[Cite as In re R.C., 2014-Ohio-2610.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                            :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
R. C.                                        :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
A MINOR CHILD                                :
                                             :       Case No. 2014CA00023
                                             :
                                             :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Juvenile Division, Case No.
                                                     2013JCV00131



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 16, 2014




APPEARANCES:

For Appellant                                        For Appellee

DAVID L. SMITH                                       LISA A. LOUY
245 33rd Street, NW                                  221 Third Street, SE
Canton, OH 44709                                     Canton, OH 44702
Stark County, Case No. 2014CA00023                                                       2

Farmer, P.J.

      {¶1}     On February 8, 2013, appellee, the Stark County Department of Job and

Family Services, filed a complaint for temporary custody of R. C. born March 28, 2000,

alleging the child to be dependent and/or neglected. Mother of the child is appellant,

Angela Ball; father is Angelo Collazo, Jr. By judgment entry filed April 4, 2013, the trial

court found the child to be dependent and granted temporary custody of the child to

appellee.

      {¶2}     On November 12, 2013, appellee filed a motion for permanent custody. A

hearing was held on January 15, 2014. By judgment entry filed January 21, 2014, the

trial court granted permanent custody of the child to appellee. The trial court filed

findings of fact and conclusions of law contemporaneously with the judgment entry.

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

consideration. Assignments of error are as follows:

                                             I

      {¶4}     "THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT

ABANDONED THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE."

                                            II

      {¶5}     "THE COURT'S ORDER STATING THAT [R.] [C.] COULD NOT BE

PLACED WITH ANY BIOLOGICAL PARENT AT THE TIME OF TRIAL OR WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE."
Stark County, Case No. 2014CA00023                                                       3


                                            I, II

       {¶6}   Appellant claims the trial court's finding that she had abandoned her child

and the child could not be placed with any biological parent within a reasonable time

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

       {¶7}   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

must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175

(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.

       {¶8}   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

       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
Stark County, Case No. 2014CA00023                                                      4


      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.

             (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.

             (16) Any other factor the court considers relevant.



      {¶9}   R.C. 2151.414(B)(1)(b) specifically states 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 the "child is abandoned." Clear and convincing evidence is
Stark County, Case No. 2014CA00023                                                       5


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 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.

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

determining the best interests 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
Stark County, Case No. 2014CA00023                                                   6


       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;

              (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.



       {¶11} In its decision filed January 21, 2014, the trial court determined the

following:



              3. [R.] [C.] cannot be placed with Mother or Father, or any relative

       at this time or within a reasonable period of time.

              4. Father, Angelo Collazo, Jr., abandoned this child by failing to

       visit with her for a period in excess of ninety (90) days.

              5. Legal custodian, Kimberly Harlan, abandoned this child by failing

       to visit with her for a period in excess of ninety (90) days.
Stark County, Case No. 2014CA00023                                                     7


              6. Mother, Angela Ball, abandoned this child by failing to visit with

       for a period in excess of ninety (90) days.

              7. This child cannot be placed with Mother due to incarceration for

       a period of ten (10) years of which she has only served five (5) years.

              8. It is in the best interest of [R.] [C.], born March 28, 2000, that

       permanent custody be granted to the Stark county Department of Job and

       Family Services.



       {¶12} In its findings of fact filed contemporaneously with the judgment entry, the

trial court specifically found the following relative to R.C. 2151.414(B)(1)(b):



              1. This case involves one child namely, [R.] [C.], born March 28,

       2000. Mother is (sic) this child is Angela Ball and father is Angelo Collazo,

       Jr. The case began when the legal custodian, Kimberly Harlan, could no

       longer care for the child. She has been in Agency custody since April 4,

       2013. Mother is currently incarcerated serving a ten year sentence in

       prison. Mother is not available to care for this child. Counsel for Kimberly

       Harlan appeared and stated that despite his client's failure to appear, she

       agreed that permanent custody was in the best interest of [R.].

              2. Rachel Weingart is the ongoing caseworker for this child. She

       has been involved since May 2013. Since that time Mother had three

       visits with the child at prison. The first occurred in August 2013, then in

       September 2013, and the last occurred in November 2013. Ms. Weingart
Stark County, Case No. 2014CA00023                                                            8


         testified that prior to Mother's visits in prison she failed to visit with her for

         a period in excess of 90 days.



         {¶13} It is appellant's position that because she saw the child during prison visits

on August 20, September 3, and November 16, 2013, she had not abandoned her child.

T. at 23. Appellant's contact with the child was only recent, and there existed a period

of ninety days wherein there had been no contact. T. at 15. The visits were requested

by the child and were managed by appellee. T. at 23.

         {¶14} Although originally there was relative placement (Kimberly Harlan), that

was terminated by Ms. Harlan, and numerous other family placements have failed. T. at

10, 13-14, 22.

         {¶15} Appellant is in the middle of a ten year prison term for aggravated

vehicular homicide. T. at 11-12. Any return to appellant of this thirteen year old child

would be after the child reaches the age of majority.              Father is not interested in

placement and has not completed any documents as requested by the caseworker. T.

at 12.

         {¶16} We find the undisputed tragic facts of this case unfortunately lead to the

conclusion that this child has been abandoned by both parents and relative placement

is not available.

         {¶17} We concur with the trial court's determination that the necessity for

permanent custody has been established by sufficient clear and convincing evidence. A

five year wait for reunification is clearly not a reasonable amount of time.
Stark County, Case No. 2014CA00023                                                     9


      {¶18} Because of these facts, the child has been subjected to and affected by

the various placements as explained by the caseworker (T. at 20):



             A. I think the profound effect on the child is that she's had um a lot

      of disappointments in her life. She's had many people who have given up

      on her.    Um family members have tried to manipulate this case by

      manipulating her. Um putting too much...she feels like she has to be in

      charge of how her life is. And she's only thirteen years old. Um she, she's

      just...her family has lied to her. They've told her yes she can live with, you

      can live with us, and then told the Agency no we're not prepared to have

      her. And it's just, she's had so much disruption.



      {¶19} The child has bonded with her foster mother and the foster mother is

committed to the child. T. at 21-22. The caseworker opined the child's best interest

would be best served with permanent custody to appellee (T. at 23-24):



             A. Because [R.] needs a permanent placement.           She needs it.

      She's never ever had a place where she belongs. And where, no matter

      how she acts out, or chooses to be, they stick by her. She's never had

      that. And every child deserves that. And [R.], my heart breaks for [R.]

      because she's just had such a rough time. And I want to see that for her

      too. I know that, I mean if the Agency were granted permanent custody,

      there's no guarantee that [R.] could maintain contact with her family. But
Stark County, Case No. 2014CA00023                                                  10


       as an Agency, our policy is to try to maintain those ties and those bonds,

       even in an adoptive placement. And so I don't see that [R.] would lose

       anything, but would gain a lot.



       {¶20} We find the best interest of the child was fully established.

       {¶21} Upon review, we find the trial court's decision to grant permanent custody

of the child to appellee is not against the manifest weight of the evidence.

       {¶22} Assignments of Error I and II are denied.

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

Juvenile Division is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




SGF/sg 520
