[Cite as In re W.B., 2012-Ohio-3898.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




IN THE MATTER OF:

        W.B.,                                               CASE NO. 5-12-15

ALLEGED NEGLECTED AND
DEPENDENT CHILD,
                                                            OPINION
[ZACHARY BROOKS - APPELLANT].




                Appeal from Hancock County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 21130004

                                        Judgment Affirmed

                           Date of Decision:     August 27, 2012




APPEARANCES:

        Nicole M. Winget for Appellant

        Mark C. Miller and Rebecca S. Newman for Appellee
Case No. 5-12-15


SHAW, P.J.

           {¶1} Father-appellant Zachary Brooks (“Brooks”) appeals the March 23,

2012, judgment of the Hancock County Court of Common Pleas, Juvenile

Division, awarding permanent custody of the minor child “W.B.” to Hancock

County Job and Family Services-Children’s Protective Services Unit (hereinafter

“CPSU” or “the agency”).

           {¶2} The facts relevant to this appeal are as follows. The minor child W.B.

was born in November of 2009. Brooks was determined to be the father of W.B.

W.B.’s mother is deceased, having been murdered on approximately March 28,

2011.1 Brooks is currently incarcerated for two counts of obstruction of justice

regarding the investigation of the murder of W.B.’s mother.2

           {¶3} On March 28, 2011, a complaint was filed alleging that W.B. was a

dependent and neglected child due to the fact that she was living in unsanitary

conditions and due to the fact that there was purportedly domestic violence

occurring in the home. According to the complaint, there was a pig living in a

closet in the house with W.B., there was a five gallon bucket used as a make-shift

port-a-potty that was three-quarters full of waste accessible to W.B., and there was

an incident of domestic violence in the home wherein, at the time of this




1
    The date used here for the homicide of W.B.’s mother is the date CPSU was notified.
2
    Brooks is scheduled to be released from incarceration in May of 2015.

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Case No. 5-12-15


complaint, the agency was informed that W.B.’s mother may have been a

homicide victim. (Doc. 1).

      {¶4} On March 28, 2011 a “motion for predispositional interim orders” was

filed requesting, inter alia, that W.B. be placed in temporary custody of CPSU

pending a full hearing on the complaint.

      {¶5} On March 28, 2011, an ex parte order was issued granting emergency

temporary custody of W.B. to CPSU.

      {¶6} On March 30, 2011, Jane Davis was appointed as Guardian Ad Litem

(“GAL”) for W.B. (Doc. 3).

      {¶7} On March 31, 2011 a shelter care hearing was held. Brooks was

present at this hearing. (Doc. 5). Ultimately the court found that there was

probable cause in granting the ex parte order and the court placed W.B. in

emergency temporary custody of CPSU.             (Id.) Further, the court found that

reasonable efforts had been made to prevent the removal of W.B. from the home

and that it was in W.B.’s best interests to be removed from the home. (Id.)

      {¶8} On April 27, 2011 a case plan was filed by caseworker Karmen Lauth.

The case plan required Brooks, among other things, to complete a mental health

and substance abuse assessment, to find and keep a safe and stable home, and to

enroll in and attend a domestic violence program. (Doc. 14).




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Case No. 5-12-15


        {¶9} On May 5, 2011, a hearing was held on the complaint that alleged

W.B. was a dependent and neglected child. On consent of the parties, W.B. was

found to be a dependent and neglected child. (Doc. 15). This was memorialized

in a journal entry filed on May 9, 2011. (Id.) Disposition was scheduled for June

2, 2011. (Id.)

        {¶10} On June 2, 2011 the dispositional hearing was held. On June 6, 2011

a judgment entry was filed regarding the June 2 dispositional hearing. (Doc. 19).

According to the entry, upon consent of the parties, W.B. was placed in the

temporary custody of CPSU. (Id.) In addition, the court also adopted the case

plan filed that had previously been filed.3 (Id.)

        {¶11} On November 21, 2011, CPSU filed a motion for permanent custody

of W.B. (Doc. 29).

        {¶12} A final hearing on CPSU’s motion for permanent custody was held

March 20, 2012. At the final hearing caseworker Karmen Lauth testified that she

was the ongoing caseworker in the matter of W.B. (Tr. at 15). Lauth testified that

the agency became involved in this matter based upon reports that home

conditions for W.B. were not safe. These conditions included a pig found living in

the home closet, and a “port-a pot” within W.B.’s reach in the home. (Tr. at 20).



