition of

protective supervision by RCCS. The concerns at various points in the case have

included appellant’s mental health and anger issues, her substance abuse, her criminal

activities, lack of suitable housing, and exposure of the children to men with domestic

violence propensities. It is undisputed that appellant has a felony drug possession

conviction, for which she served prison time.

       {¶4}   On November 10, 2009, RCCS obtained temporary custody of T.B., K.B.,

and N.B. pursuant to an emergency shelter care order, following acts of domestic

violence by Anthony Bishop against appellant in the home. Bishop was subsequently

convicted on three felony counts stemming from the incident and was sentenced to

three years in prison.
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                 3


      {¶5}   On July 8, 2010, pursuant to a magistrate’s decision, the children were

again placed in the temporary custody of RCCS. The magistrate’s decision was

approved by the trial court on July 28, 2010.

      {¶6}   On January 13, 2011, RCCS filed a dispositional motion requesting

permanent custody of all three children to the agency.

      {¶7}   Evidentiary hearings on the permanent custody motion were conducted

before a magistrate on several days between May 3, 2011 and March 1, 2012. The

magistrate issued a decision recommending permanent custody of the children to

RCCS on March 14, 2012.

      {¶8}   Both sides thereupon filed objections to the decision of the magistrate. On

August 16, 2012, the trial court overruled the objections and approved and adopted the

magistrate’s decision.

      {¶9}   Appellant Paula Timko filed a notice of appeal on September 10, 2012.

She herein raises the following five Assignments of Error in each case:

      {¶10} “I. THE COURT ERRED IN FINDING THAT APPELLANT HAD

ABANDONED THE CHILD DUE TO HER LACK OF CONTACT OR VISITATION, THUS

FAILING TO MEET THE REQUIREMENTS OF R.C. 2151.414(B) TO JUSTIFY A

GRANT OF PERMANENT CUSTODY.

      {¶11} “II. THE COURT’S DECISION TO GRANT PERMANENT CUSTODY OF

THE CHILD TO RICHLAND COUNTY CHILDREN SERVICES WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT IN THE CHILD’S BEST

INTEREST.
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                   4


      {¶12} “III. THE COURT ERRED IN FINDING THAT THE MOTHER HAD

CONTINUOUSLY AND REPEATEDLY FAILED TO SUBSTANTIALLY REMEDY THE

CONDITIONS WHICH CAUSED HER CHILD TO BE PLACED OUTSIDE HER HOME,

PURSUANT TO R.C. 2151.414(E), IN VIEW OF THE EVIDENCE THAT MOTHER DID

SUBSTANTIALLY COMPLY WITH ALL REQUIREMENTS OF THE CASE PLAN.

      {¶13} “IV. THE COURT ERRED IN DETERMINING THAT THE CHILD HAD

BEEN OUT OF THE HOME FOR 12 OUT OF 22 MONTHS, PURSUANT TO R.C.

2151.413.

      {¶14} “V. THE COURT ERRED IN FINDING THAT IT IS IN THE BEST

INTEREST OF THE MINOR CHILD TO BE PLACED IN THE PERMANENT CUSTODY

OF CHILDREN SERVICES, PURSUANT TO R.C. 2151.414(D).”

                                      Standard of Review

      {¶15} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App.No. CA–5758.

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 (1978), 54 Ohio St.2d

279, 376 N.E.2d 578. The Ohio Supreme Court has emphasized: “ ‘[I]n determining

whether the judgment below is manifestly against the weight of the evidence, every

reasonable intendment and every reasonable presumption must be made in favor of the

judgment and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334,
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                     5

972 N.E.2d 517, 2012–Ohio–2179, quoting Seasons Coal Co., Inc. v. Cleveland (1984),

10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is well-established

that the trial court is in the best position to determine the credibility of witnesses. See,

e.g., In re Brown, Summit App.No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass

(1967), 10 Ohio St .2d 230, 227 N.E.2d 212.

                                                I.

       {¶16} In her First Assignment of Error, appellant contends the trial court erred in

finding that she had abandoned T.B., N.B., and K.B. pursuant to the permanent custody

statute. We disagree.

       {¶17} R.C. 2151.414(B)(1) reads as follows: “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:

       {¶18} “ ***

       {¶19} “(b) The child is abandoned.

       {¶20} “ ***.”

       {¶21} We have reviewed the record and hereby conclude the court’s R.C.

