[Cite as In re D.H., 2016-Ohio-195.]


                                           COURT OF APPEALS
                                          STARK COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT



IN THE MATTER OF:                               :       JUDGES:
                                                :       Hon. William B. Hoffman, P.J.
D.H., JR.                                       :       Hon. Sheila G. Farmer, J.
                                                :       Hon. John W. Wise, J.
                                                :
                                                :       Case No. 2015CA00178
                                                :
                                                :
                                                :       OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Family Court Division, Case
                                                        No. 2013JCV01139B



JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       January 19, 2016




APPEARANCES:

For Appellant                                           For Appellee

DEAN L. GRASE                                           JAMES B. PHILLIPS
700 Courtyard Centre                                    300 Market Avenue North
116 Cleveland Avenue, NW                                Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2015CA00178                                                       2

Farmer, J.

        {¶1}   On November 7, 2013, appellee, Stark County Department of Job and

Family Services, filed a complaint alleging D.H., Jr., born July 4, 2011, to be a neglected

and/or dependent child. Mother of the child is appellant, Teria Thomas; father is Dante

Hill, Sr.1

        {¶2}   Following an emergency shelter care hearing, the child was placed in

appellee's emergency temporary custody.

        {¶3}   An adjudicatory hearing was held on January 30, 2014, wherein both

parents stipulated to dependency. The dispositional hearing followed and the trial court

placed the child in appellee's temporary custody and a case plan was approved and

adopted.

        {¶4}   On October 8, 2014, appellee filed a motion for permanent custody. A

hearing was held on December 2, 2014. By judgment entry filed same date, the trial

court denied the motion and extended temporary custody, finding although appellant

continued to struggle with her addiction, she was participating in the case plan services

designed to assist her with her addiction.

        {¶5}   On June 30, 2015, appellee filed a second motion for permanent custody.

A hearing was held on August 27, 2015. By judgment entry filed August 31, 2015, the

trial court terminated parental rights and granted appellee permanent custody of the

child. Findings of fact and conclusions of law were filed contemporaneously with the

judgment entry.




Father was a part of the underlying case and is the subject of his own appeal in Case
1

No. 2015CA00180.
Stark County, Case No. 2015CA00178                                                    3


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

consideration. Assignments of error are as follows:

                                            I

      {¶7}   "THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND THEREFORE SUCH

DECISION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE."

                                           II

      {¶8}   "THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE

THAT THE BEST INTEREST OF THE CHILD WOULD BE SERVED BY SUCH

FINDING AND THEREFORE SUCH DECISION WAS CONTRARY TO THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                          I, II

      {¶9}   Appellant claims the trial court's decision to grant permanent custody of

the child to appellee was against the manifest weight and sufficiency of the evidence.

Appellant claims the trial court erred in finding the child could not be placed with her

within a reasonable period of time and the best interest of the child was best served by

granting appellee permanent custody. We disagree.

      {¶10} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses.   Our role is to determine whether there is relevant,
Stark County, Case No. 2015CA00178                                                       4


competent and credible evidence upon which the fact finder could base its judgment.

Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10,

1982). 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, 54 Ohio St.2d

279 (1978). On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-

52; Eastley v. Volkman, 132 Ohio St .3d 328, 2012-Ohio-2179.             In weighing the

evidence, however, we are always mindful of the presumption in favor of the trial court's

factual findings. Eastley at ¶ 21.

       {¶11} R.C. 2151.414(E) sets out the factors relevant to determining permanent

custody. Said section states in pertinent part the following:



              (E) In determining at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code 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
Stark County, Case No. 2015CA00178                                                         5


       and convincing evidence, at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code 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, 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.

              (16) Any other factor the court considers relevant.



       {¶12} R.C. 2151.414(B)(1)(b) and (d) specifically state permanent custody may

be granted if the trial court determines, by clear and convincing evidence, that it is in the

best interest of the child and:
Stark County, Case No. 2015CA00178                                                   6


                (b) The child is abandoned.

                (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, 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.

                ***

       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.



       {¶13} R.C. 2151.011(C) states for purposes of R.C. Chapter 2151, "a child shall

be presumed abandoned when the parents of the child have failed to visit or maintain

contact with the child for more than ninety days, regardless of whether the parents

resume contact with the child after that period of ninety days."

       {¶14} Clear and convincing evidence is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be
Stark County, Case No. 2015CA00178                                                       7

established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof." Cross at 477.

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

determining the best interest of a child:



              (D)(1) In determining the best interest of a child at a hearing held

       pursuant to division (A) of this section or for the purposes of division (A)(4)

       or (5) of section 2151.353 or division (C) of section 2151.415 of the

       Revised Code, the court shall consider all relevant factors, including, but

       not limited to, the following:

              (a) The interaction and interrelationship of the child with the child's

       parents, siblings, relatives, foster caregivers and out-of-home providers,

       and any other person who may significantly affect the child;

              (b) The wishes of the child, as expressed directly by the child or

       through the child's guardian ad litem, with due regard for the maturity of

       the child;

              (c) The custodial history of the child, including whether the child has

       been in the temporary custody of one or more public children services

       agencies or private child placing agencies for twelve or more months of a

       consecutive twenty-two-month period, or the child has been in the
Stark County, Case No. 2015CA00178                                                       8


      temporary custody of one or more public children services agencies or

      private child placing agencies for twelve or more months of a consecutive

      twenty-two-month period and, as described in division (D)(1) of section

      2151.413 of the Revised Code, the child was previously in the temporary

      custody of an equivalent agency in another state;

             (d) The child's need for a legally secure permanent placement and

      whether that type of placement can be achieved without a grant of

      permanent custody to the agency;

             (e) Whether any of the factors in divisions (E)(7) to (11) of this

      section apply in relation to the parents and child.