3
  On June 2, 2011, a second case plan was filed by caseworker Karmen Lauth largely mirroring the first
case plan. Although according to Lauth’s testimony the case plans were identical, it was the case plan filed
June 2, 2011 that was adopted by the court.

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Case No. 5-12-15


        {¶13} At the hearing Lauth also testified that W.B.’s mother was killed in a

homicide, having been beaten and stabbed. (Tr. at 19). According to Lauth,

Brooks pled guilty to two counts of obstruction of justice regarding the

investigation of W.B.’s mother’s death. (Tr. at 40-41). Lauth testified that Brooks

entered into a joint sentencing recommendation of two years on each count of

obstruction of justice to be served consecutively, giving Brooks an effective

release date from prison of May of 2015. (Tr. at 45).

        {¶14} Lauth testified that during the pendency of this case Brooks missed

one of his two scheduled supervised visits with W.B. According to Lauth, Brooks

said he missed the appointment because he was confused about the time. (Tr. at

52). Lauth testified that the one supervised visit Brooks did attend did not go well

as W.B. was unwilling to go with Brooks, screaming and crying, clinging to the

monitor. (Tr. at 50). Lauth testified that the visit was ended after 10-15 minutes.

(Id.)

        {¶15} Lauth testified that the agency filed for permanent custody because

Brooks was incarcerated, Brooks could not provide for W.B., and W.B. needed

permanency. (Tr. at 53). Lauth testified that relative placement was not an option

as a sex offender resided in the home of the maternal grandparents and W.B.’s

paternal grandmother had four children permanently removed from her custody.

(Tr. at 57-58). Further, Lauth testified that Brooks would not be able to meet the


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Case No. 5-12-15


objectives in his case plan and that Brooks, at best, had only met one objective

(psychological evaluation).

       {¶16} In elaborating on her reasoning that Brooks could not provide for

W.B. Lauth testified specifically that Brooks was 19 and did not appear to

understand the developmental stages of a child. (Tr. at 68-69). Lauth further

testified that Brooks did not possess the skills to take care of W.B. and could not

acquire them even with a twelve month extension. (Tr. at 84).

       {¶17} Finally, Lauth testified that W.B. got along well with her foster

parents despite originally struggling with being around males. (Tr. at 88). Lauth

also testified that she believed there was a very high probability that W.B. would

be adopted. (Tr. at 94). In conclusion, Lauth testified that it was her opinion to a

reasonable degree of certainty as assessor that the agency should get permanent

custody of W.B. (Tr. at 93).

       {¶18} Doctor David K. Connell then testified at the hearing. Dr. Connell

testified that he had been a clinical psychologist since 1993 and that he was asked

to perform an evaluation of Brooks. (Tr. at 103). Dr. Connell testified that he met

with Brooks on two occasions and that he administered a personality test and an

intelligence test to Brooks. According to Dr. Connell, Brooks’ IQ placed him in

the range of mild mental retardation. (Tr. at 119). Based on this, Dr. Connell




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Case No. 5-12-15


testified that it would be difficult for Brooks to be an effective parent and that

Brooks would probably need a lot of help. (Id.)

      {¶19} Dr. Connell also testified that Brooks thought W.B. should be able to

control her bowels at less than 2 years of age and that Brooks thought W.B. only

needed her diaper changed when she cried. (Tr. at 134). Dr. Connell then testified

that to a reasonable degree of psychological certainty, he did not believe Brooks

has provided or could provide for W.B. and that it would be in the best interest of

W.B. to award permanent custody to the agency.

      {¶20} After Dr. Connell finished testifying, the State rested its case.

Although counsel for Brooks cross-examined the witnesses, Brooks presented no

testimony and entered no exhibits into evidence.

      {¶21} Before the conclusion of the hearing, the GAL made a statement that

she felt it was in the best interests of W.B. that permanent custody be awarded to

CPSU. The GAL further testified that she believed Brooks would not be able to

provide a safe and stable home even when released from prison. (Tr at 177).

      {¶22} The matter was thus submitted for the court’s judgment.

