[Cite as In re L.D., 2012-Ohio-1810.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
           L.D.                                :   Julie A. Edwards, J.
                                               :
                                               :   Case No. 2012CA00006
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Stark County
                                                    Court of Common Pleas, Family
                                                    Court Division, Case No.
                                                    2009JCV01027

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             April 23, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JERRY A. COLEMAN                                    VERNON M. INFANTINO
Stark County Job and                                Schnars, Baca & Infantino, LLC
Family Services                                     610 Market Avenue, North
221 Third Street, S.E.                              Canton, Ohio 44702
Canton, Ohio 44702
[Cite as In re L.D., 2012-Ohio-1810.]


Edwards, J.

        {¶1}     Appellant, Crystal Dickson, appeals from the December 14, 2011,

Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,

terminating her parental rights and granting permanent custody of L.D. to Stark County

Department of Job and Family Services.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     Appellant is the biological mother of L.D. (DOB 8/4/09). She is not married

to L.D.’s father.      On August 7, 2009, Stark County Department of Job and Family

Services (SCDJFS) filed a complaint alleging that L.D. was a dependant and/or

neglected child. The agency requested that the child be placed in the temporary custody

of her maternal aunt with protective supervision by the agency.

        {¶3}     On September 2, 2009, after appellant and L.D.’s father stipulated to a

finding of dependency, L.D. was found to be a dependent child and she was placed in

the temporary custody of a relative with protective supervision by SCDJFS. On October

13, 2009, L.D. was placed in the temporary custody of SCDJFS.

        {¶4}     Thereafter, on June 28, 2011, SCDJFS filed a motion requesting

permanent custody of L.D. A hearing on such motion commenced on November 14,

2011. The following testimony was adduced at the hearing.

        {¶5}     Wanda Pounds, the ongoing social worker with SCDJFS, testified that she

had been involved with the family since August of 2009. She testified that the agency

had had previous involvement with the family and that custody of appellant’s two other

children from a different father had been granted to a relative after appellant agreed to

such placement. Pounds testified that at the time of L.D.’s birth, appellant was not
Stark County App. Case No. 2012CA00006                                                   3


raising her other children and that the agency believed that appellant had not addressed

any of the agency’s concerns about her. According to Pounds, the agency was

concerned about appellant’s cognitive abilities as well as domestic violence issues she

had with the father of her other children. At the time of L.D.’s birth, appellant was still

involved with such person.

       {¶6}   Pounds testified that L.D. had been placed in the custody of appellant’s

sister, but that in October of 2009, the sister had been arrested for domestic violence

and custody of L.D. was transferred to the agency. L.D. had been in continuous custody

of the agency since October 13, 2009, and was still residing in the same foster home as

she was placed in at such time.

       {¶7}   According to Pounds, the agency developed a case plan for appellant.

The plan required both appellant and L.D.’s father to complete a parenting

psychological evaluation at Northeast Ohio Behavioral Health and get drug

assessments at Quest. Appellant completed the Quest assessment. Pound’s testified

that the parents completed the parenting evaluations and that, with respect to

appellant’s evaluation, there were no recommendations for further services. The

following is an excerpt from Pounds’ testimony:

       {¶8}   “Q. Okay. Now, you indicated mom. I just want to be sure. Mom did not

have any recommendations then on her parenting evaluation. Is that correct?

       {¶9}   “A. No, she did not.

       {¶10} “Q. And as such, was mother, was it, were any other services offered to

mother at that point?
Stark County App. Case No. 2012CA00006                                                    4


         {¶11} “A. Um…I connected her with BBR [Bureau of Vocational Rehabilitation]

Um…just because I, I didn’t know what else to do.           I know that um…they did an

assessment but I don’t think anything ever came of that for services for her. Um…but

she has been approved for social security benefits.

         {¶12} “Q. Based upon her cognitive limitations?

         {¶13} “A. Yes.

         {¶14} “Q. Has mother told you, verbalized to you, if she is interested in regaining

custody of this child?

         {¶15} “A. Um…at the beginning of the case, she had said that she was

comfortable with her daughter being with her sister. And at that point, she was fine with

everything staying the way it was, so that she could see her daughter.

         {¶16} “Q. Is the sister in the same foster home?

         {¶17} “A. No, ‘her’ sister, who had custody.

         {¶18} “Q. Oh…I’m sorry. I’m sorry.

         {¶19} “A. At the beginning.

         {¶20} “Q. Alright. So, she was comfortable with her sis, mom’s sister, the aunt,

keeping custody of the child?

         {¶21} “A. Right.