      {¶16} The child was placed in appellee's temporary custody on November 8,

2013, adjudicated on January 30, 2014, and the hearing was held on August 27, 2015.

T. at 4-5. The child had been in appellee's custody for over twelve months. R.C.

2151.414(B)(1)(d).

      {¶17} In its findings of fact and conclusions of law filed August 31, 2015, the trial

court determined R.C. 2151.414(B)(1)(d) applied, appellant had abandoned the child by

not visiting the child from March 26, to July 2, 2015, had relapses with her sobriety, had

yet to finish Goodwill Parenting, did not maintain employment, and was currently living

in a YWCA shelter.

      {¶18} Appellant argues an extension of temporary custody had been granted

until November 17, 2015, but instead, the complaint for permanent custody was filed on

June 30, 2015. At the time of the filing, appellant argues she was participating in
Stark County, Case No. 2015CA00178                                                     9


alcohol counseling and was in fact sober for almost six months which could have been

almost eleven months at the extension date.

       {¶19} The ongoing caseworker, Wanda Pounds, testified appellant failed to visit

the child from March 26, to July 2, 2015. T. at 6. The case plan required appellant to

continue substance abuse treatment, participate in Goodwill Parenting, and participate

in Phoenix Rising Services to address any mental health concerns. T. at 7. At the time

of the hearing, appellant was engaged with Phoenix Rising and was receiving

treatment.   Id.   Appellant was also receiving substance abuse counseling through

Quest, but had suffered relapses in the past. T. at 7-8. Her most recent OVI was in

September 2014. T. at 8. The main concern for appellant was ongoing alcohol abuse.

Id.   An extended visit with the child was attempted, but was terminated due to

appellant's continued alcohol use.     T. at 9.      Appellant did not complete Goodwill

Parenting, as she delayed starting the program.          T. at 9-10.   Appellant was not

employed and was living in the "Y Shelter." T. at 10. She did not have any long term

plans to secure housing and did not have any source of income. T. at 11.

       {¶20} The child has cerebral palsy, aphasia seizures, sclerosis, GERD, and

dysphasia, and is wheelchair bound and nonverbal. T. at 10-11. The child needs

special services and care and stability. T. at 11.

       {¶21} Appellant testified she had been sober since January 5, 2015. T. at 28.

She had relapsed in September and November of 2014. T. at 29. Appellant explained

she could not visit with her child because the visitation dates conflicted with the dates

she was attending services at Quest. T. at 29-30. She stated she requested a better

visitation schedule, but did not receive a response. T. at 30. When reminded that Ms.
Stark County, Case No. 2015CA00178                                                   10


Pounds testified that Saturday visitations were suggested as a special accommodation

for her, appellant stated that was correct, but was then told that Saturday visitations

were not available because of a lack of security. T. at 16, 25, 31. Ms. Pounds testified

appellant did not attend the Saturday visitations because she had stated she had

"something other to do," and lack of security was not a concern. T. at 25, 27-28.

Appellant testified to sporadic employment during the course of the case plan, and she

was unemployed as of the hearing date. T. at 34-35, 38. She admitted to not having

stable housing. T. at 38. Appellant denied being an alcoholic, but stated, "I abuse

alcohol." Id. She then agreed she had a long history of abusing alcohol, admitting she

was a recovering alcoholic. T. at 38-39. She admitted to relapsing and being under the

influence when the child was staying with her for the extended visit.         T. at 39.

Appellant's case manager at Phoenix Rising testified appellant had progressed through

the program and was using the coping skills taught to her. T. at 41-42.

      {¶22} As for best interest, the child is "totally dependent on people." T. at 57.

The child and appellant have bonded. T. at 58. However, Ms. Pounds opined the

granting of permanent custody would outweigh any harm by breaking the bond because

the child needed stability. T. at 59. The child was residing in a special needs foster

home and was adoptable. T. at 60-61. Appellant testified her child's best interest would

best be served by being returned to her. T. at 68.

      {¶23} The guardian ad litem testified "the benefit of permanent custody

outweighs the burden to the child" because the child "has a high level of care because

of his disabilities." T. at 73-74. The parents are "borderline functioning and you have

substance abuse issues that have gone on for a long period [of] time." T. at 72.
Stark County, Case No. 2015CA00178                                                      11


       {¶24} "When granting permanent custody under R.C. 2151.414(B)(1)(d), the trial

court need not find that the child cannot or should not be placed with either parent within

a reasonable time since such a finding is implicit in the time frame provided in the

statute." In re Myers Children 4th Dist. Athens No. 03CA23, 2004-Ohio-657, ¶ 10. We

note "only one of the factors set forth in R.C. 2151.414(D) needs to be resolved in favor

of the award of permanent custody in order for the court to terminate parental rights." In

re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 56.

       {¶25} Upon review, we find sufficient clear and convincing evidence to support

the trial court's decision on best interest and the granting of permanent custody of the

child to appellee.

       {¶26} Assignments of Error I and II are denied.
Stark County, Case No. 2015CA00178                                       12


      {¶27} The judgment of the Court of Common Pleas of Stark County, Ohio,

Family Court Division is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 1229