      {¶23} On March 23, 2012 the trial court issued its judgment entry awarding

permanent custody of W.B. to CPSU. In the entry, the court found by clear and

convincing evidence that W.B. could not be placed with Brooks within a

reasonable time, and that it would be in the best interests of W.B. to grant


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Case No. 5-12-15


permanent custody to the agency. (Doc. 53). It is from this judgment that Brooks

appeals, asserting the following assignment of error for our review.

                    ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED WHEN IT FOUND BY CLEAR
       AND CONVINCING EVIDENCE THAT THE AWARD OF
       PERMANENT CUSTODY TO THE HANCOCK COUNTY
       JOB AND FAMILY SERVICES WAS WARRANTED.

       {¶24} In Brooks’ assignment of error he argues that the trial court erred by

awarding permanent custody of W.B. to CPSU. Specifically Brooks argues that

clear and convincing evidence was not presented at the hearing showing that W.B.

could not be placed with Brooks within a reasonable time and that it was not in

W.B.’s best interests for permanent custody to be awarded to CPSU.

       {¶25} As an initial matter, we note that “[i]t is well recognized that the

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3d

Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, ¶ 9, quoting In re Hayes, 79 Ohio

St.3d 46, 48 (1997) (citation omitted). The Supreme Court of Ohio has held that a

parent “must be afforded every procedural and substantive protection the law

allows.” In re Hayes, supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (1991).

Thus, it is with these constructs in mind that we proceed to determine whether the

trial court erred in granting permanent custody of the children to the agency.

       {¶26} Section 2151.414(B)(1) of the Revised Code provides, inter alia, that

a trial court


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Case No. 5-12-15


      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:

      (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.

      (b) The child is abandoned.

      (c) The child is orphaned, and there are no relatives of the
      child who are able to take permanent custody.

      (d) The child has been in the temporary custody of one or more
      public children services agencies or private child placing
      agencies for twelve or more months of a consecutive twenty-two-
      month period, or the child has been in the temporary custody of
      one or more public children services agencies or private child
      placing agencies for twelve or more months of a consecutive
      twenty-two-month period and * * * the child was previously in
      the temporary custody of an equivalent agency in another state.

R.C. 2151.414(B)(1)(a-d).

      {¶27} The Supreme Court of Ohio has held that “[c]lear and convincing

evidence is that measure or degree of proof which will produce in the mind of the

trier of facts a firm belief or conviction as to the allegations sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Further, “[i]t is

intermediate, being more than a mere preponderance, but not to the extent of such


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Case No. 5-12-15


certainty as is required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.” Id., citing Merrick v. Ditzler, 91 Ohio St. 256

(1915). In addition, when “the degree of proof required to sustain an issue must

be clear and convincing, a reviewing court will examine the record to determine

whether the trier of facts had sufficient evidence before it to satisfy the requisite

degree of proof.” Cross, supra (citations omitted); see, also, In re Adoption of

Holcomb, 18 Ohio St.3d 361, 368 (1985).

       {¶28} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a)

that the children cannot be placed with either parent within a reasonable time or

should not be placed with either parent, the Revised Code states:

       (E) In determining at a hearing held pursuant to division (A) of
       this section * * * whether a child cannot be placed with either
       parent within a reasonable period of time or should not be
       placed with the parents, the court shall consider all relevant
       evidence. If the court determines, by clear and convincing
       evidence, at a hearing held pursuant to division (A) of this
       section * * * that one or more of the following exist as to each of
       the child's parents, the court shall enter a finding that the child
       cannot be placed with either parent within a reasonable time or
       should not be placed with either parent:

       (1) Following the placement of the child outside the child's
       home and notwithstanding reasonable case planning and diligent
       efforts by the agency to assist the 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 conditions, the court
       shall consider parental utilization of medical, psychiatric,

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Case No. 5-12-15


      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.

      ***

      (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 by other actions showing an
      unwillingness to provide an adequate permanent home for the
      child;

      ***

      (12) The parent is incarcerated at the time of the filing of the
      motion for permanent custody or the dispositional hearing of the
      child and will not be available to care for the child for at least
      eighteen months after the filing of the motion for permanent
      custody or the dispositional hearing.

