In re A.P.
For Appellee
JULIE S. BLAISDELL
Assistant Prosecuting Attorney
Fairfield County, Ohio
201 South Broad Street - 4th Floor
Lancaster, Ohio 43130
For Appellant - Jason Barbee, Father
JACOB ORT
13297 Rustic Drive
Pickerington, Ohio 43147
For Guardian Ad Litem & A.P.
CHRISTINE McGILL
123 Broad Street, Ste. 207
Lancaster, Ohio 43130
Edwards, J.
{¶1} Appellant, Jason Barbee, appeals from the December 13, 2010, Entry of the Fairfield County Court of Common Pleas, Juvenile Division, terminating appellant‘s parental rights and granting permanent custody of A.P. to Fairfield County Child Protective Services.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Jason Barbee and Melissa Price are the parents of A.P., who was born on October 4, 2007. The two were never married.
{¶3} On June 23, 2008, Fairfield County Department of Job and Family Services (FCCPS) filed a complaint alleging that A.P. was a dependent child. The complaint indicated that appellant and Melissa had a history with Fairfield County Child Protective Services dating back to 2008 that included concerns over illegal substance use, untreated mental health concerns and domestic violence. Following a shelter care hearing, A.P. was placed in the temporary custody of FCCPS.
{¶4} As memorialized in an Entry filed on August 19, 2008, A.P. was found to be a dependent child and temporary custody of her was granted to Fairfield County Child Protective Services. The trial court, in its Entry, ordered appellant to submit to an evaluation at the Recovery Center to determine whether he had issues with drugs and/or alcohol and to successfully comply with all recommendations. Appellant also was ordered to submit to random drug and/or alcohol screens.
{¶5} On April 28, 2009, the temporary custody of A.P. with Fairfield County Child Protective Services was terminated and A.P. was returned to the custody of Melissa under court ordered protective supervision. As memorialized in an Entry filed
{¶6} Thereafter, on September 14, 2009, Fairfield County Child Protective Services filed a motion seeking temporary custody of A.P. Pursuant to an Entry filed on October 27, 2009, A.P. was again placed in the temporary custody of Fairfield County Child Protective Services.
{¶7} On March 3, 2010, Fairfield County Child Protective Services filed a motion seeking permanent custody of A.P. The motion stated, in relevant part, as follows:
{¶8} “The agency represents to the Court that there has been a lack of progress and consistency for both Melissa Price and Jason Barbee, [appellant] parents of A.P. The agency represents to the Court that A.P. cannot be reunited with either parent within a reasonable time or should not be reunified with either parent.”
{¶9} On September 9, 2010, the Guardian Ad Litem filed a report recommending that A.P. be placed in the permanent custody of Fairfield County Child Protective Services.
{¶10} Thereafter, a trial on such motion commenced on October 26, 2010. Prior to the start of trial, Melissa, who was represented by counsel, indicated to the trial court that she was not contesting the agency‘s motion for permanent custody of A.P.
{¶11} At the trial, appellant testified that he had three children, the youngest of whom was A.P. While his oldest child was living with him, appellant had lost visitation rights with respect to his middle child. Appellant testified that he had been in jail three times and that, in January of 2008, he went to jail after violating his probation by failing
{¶12} At trial, appellant testified that he was picked up on a second driving under the influence charge on March 14, 2010, and served ten days in jail, from July 19, 2010, to July 29, 2010. At the time, appellant‘s blood alcohol content was .12, but appellant denied that he was intoxicated at the time. Appellant, as of the time of the trial, was on probation for the second driving under the influence charge and knew that, if he violated the same, he could end up serving 170 days in jail. According to appellant, he had never been to jail for anything other than the driving under the influence or the probation violations. He testified that the last time that he used alcohol was in March of 2010.
{¶13} Appellant testified that his oldest daughter came to live with him in May of 2010 and that, when he was in jail in July for ten days, his mother and father took care of her. Appellant testified that he lived with his parents. He admitted that it was difficult for him to take care of children while he was in jail.
{¶14} Appellant testified that, in late July of 2008, he was ordered to submit to random screens for drugs and/or alcohol, to get an evaluation of drug and/or alcohol issues and to follow any recommendations. He testified that his case plan required him
{¶15} Appellant testified that he had not received group counseling and that he received individual counseling from Robert Frazier every two weeks. He testified that he last saw Frazier the end of September of 2010, and that although he had rescheduled a session that was set for the first week of October, he missed the same because he did not write the date down. Appellant had an appointment to see Frazier scheduled for November 15, 2010. Appellant had started counseling with Frazier in 2006 due to his first driving under the influence. He testified that the only time that he had shown any consistency in meeting with Robert Frazier was in August and September of 2010. Appellant also testified that he did not attend group counseling because the group sessions were held on Tuesdays at 5:00 p.m. and, if he was not at work, he was exercising visitation.
