[Cite as In re A.L., 2012-Ohio-483.]


                                           COURT OF APPEALS
                                       GUERNSEY COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT



                                                      JUDGES:
IN THE MATTER OF:                                     Hon. William B. Hoffman, P. J.
                                                      Hon. Sheila G. Farmer, J.
        A.L. and                                      Hon. John W. Wise, J.

        J.L.                                          Case No. 11 CA 25


DEPENDENT/NEGLECTED CHILDREN                          OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Juvenile Division, Case No. 09 JC
                                                  609


JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                            February 8, 2012



APPEARANCES:

For Appellee                                      For Appellant

AMBER D. WOOTTON                                  RONALD C. COUCH
ASSISTANT PROSECUTOR                              121 West 8th Street
139 West 8th Street, P. O. Box 640                Cambridge, Ohio 43725
Cambridge, Ohio 43725
Guernsey County, Case No. 11 CA 25                                                        2

Wise, J.

          {¶1}   Appellant-Father Terry Kaczur appeals the decision of the Guernsey

    County Court of Common Pleas, Juvenile Division, which granted permanent custody

    of the minor children A.L. and J.L. to Appellee Guernsey County Children Services

    Board (“GCCSB”). The relevant facts leading to this appeal are as follows.

          {¶2}   Appellant is the father of one of the two children at issue in this matter,

    A.L., born in 1996. The other child J.L., was born in 2002.1 The children’s mother is

    Debra Lucas, who has filed a separate appeal.

          {¶3}   On October 28, 2009, GCCSB filed a complaint in the Guernsey County

    Court of Common Pleas, Juvenile Division, alleging A.L and J.L. to be dependent,

    and/or neglected. GCCSB filed the complaint based on concerns about Debra’s mental

    health issues and Debra not providing proper health care concerning A.L. Both children

    were placed in temporary agency care via an ex parte order.

          {¶4}   The matter proceeded to an adjudicatory hearing on December 17, 2009.

    The trial court thereafter issued a judgment entry finding A.L. to be neglected and J.L.

    to be dependent.

          {¶5}   In the meantime, Appellant Kaczur and his mother, Carolyn Wigger, each

    filed a motion for custody of both children.

          {¶6}   On September 15, 2010, GCCSB filed a motion for permanent custody of

    A.L. and J.L.. Evidentiary hearings were conducted on the permanent custody motion

    on January 13, March 28, and July 15, 2011.



1
    As of the date of the judgment entry under appeal, J.L.’s paternity had not been
established. Appellee GCCSB does not appear to challenge appellant’s standing to
appeal as to both children.
Guernsey County, Case No. 11 CA 25                                                    3


     {¶7}   After hearing the evidence, the trial court issued a judgment entry on

August 3, 2011, granting permanent custody of A.L. and J.L. to the agency.

     {¶8}   On August 17, 2011, appellant filed a notice of appeal. He herein raises

the following three Assignments of Error:

     {¶9}   “I.   THE TRIAL COURT ERRED IN FINDING THAT THE CHILDREN

COULD NOT BE PLACED WITH THE MOTHER IN A REASONABLE AMOUNT OF

TIME PURSUANT TO O.R.C. SEC. 2151.414(B)(2).

     {¶10} “II.   THE TRIAL COURT ERRED IN FINDING THAT PERMANENT

CUSTODY WAS IN THE BEST INTERESTS OF THE CHILDREN UNDER O.R.C.

SEC. 2151.414(D).

     {¶11} “III. THE TRIAL COURT ERRED IN FINDING THAT IT SHOULD NOT

PLACE     THE     CHILDREN     WITH     CAROLYN       WIGGER[,]     THE      PATERNAL

GRANDMOTHER OF A.L.

                                            I.

     {¶12} In his First Assignment of Error, appellant contends the trial court erred in

granting permanent custody of A.L. and J.L. to the agency. We disagree.

     {¶13} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there

is relevant, competent and credible evidence upon which the fact finder could base his

or her judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App.No. CA-5758.

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 (1978), 54 Ohio St.2d
Guernsey County, Case No. 11 CA 25                                                          4


    279, 376 N.E.2d 578. Furthermore, it is well-established that the trial court is in the

    best position to determine the credibility of witnesses. See, e.g., In re Brown, Summit

    App.No. 21004, 2002-Ohio-3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St.2d

    230, 227 N.E.2d 212. In the case sub judice, the trial court relied on R.C.

    2151.414(B)(2), which states as follows:

          {¶14} “With respect to a motion made pursuant to division (D)(2) of section

    2151.413 of the Revised Code, the court shall grant permanent custody of the child to

    the movant if the court determines in accordance with division (E) of this section that

    the child cannot be placed with one of the child's parents within a reasonable time or

    should not be placed with either parent and determines in accordance with division (D)

    of this section that permanent custody is in the child's best interest.”2

          {¶15} In determining whether a child cannot be placed with either parent within a

    reasonable period of time or should not be placed with the parents, a trial court is to

    consider the existence of one or more factors under R.C. 2151.414(E), including

    whether or not “[f]ollowing 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

2
    Appellant has not herein specifically challenged the trial court's utilization of R.C.
2151.414(B)(2), which has a narrower application than R.C. 2151.414(B)(1)(a). See In
re A.U., Montgomery App. No. 22264, 2008–Ohio–186, ¶ 17. We decline to examine
this issue sua sponte.
Guernsey County, Case No. 11 CA 25                                                      5


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.” See R.C. 2151.414(E)(1).

