[Cite as In re D.S., 2011-Ohio-6380.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                            :    JUDGES:
                                             :    Hon. William B. Hoffman, P.J.
D. S.                                        :    Hon. Sheila G. Farmer, J.
                                             :    Hon. John W. Wise, J.
MINOR CHILD                                  :
                                             :    Case No. 2011CA00169
                                             :
                                             :    OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common
                                                  Pleas, Juvenile Division, Case No.
                                                  2011JCV0574


JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 December 12, 2011




APPEARANCES:

For Appellant                                     For Appellee

MARY G. WARLOP                                    JERRY COLEMAN
116 Cleveland Avenue, NW                          221 Third Street, SE
Suite 500                                         Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2011CA00169                                                    2

Farmer, J.

        {¶1}   On April 21, 2011, appellee, the Stark County Department of Job and

Family Services, filed a complaint for permanent custody of D. S. born April 18, 2011,

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

Daneeca Strong; father is Donald Strong. An amended complaint was filed on April 25,

2011.

        {¶2}   On May 19, 2011, appellant filed a motion for legal custody of the child.

On June 20, 2011, father also filed a motion for legal custody. A hearing was held on

June 27, 2011. The trial court found the child to be dependent. By judgment entry filed

July 7, 2011, the trial court granted permanent custody of the child to appellee.

Findings of fact and conclusions of law were filed same date.

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

consideration. Assignments of error are as follows:

                                            I

        {¶4}   "THE TRIAL COURT ERROR (SIC) BY FAILING TO COMPLY WITH R.C.

2151.28(L) WHEN ISSUING ITS DECISION."

                                            II

        {¶5}   "THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

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

THAT IT IS IN THE BEST INTEREST OF THE MINOR CHILD TO GRANT

PERMANENT CUSTODY."
Stark County, Case No. 2011CA00169                                                       3


                                            III

      {¶6}   "THE    TRIAL    COURT      ERRED       IN   DETERMINING       PERMANENT

CUSTODY WHEN THE GUARDIAN AD LITEM HAD NOT SUBMITTED A REPORT TO

COURT AND COUNSEL."

                                             I

      {¶7}   Appellant claims the trial court erred in failing to comply with R.C.

2151.28(L). We disagree.

      {¶8}   R.C. 2151.28(L) states the following:

      {¶9}   "(L) If the court, at an adjudicatory hearing held pursuant to division (A) of

this section upon a complaint alleging that a child is an abused, neglected, dependent,

delinquent, or unruly child or a juvenile traffic offender, determines that the child is a

dependent child, the court shall incorporate that determination into written findings of

fact and conclusions of law and enter those findings of fact and conclusions of law in the

record of the case. The court shall include in those findings of fact and conclusions of

law specific findings as to the existence of any danger to the child and any underlying

family problems that are the basis for the court's determination that the child is a

dependent child."

      {¶10} Appellant argues the trial court's July 7, 2011 judgment entry fails to

comply with the statute. Upon review of the trial court's accompanying Findings of Fact

and Conclusions of Law filed same date, we find the trial court made extensive findings

on the issue from the evidence presented during the hearing. Included are findings that

an expert opined that appellant suffers from schizophrenia, delusions, and auditory and

visual hallucinations, and her delusions interfere with her ability to parent. These facts
Stark County, Case No. 2011CA00169                                                       4


are set forth in Finding of Fact No. 8 and support the conclusion that the child is a

dependent child.

       {¶11} Assignment of Error I is denied.

                                              II

       {¶12} Appellant claims the trial court's decision on best interests was not proven

by clear and convincing evidence given the strong bond that exists between her and the

child. We disagree.

       {¶13} R.C. 2151.414(B) enables the court to grant permanent custody if the

court determines by clear and convincing evidence that it is in the best interest of the

child. 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 established."

Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. See also,

In re Adoption of Holcomb (1985), 18 Ohio St.3d 361. "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.

       {¶14} R.C. 2151.414(D) sets out the factors relevant to determining the best

interests of a child. Said section states relevant factors include, but are not limited to,

the following:

       {¶15} "(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;
Stark County, Case No. 2011CA00169                                                       5


       {¶16} "(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;

       {¶17} "(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***;

       {¶18} "(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;

       {¶19} "(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child."

       {¶20} Although appellant and father have filed separate appeals (Stark App.

Case No. 2011CA00166), it is impossible to discuss the best interests of the child

without discussing both parents, given the fact that they are now married. T. at 10, 23-

24.