      ***

      (14) The parent for any reason is unwilling to provide food,
      clothing, shelter, and other basic necessities for the child or to
      prevent the child from suffering physical, emotional, or sexual
      abuse or physical, emotional, or mental neglect.

(Emphasis Added.) R.C. 2151.414(E)(1, 4, 12, 14).

      {¶29} In addressing the factors in R.C. 2151.414(E), the trial court held the

following:

      This court further finds that under Revised Code Section
      2151.414(E)(12) that the sole parent is incarcerated for a crime
      that involves an obstruction of justice regarding the
      investigation of the murder of the child’s mother and will be
      incarcerated for a period that exceeds eighteen months after the
      date of the filing of the motion for permanent custody. The

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Case No. 5-12-15


      court further finds that the father has been diagnosed with mild
      mental retardation, marijuana dependence, and antisocial
      personality. Psychologist David Connell opines that there is no
      compelling evidence that (father) has the emotional, behavioral,
      social, or cognitive skills to provide for the healthy development
      of his daughter.

      ***

       Since father is the sole parent and was incarcerated at the time
       of the filing of permanent custody motion and will not be
       available to care for the child for at least eighteen months after
       the filing of the motion for permanent custody as specified in
       Revised Code Section 2151.414(E)(12), this court is mandated to
       find that the child cannot be placed with the parent within a
       reasonable time.

(Doc. 53). The court also found that “the father has failed continuously and

repeatedly to substantially remedy the conditions causing the child to be placed

outside the home.” (Id.)

      {¶30} Brooks takes issue with several of the trial court’s findings on

appeal. Brooks argues that the trial court erred in finding that W.B. could not be

placed with him within a reasonable time because Brooks was eligible for judicial

release and therefore it was not certain that he will be in prison eighteen months

from the agency’s filing for permanent custody. Brooks also argues that the

testimony of Dr. Connell challenging Brooks fitness to be a parent was contrary to

Brooks’ willingness to cooperate with case plan services. In addition, Brooks

argues that the trial court improperly emphasizes Brooks’ incarceration for



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Case No. 5-12-15


obstruction of justice in the investigation of the death of W.B.’s mother to show

his lack of parental abilities.

         {¶31} Brooks’ first argument that his sentence was not definite because he

was eligible for judicial release is completely speculative. Karmen Lauth testified

at the final hearing that Brooks was indicted and incarcerated in May 2011 for two

counts of obstruction of justice, pled guilty to those two counts, and entered into a

joint sentencing recommendation consisting of a total four-year prison term. (Tr.

at 38-39, 45); (CPSU Ex. 7, 8). This prison term was not scheduled to end until

May of 2015. (Tr. at 45). There is nothing in the record to suggest that Brooks

will definitely be getting judicial release. In fact, the only testimony in the record

related to judicial release at all is the following exchange on cross examination of

Lauth:

         Q: There’s a potential for early release; is there not?

         A: That’s what Mr. Brooks has told me, yes.

(Tr. at 165). Nothing else in the record indicates that Brooks has a release date

other than May of 2015. The trial court’s finding was thus supported by clear and

convincing evidence.

         {¶32} As to Brooks’ argument that Brooks was willing to cooperate with

the case plan, this is directly contradicted in the record by the testimony of Lauth,

the caseworker who designed the case plan. Lauth testified that Brooks had only


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Case No. 5-12-15


completed one objective of the case plan, failing to complete any of the others.

(Tr. at 79). At the time of the final hearing Brooks had taken no parenting or

domestic violence classes. This is especially critical based upon the fact that

Brooks scored a 58 on his IQ test indicating mild mental retardation, which

according to Dr. Connell, would require Brooks to have “a lot of help in being an

effective, responsible parent.” (Tr. at 119). Brooks had also in no way established

a safe and stable home for W.B. Moreover, Brooks expressed an interest in

moving back in with his parents following his incarceration—a home which had

been determined not suitable for relative placement. On top of this, Brooks had

missed one of two appointments with W.B. stating that he was mistaken about the

time.

        {¶33} As to Brooks’ argument that the trial court improperly used Brooks’

incarceration for obstruction of justice to show Brooks’ lack of parenting abilities,

we find that the trial court’s statements were supported by the record. At the final

hearing Dr. Connell testified that Brooks originally told Dr. Connell that Brooks

was not at home during the homicide of W.B.’s mother.             According to Dr.