2151.414(B)(1)(b) “abandonment” finding was not against the manifest weight of the

evidence, as the transcript supports the conclusion that appellant failed to communicate

or visit with her children for a period of ninety days or more. See R.C. 2151.011(C). The
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                    6


children’s foster mother testified that appellant moved to Columbus, Ohio, for a period of

time and had no contact with the children from early March, 2010 to June 22, 2010,

although she did contact the foster mother once by telephone, at which time the children

were not with the foster mother. See Tr. at 473-474. This testimony was buttressed by

one of the caseworkers, Amanda Campbell, and the guardian ad litem, Nancy Edwards.

Appellant’s present protestation that this was “because of circumstances beyond

Mother’s control” (Appellant’s Brief at 11) is not persuasive to this Court.

       {¶22} Appellant’s First Assignment of Error is overruled.

                                               II., III.

       {¶23} In her Second and Third Assignments of Error, appellant contends the trial

court’s decision to grant permanent custody of her three children to RCCS, including the

court’s determination that appellant had continuously and repeatedly failed to

substantially remedy the conditions which caused her children to be placed outside her

home, was against the manifest weight of the evidence. We disagree.

       {¶24} As an initial matter, as discussed above, the trial court found the children

had been abandoned pursuant to R.C. 2151.414(B)(1)(b). There was thus no

requirement for any R.C. 2151.414(B)(1)(a) determinations (see infra), based on the

court’s finding of abandonment. See, e.g., In re Willis, Coshocton App.No. 02CA15,

2002-Ohio-6795, ¶ 30. However, the trial court chose to engage in the full statutory

analysis, and we will review these issues in the interest of justice.

       {¶25} R.C. 2151.414(B)(1) reads as follows: “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
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                    7


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:

       {¶26} “(a) The child is not abandoned or orphaned, has not been in the

temporary custody of one or more public children services agencies or private child

placing agencies for twelve or more months of a consecutive twenty-two-month period,

* * * and the child cannot be placed with either of the child’s parents within a reasonable

time or should not be placed with the child’s parents.

       {¶27} “(b) The child is abandoned.

       {¶28} “(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

       {¶29} “(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 * * *.”

       {¶30} In determining whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents (see R.C.

2151.414(B)(1)(a), supra), a trial court is to consider the existence of one or more

factors under R.C. 2151.414(E), including whether or not “[f]ollowing 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
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                8


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.” See R.C. 2151.414(E)(1).

       {¶31} At the permanent custody hearings in this matter, the magistrate heard

testimony from at least eighteen witnesses, including appellant herself. A summary of

the pertinent testimony is as follows:

                                         James Hollenbach

       {¶32} James Grant Hollenbach, M.A., testified in his capacity as T.B.’s

counselor. Hollenbach provided a diagnostic assessment of T.B., age nine, as suffering

from post-traumatic stress disorder. He has witnessed domestic violence, suffered

nightmares, and was described initially as “on-edge” and hyper vigilant. Hollenbach

described the counseling sessions as productive.

                                         Amanda Gillespie

       {¶33} Amanda Gillespie, a counselor in training through Family Life Counseling,

also worked with T.B. In addition to some of the issues described by Hollenbach,

Gillespie noted that T.B. had behavioral issues with fighting in school. She noted that

some of T.B.’s issues escalated at one point after inadvertent contact with appellant

following a school wrestling match. He thereupon had trouble sleeping at his foster

placement because of his fear that “somebody was going to take him away.” Tr. at 67.

Overall, she described his relationship with his foster parents as appearing to be

positive.
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                   9


                                       Melissa Gerkin

       {¶34} Melissa Gerkin, L.I.S.W., also a counselor through Family Life, discussed

her work with K.B. and N.B. Both girls are described as “very bright.” Tr. at 118. She

noted that K.B. has been diagnosed with adjustment disorder, with anxiety. N.B. has

been diagnosed with adjustment disorder, with anxiety and behavioral concerns. She

has also experienced nightmares of “my daddy killing my mommy.” Tr. at 113. Gerkin

was able to reduce her sessions to every other week because of K.B.’s and N.B.’s

improvement. She agreed that the consistency in their foster placement has had a

positive effect on both girls’ behaviors. Tr. at 131.

                                           Michael Ream

       {¶35} Michael Ream is the principal at the school T.B. has attended since

September 2010. He described T.B. as academically bright and improving, but with a

history of behavioral issues, including outbursts of anger and speaking disrespectfully to

teachers and school authorities. Ream noted that T.B.’s behavior was improving in

structured settings, although in April 2011 T.B. was suspended for ten days for

punching another student. In addition, another student was using an MP3 player to pass

messages back and forth between T.B. and appellant.