         {¶22} “Q. When the child was placed into the Agency’s custody, did mother

(inaudible) an opinion as to whether she was desiring of, of return of custody at that

point?
Stark County App. Case No. 2012CA00006                                                  5


       {¶23} “A. Um…no, she never really spoke of it, although she did stipulate at the

um…previous permanent custody hearing. But um…in her psych eval., she had said

that she didn’t want full time care.

       {¶24} “Q. What did she, what did she want? If you know.

       {¶25} “A. Just to be able to see her daughter.” Transcript of November 14, 2011

hearing at 17-18.

       {¶26} Pounds testified that appellant had been visiting L.D. regularly and that

L.D. was very comfortable with appellant. She further testified that she felt that she had

assisted the family with trying to complete the case plan services and that appellant had

not fully completed the same.

       {¶27} On cross-examination, Pounds testified that no court case was filed with

respect to appellant’s two other children, but that appellant had agreed to have such

children placed with a relative.       Pounds testified that appellant completed her

assessment at Quest and Northeast Ohio Behavioral Health and that she made her own

appointments and arranged her own transportation to the appointments. She testified

that she referred appellant to the Bureau of Vocational Rehabilitation and that appellant

did not qualify for any of the programs. Pounds testified that appellant lived by herself

and that she was receiving social security. She further testified that appellant and L.D.

were bonded. When asked if she ever on her own recommended services, Pounds

indicated that she sometimes did but, she did not do so in this case.

       {¶28} On redirect, Pounds testified that she could not in good conscience reunify

L.D. with either parent. She testified that when placement of L.D. with appellant’s sister

did not work out, appellant told Amy Thomas at her parenting evaluation that she just
Stark County App. Case No. 2012CA00006                                                  6


wanted to visit L.D. and that appellant had never told her that she had changed her

mind and wanted to be a full time mother to L.D. Pounds testified that appellant had

never asked for services or for more visitation and that appellant visited with L.D. twice

a month for two hours at a time. Pounds testified that L.D. had never been in either of

her parent’s homes and that she would have a big adjustment if she was placed with

her parents.

        {¶29} Amy Thomas, a psychology assistant at Northeast Ohio Behavioral

Health, testified that appellant had participated in a parenting evaluation with her in

October of 2009, and that appellant had significant problems with her cognitive ability.

Thomas testified that appellant had a verbal IQ of 62, a non-verbal IQ of 70 and that her

full scale IQ was 61. According to Thomas, appellant was functioning at the level of a

nine year old in terms of verbal skills and a 71/2 year old in terms of non-verbal skills.

According to Thomas, appellant would need a great deal of assistance in raising a child

because she needed someone with her to “supervise her judgment in reasoning. To

assist her with maintaining basic life activities…” Transcript of November 14, 2011

hearing at 36. Thomas testified that appellant would need assistance every day all day

long.

        {¶30} When she was asked why she made no recommendations for

reunification, Thomas testified as follows:

        {¶31} “A. You know, at the time I met with [CRYSTAL DICKSON], she was very

ambivalent about the idea of working a case plan towards regaining the child. So, she

was really questioning whether or not she wanted to complete the case plan. She didn’t

know whether or not she wanted to maintain custody of this child. Um…she recognized
Stark County App. Case No. 2012CA00006                                                 7


it was very difficult to raise a child which would be an accurate assessment. Um…in

addition, at the time [Crystal Dickson] had reconciled with the father of two older

children. Um…who she had lost custody of. The, the children were placed in the

permanent custody of their paternal grandmother. Um…this individual, according to

[Crystal Dickson] has continued to drink alcohol excessively. He has a criminal history.

There were clear concerns that this is her live in partner and yet this person would not

be able to provide her the support that she needed to parent this baby effectively or

appropriately. So, at the time I met with her, not only were the concerns with the IQ but

the lack of appropriate support system enabling her to raise a baby in a safe and

competent manner. When there’s concerns with attachment and bond, there’s going to

be concerns with her commitment and follow through towards appropriately parenting

the child, as well.” Transcript of November 14, 2011 hearing at 37-38.

      {¶32} Thomas further testified that she diagnosed appellant with dependent

personality disorder, and that appellant’s relationship with her current paramour was

dysfunctional and that there had been domestic violence.

      {¶33} On cross-examination, Thomas testified that she initially saw appellant in

April of 2008 and that, at such time, she had recommended Goodwill Home Based Help

Me Grow and individual counseling. She admitted that she indicated in a 2008 report

that appellant was likely to cooperate with services provided by Community Health. The

following testimony was adduced when she was asked what had changed her mind

about appellant in the past 18 months:

      {¶34} “A. Um…the difference is in terms of her attachment and motivation to,

towards completing a case plan. Again, the ambivalence was critical to me, towards
Stark County App. Case No. 2012CA00006                                                     8


commitment.     In addition to that, she previously was given this case plan but was

unable to regain custody of two previous children. So, despite um...working towards

regaining custody of those children, she could not do it. So, that really reflects concerns

with her ability based on her IQ and support system, um…in order to successfully

parent two other children.” Transcript of November 14, 2011 hearing at 43.