Connell, during the second meeting, Brooks changed his story.           Dr. Connell

testified that Brooks told Dr. Connell during their second meeting that Brooks and

W.B. were home while W.B.’s mother was beaten, screaming, in a bedroom from

3 p.m. to 9:30 p.m. (Tr. at 123-131). Dr. Connell testified that Brooks told Dr.


                                        -14-
Case No. 5-12-15


Connell that Brooks tried to intervene but a knife was put to his throat so Brooks

went back to playing a game. (Tr. at 126). Brooks’ actions in this incident are

entirely relevant to the issue of his personal responsibility and his ability as a

parent.

          {¶34} Based on all of the foregoing, we find that there was clear and

convincing evidence to support the trial court’s determination that W.B. could not

be placed with Brooks within a reasonable time.

          {¶35} Although we have determined that there was clear and convincing

evidence to support the trial court’s decision that W.B. could not be placed with

Brooks within a reasonable time, we still must determine whether there was clear

and convincing evidence to support the trial court’s decision that it was in W.B.’s

best interests for permanent custody to be awarded to the CPSU.                 When

determining whether granting permanent custody to CPSU is in the best interest of

the child, the court must consider all of the relevant factors listed in R.C.

2151.414(D)(1), including:

          (a) The interaction and interrelationship of the child with the
          child’s parents, siblings, relatives, foster caregivers and out-of-
          home providers, and any other person who may significantly
          affect the child;

          (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;



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Case No. 5-12-15


      (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 * * * for twelve or more months of a
      consecutive twenty-two month period * * *;

      (d) The child’s need for a legally secure permanent placement
      and whether that type of placement can be achieved without a
      grant of permanent custody to the agency;

      (e) Whether any of the factors in divisions (E)(7) to (11) of this
      section apply in relation to the parents and child.

      {¶36} In the trial court’s judgment entry, after stating that it had considered

all of the factors in R.C. 2151.414(D), the trial court found “by clear and

convincing evidence that it would be in the best interest of [W.B.] to grant her

permanent custody to CPSU.” (Doc. 53). On appeal, Brooks generally argues that

this finding was not supported by clear and convincing evidence.

      {¶37} With regard to factor (a), there was evidence presented at the hearing

that W.B. had been living in unsanitary conditions. Moreover, evidence was

presented that Brooks did not possess parenting skills, that Brooks made no effort

to acquire these skills (aside from a loose statement that he was willing to take

classes), that Brooks lacked the mental acumen to care for W.B., and that in the

one interaction Brooks had with W.B. since these proceedings began, W.B.

screamed and clung to the monitor until the visit was concluded early.

Furthermore, evidence was presented by Lauth that W.B. got along very well with




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Case No. 5-12-15


her foster parents and that W.B. was in a foster-to-adopt home. Lauth testified

there was a very high probability W.B. would be adopted.

       {¶38} With regard to factor (b), the wishes of W.B. were expressed through

Jane Davis, the GAL. Davis filed a report and reiterated at the hearing that it

would be in W.B.’s best interest to be placed in the permanent custody of CPSU.

Davis also testified that even after released she did not believe Brooks would be

able to provide a safe and stable home.

       {¶39} With regard to factor (c), W.B. had been in custody of the agency

since March 28, 2011 and the motion for permanent custody was filed November

21, 2011. While this did not amount to a consecutive 12 months of a 22 month

period, Brooks had only seen his daughter one time and had missed one of two

scheduled appointments to see his daughter.

       {¶40} With regard to factor (d), Lauth and the GAL testified that W.B. was

in need of a legally secure permanent placement and Lauth testified that adoption

in W.B.’s case was highly probable.

       {¶41} With regard to factor (e), none of the factors appear to be relevant to

this particular case.

       {¶42} Based on the foregoing we find that there was clear and convincing

evidence to support the decision made by the trial court that it was in the




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children’s best interest for permanent custody to be awarded to CPSU.

Accordingly, Brooks’ assignment of error is overruled.

       {¶43} For the foregoing reasons the judgment of the Hancock County Court

of Common Pleas, Juvenile division, is affirmed.

                                                           Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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