[Cite as In re D.H., 2016-Ohio-196.]


                                           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. 2015CA00180
                                                :
                                                :       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

AARON KOVALCHIK                                         JAMES B. PHILLIPS
116 Cleveland Avenue, NW                                300 Market Avenue North
Suite 808                                               Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2015CA00180                                                       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.     Father of the child is appellant, Dante Hill, Sr.; mother is

appellant, Teria Thomas.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 appellant was

participating in the case plan services designed to assist him with his anger

management issues.

       {¶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.




Mother was a part of the underlying case and is the subject of her own appeal in Case
1

No. 2015CA00178.
Stark County, Case No. 2015CA00180                                                    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 JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT       OR   SHOULD     NOT      BE   PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE."

                                            II

      {¶8}    "THE   JUDGMENT         OF   THE     TRIAL   COURT   THAT    THE    BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF

PERMANENT         CUSTODY       WAS    AGAINST      THE    MANIFEST    WEIGHT      AND

SUFFICIENCY 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 him

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,

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
Stark County, Case No. 2015CA00180                                                       4


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

       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. 2015CA00180                                                      5


       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)(d) 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:



              (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
Stark County, Case No. 2015CA00180                                                   6


       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} 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, 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.

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

determining the best interest of a child:
Stark County, Case No. 2015CA00180                                                     7


            (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

     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;
Stark County, Case No. 2015CA00180                                                        8


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

       section apply in relation to the parents and child.



       {¶15} 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).

       {¶16} 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 was terminated from his

anger management counseling after his counselors concluded he was not progressing

and was receiving no benefit from attending the program, failed to complete Quest

services, and lived with his mother when in Canton, but traveled back and forth to

Columbus.

       {¶17} Appellant argues "he completed the aspects of the case plan that

specifically applied to him." Appellant's Brief at 8.

       {¶18} The ongoing caseworker, Wanda Pounds, testified appellant's case plan

required him to undergo anger management counseling and substance abuse treatment

through Quest. T. at 12. Appellant started anger management counseling, but was

discharged "due to not receiving any benefit of the program."            Id.   He did not

successfully complete an anger management program. Id.            Appellant only attended

three sessions at Quest and never returned for treatment. Id. Appellant resided with

his mother when in Canton, but traveled to Columbus to look for work.               Id.   In

Columbus, he resided in a shelter at one point. Id. Appellant had not been engaged in
Stark County, Case No. 2015CA00180                                                      9


any services after April 2015. T. at 13. He did visit with the child when in Canton. T. at

12. Appellant's sobriety issues were uncertain, and there were concerns whether or not

he would remain in Canton. T. at 13.

       {¶19} 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.

       {¶20} Appellant testified he attended Quest, but stopped because "[t]here is

nothing I did for me to go to Quest" and "[b]ecause I don't have no problem." T. at 47,

54. He stated he was actively trying to find a job in Columbus because Canton "is the

fastest dying city in America according to Forbes magazine on the top 10 list." T. at 49.

He stated he did not have a substance abuse problem as he just enjoyed beers while

watching football, and did not have an anger management problem, although he

admitted to telling a caseworker "fuck you bitch" because he was angry about the case

plan and having his child taken away from him. T. at 47-48, 52. Appellant admitted at

the time of the hearing he did not have employment or stable housing, "[t]hat's why I

went to Columbus so I can get a job and get my own place." T. at 55.

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

The child and appellant have bonded. T. at 59. However, Ms. Pounds opined the

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

the child needed stability. Id. The child was residing in a special needs foster home

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

be served by being returned to the mother, despite her ongoing issues with alcohol

abuse. T. at 70. He wanted to stay involved in the child's life. T. at 70-71.
Stark County, Case No. 2015CA00180                                                      10


       {¶22} 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.

       {¶23} "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.

       {¶24} 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.

       {¶25} Assignments of Error I and II are denied.
Stark County, Case No. 2015CA00180                                       11


      {¶26} 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