{¶16} Appellant, when asked, testified that according to the classes that he had attended, he thought that he was an alcoholic. However, on direct, he testified that he did not believe that he had a substance abuse or alcohol problem. He was unable to state how many sober days that he had and, while he started attending twelve-step
{¶17} Testimony was adduced that appellant had been living with his parents for approximately two years and that he lived on and off with them for his whole life. He does not pay rent. When asked if he would financially be able to live on his own, appellant indicated that he would not and, if forced to leave his parents’ house, would try to find public assistance. Appellant testified that he was not currently employed and that he last had a job in April of 2010 as an electrician through a temporary agency. He had worked for the agency for approximately a year and a half until he was laid off. Appellant testified that he was on unemployment and had roughly five months left before it expired. He testified that he was waiting on one company to try and call him back and was not looking for any other type of job.
{¶18} At trial, appellant testified that his oldest daughter lived with him and that he paid for her food, clothing and necessities. He had not paid any child support for A.P. since April of 2010.
{¶19} Appellant was questioned about the trial court‘s July 2008, order that he submit to random screens for drugs and/or alcohol. He testified that he missed one screen in October of 2010, and missed three screens in August of 2010, because he was having problems with the breathalyzer system hooked up to his car. Appellant missed six screens in July of 2010, but was in jail ten of those days, missed three screens in March of 2010, two in February of 2010, and six in January of 2010. Appellant did not have the breathalyzer system hooked up to his car until after his second driving under the influence. Appellant missed nine screens in December of
{¶20} Appellant testified that he did not know who A.P.‘s pediatrician was and that he was ready for her to come home with him right away. While he used to see her on Sundays, he testified that he no longer did because of non-compliance with drug testing, although he continued seeing A.P. every Tuesday and Thursday from 5:00 to 7:00 for a year. Appellant testified that, in November of 2009, he missed two out of four visits with A.P. because of the weather and missed one visit in January of 2010. In February of 2010, appellant cancelled five out of eight visits due to the weather and in March of 2010, cancelled five out of nine visits due to his driving under the influence because he did not have driving privileges. Appellant also missed one visit in April of 2010, four out of eight in May of 2010, four out of nine in June of 2010, and in July of 2010, cancelled three visits. The following is an excerpt from his testimony:
{¶21} “Q. Okay. So basically in September, you only missed one visit and that would have been at the end of the month?
{¶22} “A. Yes.
{¶23} “Q. And I have that you haven‘t missed any visits so far in October, is that correct?
{¶24} “A. Correct.
{¶25} “Q. But that you‘ve left early twice to go screen.
{¶26} “A. Yes.
{¶27} “Q. Is that correct?
{¶28} “A. Yes, Ma‘am.
{¶30} “Q. So is it fair to say that with respect to visiting A.P. that you‘ve really only been consistent just in September and October of 2010?
{¶31} “A. Yes.
{¶32} “Q. And then in August of 2010 that you canceled four out of nine visits, does that sound accurate?
{¶33} “(Pause)
{¶34} “A. Yes, because that was interlock problems.
{¶35} “Q. And I had that you were late for one visit, that would have been interlock?
{¶36} “A. I believe that was when my muffler fell off.
{¶37} “Q. Okay. But in September, 2010, I have that you attended all of your visits, is that correct?
{¶38} “A. Yes.
{¶39} “Q. And I believe that in August, I take that back, I have that you missed one visit at the end of September, that you were having back problems, is that....
{¶40} “Q. But that (sic) before that you were inconsistent, would you agree with that?
{¶41} “A. Sometimes.” Transcript at 84- 86.
{¶42} Tracy Hotel, a caseworker for Fairfield County Child Protective Services, testified that at one point, she was assigned to A.P. and remained the caseworker until August of 2009. She testified the agency became involved with A.P. after there were reports that Melissa was using drugs with the kids present and had track marks on her
{¶43} Hotel testified that the agency came up with a case plan for appellant that he signed off on. The case plan required appellant to address his substance abuse issues. The agency wanted appellant to submit to random drug and/or alcohol screens and to obtain counseling for his drug and/or alcohol issues. Hotel testified that from July of 2008 through August of 2009, appellant screened approximately 57 times and only missed seven screens during that period. She testified that he was very sporadic with the counseling for drugs and alcohol and that, while she was the caseworker, it was her opinion that appellant was not complying with his case plan.
