In re J.S.

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[Cite as In re J.S., 2009-Ohio-5098.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT IN RE: J.S. W.S. R.S. Dependent Children JUDGES: Hon. Sheila G. Farmer, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Case No. 09 CA 21 OPINION CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. F200839, F2008-40, and F2008-41 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: September 28, 2009 APPEARANCES: For Appellant Mother For Appellee DJFS JILL M. COCHRAN BURKETT & SANDERSON, INC. 21 West Church Street, Suite 201 Newark, Ohio 43055 JAMES MILLER 20 South Second Street Newark, Ohio 43055 Licking County, Case No. 09 CA 21 2 Wise, J. {¶1} Appellant Dana Sillin appeals the decision of the Licking County Court of Common Pleas, Juvenile Division, which granted permanent custody of her three children to Appellee Licking County Department of Job and Family Services ( LCDJFS ). The relevant facts leading to this appeal are as follows. {¶2} Appellant is the mother of J.S. and R.S. (daughters), and W.S. (a son). The father of J.S. (age 7) and W.S. (age 5) is Richard Sillin. The father of R.S. (age 3) is Craig Norman, who has filed a separate appeal in this matter. {¶3} On November 1, 2007, LCDJFS filed a complaint in the Licking County Juvenile Court alleging J.S., W.S., and R.S. were dependent children pursuant to statute. The complaint was dismissed and refiled on January 14, 2008. At the time of the original complaint, appellant and Craig Norman were living together as a couple, but they had recently been homeless. Appellant had left the children with Richard Sillin for several weeks in October 2007, even though she had a CPO against him for domestic violence. Appellant was unemployed and had been denied public assistance; Norman was receiving social security disability. Among other things, the three children s hygiene condition was deplorable: they were filthy, severely infested with lice, underweight, and lacking properly fitted clothes and shoes. There had also been a police report that Norman s teenage son had sexually assaulted J.S. {¶4} LCDJFS received temporary custody following shelter care proceedings. On February 15, 2008, LCDJFS presented an amended case plan, seeking permanent custody of the three children. On March 31 and April 1, 2008, the magistrate conducted an evidentiary hearing as to adjudication and disposition. At the conclusion of the Licking County, Case No. 09 CA 21 3 adjudicatory phase, the magistrate orally ruled that the children were found to be dependent. The dispositional phase then went forward. {¶5} On September 4, 2008, the magistrate issued a written decision finding J.S., W.S., and R.S. to be dependent, and recommending permanent custody of all three children to LCDJFS. {¶6} Appellant thereafter filed objections to the decision of the magistrate. On February 11, 2009, the trial court overruled the objections and adopted the decision of the magistrate. {¶7} Appellant filed a notice of appeal on February 17, 2009. She herein raises the following sole Assignment of Error: {¶8} I. THE TRIAL COURT S DECISION TO GRANT PERMANENT CUSTODY OF [J.S., W.S., AND R.S.] TO THE LICKING COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. I. {¶9} In her sole Assignment of Error, appellant contends the trial court s grant of permanent custody is against the manifest weight of the evidence. We disagree. {¶10} 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 its 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 Licking County, Case No. 09 CA 21 4 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 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. R.C. 2151.414(B)(1) Analysis {¶11} R.C. 2151.414(B)(1) reads as follows: Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: {¶12} (a) The child is not abandoned or orphaned or has not 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 the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents. {¶13} (b) The child is abandoned. {¶14} (c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. Licking County, Case No. 09 CA 21 5 {¶15} (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 * * *. {¶16} 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 (see R.C. 2151.414(B)(1)(a), supra), 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. See R.C. 2151.414(E)(1). {¶17} In the case sub judice, the record contains, inter alia, three volumes of transcripts pertaining to the adjudication/disposition/permanent custody evidentiary hearing of March 31 and April 1, 2008. The transcripts first reveal the pitiable state the children were in at the time of agency intervention: The foster mother, Marianne Fixel, recalled that when the children first arrived at her home, in addition to the aforementioned lice issues and lack of proper clothing and coats, they revealed that they had not been taught how to use toilet paper or take regular baths. At age seven, J.S. did not know her alphabet, numbers, colors, or animals. W.S., the boy, would gorge his food at mealtime to the point of throwing up, perhaps suggesting that the siblings were used to competing for food. The three children at first insisted on sleeping together in a pile on the floor, and indicated that they had sometimes slept in