       {¶21} As noted in Assignment of Error I, appellant suffers from schizophrenia

and her delusions affect her ability to parent. Appellant refuses to accept the fact that

father is a sexual offender who was convicted of gross sexual imposition for sucking the

breasts of an eight year old child. T. at 6-7, 10, 21, 45. She steadfastly maintained her

desire to stay with father and have him present in her life, home, and the child's life. T.

at 10-11. Appellant has chosen father over her children in the past. T. at 23. She

explained her reasoning as follows:
Stark County, Case No. 2011CA00169                                                        6


         {¶22} "A. Yeah, but…as far as um…you telling me that I need to separate from

my husband, that will be determinate that I should not be able to have to move away

from my husband because of him not being able to have the rights to, for him to see his

child. That's disrespectful right there. Because you all should have been already gave

him a case plan and did not. But yes, I will do what I have to do and you still give, didn't

give me a case plan for [D.]. Because I've done everything for [D.], [D.], and [D.].

         {¶23} "Q. Will you leave Mr. Strong today?

         {¶24} "A. Why would I leave him today?

         {¶25} "Q. I'm asking.

         {¶26} "A. Why would I leave my husband today?

         {¶27} "Q. Is that a no?

         {¶28} "A. Why would I leave my husband?

         {¶29} "Q. I get to ask the questions, not you. Will you leave him today?

         {¶30} "A. It don't make no sense. Will you leave your husband to have your

child? And you know you love your husband dearly. Now, would you do that? No, you

wouldn't, now would you? Look at it on your behalf. Would you leave your family in

order to have a child that you have brung up in this world and even got a chance to

bring 'em up, 'cause I even did nothing to the boy to be able to have a, a, a, a situation

that I shouldn't even be around the dad. Or to take care of my own, my own child. She

took my child up out of my hands, um…in the hospital." T. at 25.

         {¶31} As part of father's probation, he is not to be around children. T. at 11, 33,

61-62. At the time of the hearing, there was a no contact order between father and the

child.   T. at 33.    Appellant has had two other children removed from her custody
Stark County, Case No. 2011CA00169                                                        7


because of her mental illness. T. at 7, 18. Appellant admits to having no funds to care

for herself or the child. T. at 26. It is clear from the testimony that appellant blames her

failure to parent and not being financial secure on appellee and not herself. T. at 26-27.

       {¶32} Dr. Amy Thomas, who evaluated appellant on two occasions, testified

appellant would need psychiatric treatment to combat her schizophrenia which was

"chronic and life long" and caused delusions and auditory and visual hallucinations;

however, appellant did not believe she needed treatment. T. at 18, 43-44, 47-48. Dr.

Thomas explained appellant's decision to marry father as follows:

       {¶33} "A. ***Um....she believed that God directed her to marry the man she's

now married, Mr. Strong. Despite her awareness that by marrying him or reconciling

with him, she would likely lose custody of her two older children. She was very focused

that a man comes first. Then woman, then children. Um…so, there were a lot of things

that her religious (inaudible) really impaired her judgment." T. at 45.

       {¶34} Dr. Thomas opined appellant was unable to protect her children, and

questioned her ability to bond with the child.         T. at 45, 47-48.   Dr. Thomas also

questioned father's ability to parent and to be "hyper-vigilant" given that he did not

acknowledge appellant's mental issues and limitations. T. at 51.

       {¶35} In reviewing the entire record, we find the trial court's decision on the best

interests of the child to be supported by the testimony. Clearly appellant's extreme

religious delusions, her inability to comprehend the seriousness of permitting a sexual

offender to live in the home, and her choice to support the sexual offender over her

child, are sufficient to support the trial court's determination.

       {¶36} Assignment of Error II is denied.
Stark County, Case No. 2011CA00169                                                       8


                                            III

       {¶37} Appellant claims the trial court erred in granting permanent custody when

the guardian ad litem had not submitted a report to the trial court and counsel. We

disagree.

       {¶38} In its Conclusions of Law filed July 7, 2011, the trial court specifically

stated the following:

       {¶39} "The Court has noted that the Guardian has recommended that

permanent custody be granted however, given the fact that the report was submitted to

counsel for the parents in an untimely fashion, the Court has not relied upon the

Guardian ad Litem's report in making this determination of permanent custody."

       {¶40} Given the fact that the trial court did not consider the guardian's report, we

find the arguments herein to be moot.

       {¶41} Assignment of Error III is denied.
Stark County, Case No. 2011CA00169                                            9


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

Juvenile Division is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                        _s/ Sheila G. Farmer______________



                                        _s/ William B. Hoffman_____________



                                        _s/ John W. Wise   ______________

                                                     JUDGES




SGF/sg 1129
[Cite as In re D.S., 2011-Ohio-6380.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                              :
                                               :
D. S.                                          :
                                               :
MINOR CHILD                                    :        JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :        CASE NO. 2011CA00169




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

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

affirmed. Costs to appellant.




                                               _s/ Sheila G. Farmer______________



                                               _s/ William B. Hoffman_____________



                                               _s/ John W. Wise   ______________

                                                        JUDGES