       {¶35} Thomas testified that appellant still wanted to maintain visits with her

daughter and that her concerns that appellant would have problems learning things

were the same that she had in 2008. Thomas testified that she was not aware that

appellant had her own housing and was receiving Social Security.

       {¶36} At the hearing, appellant testified that she lived in an apartment and was

currently on social security. She testified that her mother, who was her payee, helped

her pay her bills and that she wanted custody of L.D. and loved her. Appellant testified

that she would do whatever SCDJFS asked her to do to obtain custody.

       {¶37} On cross-examination, appellant testified that she had changed her mind

about having custody of L.D. after her sister lost custody of L.D., but that she did not tell

anyone that she wanted custody rather than just visitation. Appellant also testified that

she would need help raising L.D. Appellant further testified that she was living with her

boyfriend. After she was referred to the Bureau of Vocational Rehabilitation, appellant

called them once and, after they did not answer their phone, gave up on the bureau.

Appellant testified that her daughter seemed happy and was doing well in foster care.

When asked what she would do if she got L.D. that day, appellant testified that she

would get a bigger house and take care of her. She testified that she required a lot of

assistance from her mother.
Stark County App. Case No. 2012CA00006                                                9


       {¶38} The best interest hearing was held on December 14, 2011. At the hearing,

Pounds testified that L.D., who had been in the agency’s continuous temporary custody

since October 13, 2009, did not have any developmental, medical, behavioral or special

education needs. She testified that L.D. had been in the same foster care since October

13, 2009 and was bonded with her foster family. Pounds testified that the foster family

wanted to adopt L.D. and that the agency had investigated all possible family members,

but that none was suitable. Pounds testified that appellant’s visits with L.D. went well

and that there was a bond between L.D. and her biological parents. When asked why

she thought that permanent custody would be in L.D.’s best interest, Pounds testified as

follows:

       {¶39} “A. Um…although there is a bond with these parents, the parents have

continual bad choice, make continual bad choices. Um…mom is cognitively limited.

Um…she has expressed that she didn’t want her daughter, she was fine with her being

with her sister.   But now she’s saying she wants her home.        Um…there were no

services offered on her psychological evaluation. Um…we’ve tried, in her past cases

and it’s not made enough of a difference. Um…during this case, there’s been two

incidences of domestic violence involving her as the victim.

       {¶40} “Q. Who mom?

       {¶41} “A. Yes.” Transcript of December 14, 2011 hearing at 8.

       {¶42} On cross-examination, Pounds was questioned about L.D.’s grandmother

who had custody of appellant’s two other children.    She testified that the grandmother

had no income, had multiple liens against her and also that she had two adult sons

living with her who had multiple felonies. Pounds testified that appellant and her
Stark County App. Case No. 2012CA00006                                                  10


daughter were bonded and that while appellant completed services, it was “not to the

standard that would allow her to keep her other two kids.” Transcript of December 14,

2011 hearing at 11. Pounds admitted that appellant completed her psychological

parenting evaluation, had housing and had an income.

       {¶43} Pursuant to a Judgment Entry filed on December 14, 2011, the trial court

terminated appellant’s parental rights and granted permanent custody of L.D. to

SCDJFS. On the same date, the trial court filed Findings of Fact and Conclusions of

Law.

       {¶44} Appellant now appeals from the trial court’s December 14, 2011 Judgment

Entry, raising the following assignments of error on appeal:

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

CANNOT      OR    SHOULD      NOT    BE   PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE.

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

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF

PERMANENT        CUSTODY       WAS     AGAINST         THE   MANIFEST     WEIGHT      AND

SUFFICIENCY OF THE EVIDENCE.”

                                               I, II

       {¶47} Appellant's two assignments of error are related and shall be addressed

together. In her first assignment of error, appellant argues that the trial court's finding

that L.D. could not and should not be placed with appellant within a reasonable time

was against the manifest weight and sufficiency of the evidence. In her second
Stark County App. Case No. 2012CA00006                                                      11


assignment of error, appellant argues that the trial court erred in finding that permanent

custody to SCDJFS was in L.D.’s best interest. Appellant argues that this finding was

against the manifest weight and sufficiency of the evidence. We disagree.

       {¶48} “Permanent Custody” is defined as “[a] legal status that vests in a public

children services agency or private child placing agency, all parental rights, duties and

obligations, including the right to consent to adoption, and divests the natural parents or

adoptive parents of all parental rights, privileges, and obligations, including all residual

rights and obligations.” R.C. 2151 .011.