      {¶16} At the outset, we note that Appellant-Father, who is on sex offender

probation in Florida, does not herein argue for custody to himself. He was not part of

the case plan; his procedural stance in this appeal is challenging permanent custody

per se and/or advocating that his mother, Carolyn Wigger, should be named custodian,

as further analyzed in the third assigned error, infra.

      {¶17} The record in the case sub judice reveals that A.L. has Hodgkin’s

Lymphoma and thus has specific medical needs. The mother, Debra Lucas, was

evaluated by Gary Wolfgang, Ph.D., and found to be “floridly psychotic,” diagnosed

with paranoid schizophrenia. Dr. Wolfgang expressed concerns over mother’s ability to

properly care for the children. According to the case worker, Johnna Denbow, mother

was compliant with most aspects of her case plan, but there have been questions as to

mother’s consistency in taking her psychotropic medication. Appellant nonetheless

maintains that mother was “completely compliant” with the case plan (Appellant’s Brief

at 10); however, even where a parent has participated in his or her case plan and

completed most or all of the plan requirements, a trial court may still properly determine

that such parent has not substantially remedied the problems leading to agency

involvement. See, e.g., In re Pendziwiatr/Hannah Children, Tuscarawas App.No. 2007

AP 03 0025, 2007-Ohio-3802, ¶ 27.
Guernsey County, Case No. 11 CA 25                                                        6


      {¶18} Upon review, we find the trial court did not commit reversible error, as

urged by appellant, in determining that A.L. and J.L. could not or should not be placed

with the mother, Debra Lucas, within a reasonable time under R.C. 2151.414(B)(2).

      {¶19} Accordingly, appellant's First Assignment of Error is overruled.

                                             II.

      {¶20} In his Second Assignment of Error, appellant contends the trial court erred

and abused its discretion in finding the children's best interests would be served by

granting permanent custody to the agency. We disagree.

      {¶21} It is well-established that “[t]he discretion which the juvenile court enjoys in

determining whether an order of permanent custody is in the best interest of a child

should be accorded the utmost respect, given the nature of the proceeding and the

impact the court's determination will have on the lives of the parties concerned.” In re

Mauzy Children (Nov. 13, 2000), Stark App.No. 2000CA00244, quoting In re Awkal

(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.

      {¶22} In determining the best interest of a child for purposes of permanent

custody disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D). These factors are as follows:

      {¶23} “(1) 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;

      {¶24} “(2) 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;
Guernsey County, Case No. 11 CA 25                                                     7


      {¶25} “(3) 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 * * *;

      {¶26} “(4) 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;

      {¶27} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

      {¶28} The record indicates that although A.L. and J.L. love their mother and

have looked forward to visits, A.L. has stated that she does not wish to return to living

with her mother. Both children were described as adjusting well to foster care.

Appellant, who lives out-of-state, has seen the children only once in the last decade,

although he has kept up with telephone contact and birthday gifts. The children were

“ambivalent” about maintaining contact with appellant. Furthermore, appellant is not

under any child support order. The guardian ad litem and CASA advocate have both

strongly recommended permanent custody and the need for a stable environment.

      {¶29} Upon review, we find the trial court did not err in determining the best

interests of the children would be best served by granting permanent custody to

GCCSB.

      {¶30} Appellant's Second Assignment of Error is overruled.
Guernsey County, Case No. 11 CA 25                                                          8


                                             III.

      {¶31} In his Third Assignment of Error, appellant contends the trial court erred in

denying his mother, Carolyn Wigger’s, motion for custody of both children. We

disagree.

      {¶32} One of the dispositional alternatives available to a juvenile court in certain

cases is relative custody. See R.C. 2151.415(F) and R.C. 2151.415(A)(3). However,

the Ohio Supreme Court has determined that the duty of a court in determining the

best interest of a child does not include a finding that no suitable relative is available for

placement. See In re Schaefer (2006), 111 Ohio St.3d 498.

      {¶33} In the case sub judice, Carolyn Wigger, the paternal grandmother of A.L.

and purported paternal grandmother of J.L., lives in Florida and has had limited contact

with the children. Evidence was presented to the trial court that interstate home studies

have twice resulted in negative recommendations, in part because of multiple

instances of lack of cooperation with appointments and failure to provide needed

information by Ms. Wigger.

      {¶34} Under the facts and circumstances presented in the case sub judice, we

hold the trial court did not err or abuse its discretion in declining to award custody to

Ms. Wigger in lieu of permanent custody.
Guernsey County, Case No. 11 CA 25                                                  9


      {¶35} Appellant's Third Assignment of Error is overruled.

      {¶36} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.



By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0130
Guernsey County, Case No. 11 CA 25                                              10


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                        :
                                         :
      A.L. and                           :         JUDGMENT ENTRY
                                         :
      J.L.                               :
                                         :
DEPENDENT/NEGLECTED CHILDREN             :         Case No. 11 CA 25




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

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

affirmed.

      Costs assessed to appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                           JUDGES