                                           Brandy Berry

       {¶36} Brandy Berry, a former ongoing services worker for RCCS, noted that the

agency was first contacted about appellant’s situation in 2002, via a courtesy request

from Franklin County, Ohio. Another request came from Florida in 2005; authorities

there had removed T.B. due to substance use concerns in the home in 2003 or 2004,

although reunification had been accomplished in that instance. Berry also stated that
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                    10


Anthony Bishop had been arrested for domestic violence in 2005, but Berry was unsure

of the victim’s identity. Berry tried to arrange voluntary counseling for the family, but

appellant did not cooperate and the case was closed in 2007. Berry also investigated a

sexual abuse concern regarding N.B. in April 2010. It was concluded as unsubstantiated

as to appellant, but indicated as to an undetermined male. Tr. at 221.

                                          Holly Hartman

       {¶37} RCCS supervisor Holly Hartman was working as an intake investigator for

the agency in November 2006, when a referral was made regarding domestic violence

concerns. At that time, appellant admitted that Bishop had beaten her. Also, T.B.

reported that he had witnessed the incident. Hartman also investigated a child

endangering concern in September 2008, when K.B. was hit by a car in the street. This

is part of what led to the court’s 2008 protective supervision orders.

                                        Heather Swanson

       {¶38} Heather Swanson, an intake investigator for RCCS, recalled looking into a

physical abuse concern regarding T.B. in 2008, when he was observed with a lighter

burn on his leg. When she visited appellant’s home, “it was the worst that [she had] ever

been threatened in eight years” of working for RCCS. Tr. at 269.

                                       Amanda Campbell

       {¶39} Amanda Campbell, a placement social worker for RCCS, testified as the

present worker on the case, to which she was assigned in March 2010. Campbell

brought in several drug screen reports on appellant, including a positive test for cocaine

in April 2011. Campbell also noted that appellant did not visit with or contact the children

between March 1, 2010 and June 22, 2010. Campbell told the court that appellant has
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                11


not maintained stable housing and has disrupted visitations at the agency with angry

outbursts in front of the children.

                                Andrea Spencer and Ken Spencer

       {¶40} The foster parents, Ken and Andrea Spencer, both testified at the

permanent custody proceedings. Andrea confirmed that appellant did not contact the

children from March 8, 2010 until June 29, 2010. Andrea also stated that appellant

called her on August 7, 2010, and told her to “watch her back.” Ken recalled an incident

in April 2011 where an unidentified male approached him and advised him to “take care

of the kids,” warning him several times that he was “real good friends” with appellant,

which Ken took as a threat. Tr. at 590.

                                          Larry Schacherer

       {¶41} Mansfield Police Officer Larry Schacherer testified to an incident on June

12, 2011 where appellant and her brother allegedly made threats against two persons,

and said they would burn down their house on Hill Avenue. One of the two persons may

have been in a past relationship with appellant’s brother. No charges resulted in this

incident.

                                          Jason Bammann

       {¶42} Mansfield Police Officer Jason Bammann testified to a disturbance call on

June 29, 2011 on Johns Avenue. On that date, appellant was allegedly present during

an incident where appellant’s brother broke a window on a female subject’s automobile.

                                           Michael Napier

       {¶43} Mansfield Police Officer Michael Napier recalled an incident on June 30,

2011 where appellant was observed driving a car with Theodoric Pointer as a
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                    12


passenger. Appellant allegedly tried to evade a traffic stop and was charged with

misdemeanor fleeing and eluding.

                                      Nancy Edwards, GAL

       {¶44} The guardian ad litem, Nancy Edwards, testified extensively regarding her

participation in the case. She described her first contact with appellant at a supervised

visit, at which time appellant “made a scene in the lobby,” causing the children to be

upset. Tr. at 669. Edwards opined that appellant’s case plan objectives had not been

satisfied. Tr. at 679. She alo stated her conclusion that appellant has failed to keep her

children safe. Tr. at 680. She further reported that the children love their mother, but

they wish to remain in their present placement. Tr. at 682, 686.

                                     Appellant Paula Timko

       {¶45} In her testimony, appellant recalled that she has been a domestic violence

victim at least ten times. She admitted to her problems with outbursts and hostility. Tr. at

816, 899, 907. She also admitted to her past drug use (Tr. at 831) and exposing her

children to dangerous situations. She nonetheless testified: “I feel like the last two years

everything that has brought before you in this Court were out of my control. Maybe not

everything, but 90% of everything was, was out of my control. I worked my case plan. I

did my counseling. I got drug and alcohol assessments, numerous of them. I got my

MMPI evaluation. I, I visited with my kids every visit that I could other than when I was

incarcerated.”