       {¶49} 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, 477, 120 N.E.2d 118 (1954); In re: Adoption of

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

       {¶50} 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
Stark County App. Case No. 2012CA00006                                                     12


essential elements of the case,” a reviewing court may not reverse that judgment.

Schiebel, 55 Ohio St.3d at 74.

       {¶51} 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):

       {¶52} “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.”

       {¶53} Moreover, 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, 674 N.E.2d 1159.

       {¶54} Pursuant to 2152.414(B)(1), 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:

       {¶55} “(a) The child is not abandoned or orphaned 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 twenty-two month period
Stark County App. Case No. 2012CA00006                                                 13


on or after March 18, 1999, and the child cannot be placed with either of the child's

parents within a reasonable period of time or should not be placed with the child's

parents.* * *

       {¶56} “(d) The child has been in the temporary custody of one or more public

children service agencies or private child placing agencies for twelve or more months of

a consecutive twenty-two month period…”

       {¶57} 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 [the] parent”:

       {¶58} “(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 causing the child to be placed outside the child's home. In determining

whether the parents have substantially remedied those conditions, the court shall

consider parental utilization of medical, psychiatric, psychological, and other social and

rehabilitative services and material resources that were made available to the parents

for the purpose of changing parental conduct to allow them to resume and maintain

parental duties.* * *

       {¶59} “(16) Any other factors the court considers relevant.”
Stark County App. Case No. 2012CA00006                                                        14


       {¶60} A trial court may base its decision that a child cannot or should not be

placed with a parent within a reasonable time upon the existence of any one of the R.C.

2151.414(E) factors. The existence of one factor alone will support a finding that the

child cannot be placed with the parent within a reasonable time. See In re: William S.,

75 Ohio St.3d 95, 1996-Ohio-182, 661 N.E.2d 738.

       {¶61} Pursuant to R.C. 2151.414(D), in determining the best interest of a child,

the court shall consider all relevant factors, including but not limited to the following:

       {¶62} “(a) 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;

       {¶63} “(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;

       {¶64} “(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…;

       {¶65} “(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;* * * ”

       {¶66} In the case sub judice, the trial court made findings pursuant to R.C.

2151.414(B)(1)(a)       and   R.C.    2151.414(B)(1)(d).      As    findings    under        R.C.

2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are alternative findings, each is

independently sufficient to use as a basis to grant the motion for permanent custody. In
Stark County App. Case No. 2012CA00006                                                 15

re Langford Children, 5th Dist. No. 2004CA00349, 2005–Ohio–2304, ¶17; In re Dalton,

5th Dist. No. 2007 AP 0041, 2007–Ohio–5805, ¶ 88. Appellant has not challenged the

trial court's finding that L.D. has been in the agency's custody for 12 or more months in

a consecutive 22 month period. R.C. 2151.414(B)(1)(d). The record established that

L.D. had been in the agency’s continuous custody from October 13, 2009, until the date

of the hearing on December 14, 2011. This finding alone, in conjunction with a best

interest finding, is sufficient to support the grant of permanent custody. See In re N.D.,

5th Dist. No. 2010CA00334, 2011-Ohio-685.

      {¶67} In addition, the evidence supported the trial court's conclusion that L.D.

could not and should not be placed with appellant within a reasonable period of time.

R.C. 2151.141(B)(1)(a). The evidence established that appellant, who had serious

cognitive limitations, was diagnosed with dependent personality disorder and requires

assistance with basic daily activities. Moreover, there was testimony that appellant told

Amy Thomas that she only wanted occasional visitation with L.D. Furthermore, there

was evidence that appellant was in a dysfunctional relationship that had involved

domestic violence.

      {¶68} With respect to L.D.’s best interest, there was testimony that she was

doing well in foster care and was bonded with her foster family, which also included two

other children. L.D. had been in the same foster family since October of 2009 and there

was testimony that the foster family wished to adopt her. The Guardian Ad Litem, in a

report filed on August 25, 2010, indicated that she thought that it was in L.D.’s best

interest for permanent custody to be granted. The Guardian Ad Litem noted that L.D.

was very adoptable and was bonded with her foster family, who loved her.
Stark County App. Case No. 2012CA00006                                               16


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

that it was in L.D.s best interest for permanent custody to be granted to SCDJFS.

       {¶70} Appellant’s two assignments of error are, therefore, overruled.

       {¶71} Accordingly, the judgment of the Stark County Court of Common Pleas,

Family Court Division, is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d0404
[Cite as In re L.D., 2012-Ohio-1810.]


                  IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
           L.D.                                :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 2012CA00006




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

judgment of the Stark County Court of Common Pleas, Family Court Division, is

affirmed. Costs assessed to appellant.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
