In re

• Decision Date: 25 August 2014
• Docket Number: Case No. 2014CA00083
• Parties: IN RE: N.C.P.
• Court: Ohio Court of Appeals

2014 Ohio 3694

IN RE: N.C.P.

Case No. 2014CA00083

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

August 25, 2014

JUDGES:

Hon. W. Scott Gwin, P.J.

Hon. Patricia A. Delaney, J.

Hon. Craig R. Baldwin, J.

OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2013JCV00315

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JAMES PHILLIPS

SCDJFS

221 Third Street S.E.

Canton, OH 44702

For Defendant-Appellant

DAVID L. SMITH

245 33rd Street N.W.

Canton, OH 44709

Gwin, P.J.

{¶1} Appellant-mother, Nichole Arntz ["Mother"] appeals the April 22, 2014, judgment entry of the Stark County Court of Common Pleas, Family Court Division, which terminated her parental rights with respect to her minor child N.C.P. and granted permanent custody of the child to appellee, Stark County Department of Jobs and Family Services ("SCJFS").

Facts and Procedural History

{¶2} On April 1, 2013, SCJFS filed a complaint seeking temporary custody of N.C.P. (b. 03/30/2013) and alleging the child to be dependent and/or neglected. On June 5, 2013, the child was found to be dependent. The court further found that the agency had made reasonable efforts to prevent the need for removal of the child from the home and approved and adopted the case plan.

{¶3} During the course of the case, the trial court has conducted the required reviews every six months and has found that the SCJFS has made reasonable efforts to reunite the family.

{¶4} On February 30, 2014, SCJFS filed a motion for permanent custody of N.C.P. On April 22, 2014, a hearing on the motion for permanent custody was held at which the following evidence was presented.

{¶5} Mother was to complete a parenting assessment at Northeast Ohio Behavioral Health, follow through with a Quest drug and alcohol assessment and complete any recommended treatment, submit to random drug test, and secure stable housing and employment.

{¶6} Mother completed both the parenting and Quest assessments. The parenting assessment recommended that Mother successfully complete the Goodwill Parenting Program, complete drug treatment, attend two AA meetings a week, and secure stable housing and employment. Mother failed to complete those services. Mother failed to complete the Goodwill Parenting Program. Mother was terminated from Quest treatment for non-compliance. Mother failed to comply with random urine drug test and failed to obey a court order dated September 24, 2013 for a hair follicle drug test. The last drug test Mother submitted to the worker was positive for cocaine. Mother did not keep in contact with the caseworker. Mother did not have independent housing or employment on the day of trial.

{¶7} Mother has past legal history with SCJFS in cases 2010JCV00178 and 2011JCV00084. The concerns in those cases were the same as in the present case. Mother failed to complete the case plan requirements in both of those cases and she stipulated to the grant of permanent custody to SCJFS of those children. Mother admitted during her testimony on cross-examination that this was the third time she had a chance to work case plan services and had not successfully completed them.

{¶8} On the date of the permanent custody trial Mother was in custody at the Stark Regional Community Corrections Center ["SRCCC"]. Mother was at SRCCC after being convicted for failure to comply with a police officer and drug abuse. Mother was enrolled in courses at SRCCC designed to help with chemical dependency, criminal activity, and to find employment.

{¶9} Mother was not working her case plan or visiting the child before her incarceration. The caseworker testified that Mother had not visited with her child sinceNovember of 2013. Mother contended that she was incarcerated for part of that time and unable to visit. The caseworker testified that Mother was released at one point while her case was pending and still did not visit with the child. Mother admitted to being released from jail on January 21, 2014 and not visiting with her child between that date and the permanent custody trial.

{¶10} The caseworker testified during the best interest hearing that the child was placed with the foster family that has adopted his siblings. The child has been placed in this home since April 1, 2013 and is the only home he has ever known. The foster parents are the only parents the child knows and they wish to adopt him if the permanent custody was granted. The child is very bonded to the foster parents and no bond exists between the child and Mother. The caseworker testified that she believed it was in the best interest of the child that the permanent custody be granted to the SCJFS.

{¶11} Mother testified that if she does not have independent housing when released from SRCCC she will live with her sister in East Canton. Mother also has the opportunity to go to the YMCA, but that choice would extend her involvement with SRCCC and is not stable. Mother testified that her desire is to have more time to complete case plan services and ultimately have placement of her child.

{¶12} On April 22, 2014, the trial court filed Findings of Fact and Judgment Entries, which terminated the parental rights of Mother and granted permanent custody of N.C.P. to SCJFS.

Assignments of Error

{¶13} On appeal, Mother asserts the following assignments of error,

{¶14} "I. THE JUDGMENT OF THE TRIAL COURT THAT APPELLANT ABANDONED THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶15} "II. THE COURT'S ORDER STATING THAT [N.C.P.] 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."

I & II

{¶16} Because we find the issues raised in Mother's first and second assignments of error are closely related, for ease of discussion, we shall address the assignments of error together.

A. Burden Of Proof

{¶17} "[T]he right to raise a child is an 'essential' and 'basic' civil right." In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody and management of his or her child is "fundamental." Id.; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's rights has been described as, "* * * the family law equivalent to the death penalty in a criminal case." In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist.1991). Therefore, parents "must be afforded every procedural and substantive protection the law allows." Id.

{¶18} An award of permanent custody must be based upon clear and convincing evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined "clear andconvincing evidence" as "[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." In re Estate of Haynes, 25 Ohio St.3d 101, 103104, 495 N.E.2d 23 (1986).

B. Standard of Review

{¶19} The Ohio Supreme Court has delineated our standard of review as follows,

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. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v. Rimenik, 115 Ohio St. 11, 152 N.E. 14.

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will affirm the trial court's findings "if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established." In re Adkins, 5th Dist. Tuscarawas Nos. 2005AP06-0044 and 2005AP07-0049, 2006-Ohio-431, ¶17, rev'd on other grounds, In re D.A. 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829.

{¶20} In Cross, the Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or the other of the parties to an action, is not to be taken as a basis for resolving disputed facts. The degree of proof required is determined by the impression which the testimony of the witnesses makes upon the trier of facts, and the character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of testimonial value. Where the evidence is in conflict, the trier of facts may determine what should be accepted as the truth and what should be rejected as false. See Rice v. City of Cleveland, 114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

C. Requirements for Permanent Custody Awards

{¶21} R.C. 2151.414 sets forth the guidelines a trial court must follow when deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court schedule a hearing and provide notice upon filing of a motion for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child or has placed the child in long-term foster care.

{¶22} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private agency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply:

(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or

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