       {¶46} Tr. at 817.
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                  13


                                          Jodi Hurlow

       {¶47} Jodi Harlow, a counselor at Family Life Counseling, testified as a witness

for appellant. She recalled that appellant has consistently wanted to get her children

back. Hurlow described her as “always consistently very cooperative with me.” Tr. at

365. She has seen appellant make progress on her anger management and housing

issues. Tr. at 376, 380.

                                           Conclusion

       {¶48} Upon review of the above witnesses and the record, we hold the trial court

did not err in determining that T.B., K.B., and N.B. could not be placed with appellant or

Anthony Bishop within a reasonable time or should not be placed with appellant or

Bishop. See R.C. 2151.414(B)(1)(a).

       {¶49} Appellant's Second and Third Assignments of Error are overruled.

                                               IV.

       {¶50} In her Fourth Assignment of Error, appellant contends the trial court erred

in relying on the “twelve of twenty-two” rule under R.C. 2151.414(B)(1)(d), supra.1 We

disagree.

       {¶51} One of the alternative criteria under R.C. 2151.414(B)(1)(d) is whether

“[t]he 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 * * *.”

       {¶52} The latter part of R.C. 2151.414(B)(1)(d) further states as follows:

1
    The text of appellant’s assigned error actually references R.C. 2151.413(D)(1), which
posits the “twelve of twenty-two” rule in regard to when a children services agency must
file for permanent custody. In her argument, however, she duly recites R.C.
2151.414(B)(1)(d).
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                  14


       {¶53} “For the purposes of division (B)(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.”

       {¶54} Although the case plan in the matter sub judice was approved on

November 20, 2008, the trial court relied on the most recent removal date of

November 10, 2009 as the starting point for purposes of R.C. 2151.414(B)(1)(d). Sixty

days from that date was January 9, 2010. The agency thus waited more than twelve

months, specifically until January 13, 2011, to file its motion for permanent custody.

During at least that twelve-month period, the children were in agency custody. We

therefore find proper compliance with the “twelve of twenty-two rule,” and we find no

merit in appellant’s assertion that only “full” months count toward the total.

       {¶55} Appellant’s Fourth Assignment of Error is overruled.

                                                 V.

       {¶56} In her Fifth Assignment of Error, appellant contends the trial court erred in

finding permanent custody to be in the best interest of the children. We disagree.

       {¶57} In addressing the best interest issue, we first note it is well-established

that “[t]he discretion which the juvenile court enjoys in determining whether an order of

permanent custody is in the best interest of a child should be accorded the utmost

respect, given the nature of the proceeding and the impact the court's determination will

have on the lives of the parties concerned.” In re Mauzy Children (Nov. 13, 2000), Stark

App.No. 2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642

N.E.2d 424.
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                                  15


       {¶58} In determining the best interest of a child for purposes of permanent

custody disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D). These factors are as follows:

       {¶59} “(1) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster care givers and out-of-home providers, and any other

person who may significantly affect the child;

       {¶60} “(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;

       {¶61} “(3) 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 * * *;

       {¶62} “(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

to the agency;

       {¶63} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

       {¶64} In the case sub judice, we find RCCS has afforded appellant significant

opportunities and services to allow appellant to address the numerous issues in her life

as a parent. Upon review of the testimony of the witnesses as set forth previously, the

record, and the findings of fact and conclusions of law therein, we conclude the trial

court's grant of permanent custody of T.B., K.B., and N.B. to RCCS was made in the
Richland County, Case Nos. 12CA89, 12CA90, and 12CA91                            16


consideration of their best interests and did not constitute an error or an abuse of

discretion.

       {¶65} Appellant’s Fifth Assignment of Error is overruled.

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

Juvenile Division, Richland County, Ohio, is hereby affirmed.



By: Farmer, J.

Delaney, P. J., and

Hoffman, J., concur.


                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                   JUDGES
SGF/d 1227
Richland County, Case No. 12CA89, 12CA90, and 12CA91                            17


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT




IN RE:                                   :
                                         :         JUDGMENT ENTRY
                                         :         (NUNC PRO TUNC) - correcting
         T.B., K.B., and N.B.            :         name of authoring judge on page
                                         :         2
                                         :
                                         :         Case Nos. 12CA89, 12CA90
         MINOR CHILDREN                  :                   and 12CA91




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

judgment of the Court of Common Pleas, Juvenile Division, Richland County, Ohio, is

affirmed.

         Costs assessed to appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                           JUDGES