the bathtub at Licking County, Case No. 09 CA 21 6 appellant s home. Tr. at 30-31. J.S. and W.S. both had a type of chronic respiratory aliment when they went into foster care, and both have had ongoing speech issues. Also, Ms. Fixel at one point began noticing a urine smell in the house, and finally figured out that W.S. had been urinating into a heating vent. He explained to her that in the past, the children could pee wherever we wanted. Tr. at 51. W.S. and R.S. have also demonstrated aggressive behavior toward the two dogs and the cat who reside in the foster home. Ms. Fixel has also had to work with W.S. to keep him from grabbing his sisters genital and breast areas. {¶18} Ryan Houck of LCDJFS testified that the agency had had nine previous referrals concerning appellant, two referrals concerning Richard Sillin, and six referrals concerning Craig Norman. In regard to Richard Sillin, Houck noted that he had two children from a previous relationship who were ordered into permanent custody in 2004. After appellant and Richard became separated in 2004, the agency continued to provide services to assist appellant s mental health, drug/alcohol and housing issues. {¶19} The record also documents appellant s current mental health issues, which are chiefly avoidant personality disorder and bipolar disorder with rapid cycling. She has been inconsistent in obtaining treatment and counseling for same, despite assistance through the Moundbuilders program. Appellant also failed to complete her parenting classes. She has a past history of substance abuse, including a crack cocaine overdose. Although the agency was not aware of ongoing substance abuse problems (see Tr. at 206), appellant failed to complete a court-ordered drug and alcohol assessment. Furthermore, by the time of the evidentiary hearings, appellant had been living in a home on East Main Street for the previous two months, but she admitted to Licking County, Case No. 09 CA 21 7 having had fifteen residences over the course of the last five years. Tr. I at 12-13. Going back to the date of the birth of J.S., the number of documented moves rises to twenty. According to Houck, [t]his includes residence with other individuals, being homeless, being out of state, shelters, living in a car, hotels, various locations. Tr. at 221. {¶20} Upon review, we find the trial court's conclusions, pursuant to R.C. 2151.414(B)(1), that appellant has failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside the home and that they cannot be placed with either parent within a reasonable period of time, were supported by competent, credible evidence and do not constitute reversible error.1 Best Interests {¶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 disposition, the trial court is required to consider the factors contained in R.C. 2151.414(D). These factors are as follows: 1 Although we have focused herein on appellant-mother, we note Craig Norman has separately appealed, while Richard Sillin has not. We will address the case as applicable to Norman in a separate opinion. In regard to Richard Sillin, we find the record supports that placement with him of J.S. and W.S. cannot take place within a reasonable time. Licking County, Case No. 09 CA 21 8 {¶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; {¶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} In addition to other evidence pertinent to best interests as set forth earlier in this opinion, the trial court in the case sub judice was presented with the opinion of the guardian ad litem recommending permanent custody of the three children to the agency. Houck testified that permanent custody would be necessary to obtain a secure permanent placement for the children. Upon review, we find the record indicates that the children are faring as well as can be reasonably expected with Ms. Fixel, given the onerous start they have received in life. Although appellant protests that the trial court did not adequately detail its best interests analysis, we will herein indulge in all reasonable presumptions in favor of the regularity of the proceedings below. See Licking County, Case No. 09 CA 21 9 Channelwood v. Fruth (June 10, 1987), Summit App.No. 12797, citing In Re Sublett (1959), 169 Ohio St. 19, 20, 157 N.E.2d 324. We conclude the trial court's rulings concerning the three children at issue were made in the consideration of their best interests and did not constitute an error or an abuse of discretion. {¶29} Appellant's sole Assignment of Error is overruled. {¶30} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Juvenile Division, Licking County, Ohio, is hereby affirmed. By: Wise, J. Farmer, P. J., and Hoffman, J., concur. /S/ JOHN W. WISE___________________ /S/ SHEILA G. FARMER_______________ /S/ WILLIAM B. HOFFMAN_____________ JUDGES JWW/d 917 Licking County, Case No. 09 CA 21 10 IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT IN RE: J.S. W.S. R.S. Dependent Children : : : : : : : : : JUDGMENT ENTRY Case No. 09 CA 21 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Juvenile Division, Licking County, Ohio, is affirmed. Costs assessed to appellant. /S/ JOHN W. WISE___________________ /S/ SHEILA G. FARMER_______________ /S/ WILLIAM B. HOFFMAN_____________ JUDGES

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