{¶44} Hotel testified that appellant‘s case plan also required him to maintain housing and employment and that appellant had stable housing with his parents. She testified that appellant successfully completed this aspect of his case plan while she was the caseworker. Hotel also testified that appellant visited with A.P. about 29 out of a possible 36 times while she was the caseworker and that appellant was appropriate during the visits.
{¶45} The next witness to testify was Robert Frazier, a clinical counselor. Frazier testified that appellant had been a client of his for about three years and that appellant received individual counseling usually Wednesdays from 7:00 p.m. to 8:00 p.m. for drug
{¶46} Stacey Bergstrom, a caseworker for Fairfield County Child Protective Services, testified that she was A.P.‘s current caseworker and had been her caseworker since mid-August of 2009. The following testimony was adduced when she was asked about whether appellant, as part of his case plan, had been consistent with his screens for drugs and/or alcohol:
{¶47} “A. As far as his drug screening, um, that‘s been one, uh, area that I‘ve tried to work with Jason over the last, um, year or so on. Um, he‘s been fairly inconsistent, um, as far as....
{¶48} “Q. And when you say you‘ve tried to work with him, what kind of things are you, what do you mean when you say that?
{¶49} “A. Uh, I mean, any meeting, phone conversation, home visit that I‘ve had with Jason, the conversation of drug screens has come up and, you know, what is
{¶50} “Q. All right. And does that cause the agency to still have concerns about his drug or alcohol use?
{¶52} “Q. And why is that?
{¶53} “A. Um, the drugs, the drug screening is set up in order for parents to be able to show their sobriety, to prove that they are being clean and sober without our drug screens. Uh, from parents that we work with, they, we have no way of knowing if they‘re being clean and sober. Um, I know Jason reported to me that he wasn‘t using, um, but again, I had no proof of that and then we had to concern of his DUI in March, 2010, which, um, was a definite indicator that he was using alcohol.” Transcript at 159-162.
{¶54} Bergstrom further testified that appellant‘s counseling with Robert Frazier had been inconsistent over the last year and that appellant had gone for months at a time within counseling. Testimony was adduced that Frazier was out due to medical reasons for a chunk of time, and that appellant, although advised to seek counseling from someone else at the agency during such time, did not do so. She further testified that while a twelve step program and sponsor were not part of appellant‘s case plan, she had talked with appellant in August of 2009 about getting into meetings and getting a sponsor. She testified that the agency was concerned that appellant had not been to a meeting in over a year, especially given his recent driving under the influence.
{¶55} Bergstrom testified that appellant‘s mother, in September of 2010, had expressed interest in having placement of A.P. At the time, the trial in this matter was set for September 14, 2010. Bergstrom testified that there was a concern over the grandparents’ health because both were on medical leave and, as of the fall and winter of 2010, were not in a position to take care of A.P. She testified that appellant had
{¶56} Bergstrom testified that A.P. had been in the agency‘s custody going on 24 months and that, other than appellant‘s parents, no other family members had come forward requesting placement. She testified that A.P. had been with Sherry and Terry Hines for an extensive period of time and had bonded with them. Bergstrom testified that Sherry Hines was A.P.‘s childcare provider when either the agency had custody or Melissa had custody with court-ordered protective supervision. From April of 2009 to August of 2009, the Hines’ family provided protective daycare for A.P. According to Bergstrom, Melissa had suggested Sherry Hines. Bergstrom testified that A.P. needed a legally secure permanent placement because she needed stability and consistency and that A.P. could not get this type of placement with appellant due to his substance abuse issues and his legal difficulties. She indicated that the agency was concerned that appellant had been in jail five times in the last three years. The following is an excerpt from her testimony:
{¶57} “Q. What is the position of the Agency as to what would be, well, let me back up. We talked about her need for a legally secure permanent placement and you‘ve testified that she can‘t have that, can‘t find that with her mother and that she
{¶58} “A. the hope would be that she would be able to, um, that she would be able to find a forever home and that a family would be able to adopt her and provide her that stability.
{¶59} “Q. And is that what the Agency believes to be in her best interest, to be placed in the permanent custody of Fairfield County Child Protective Services?
{¶60} “A. Yes.” Transcript at 190-191.
{¶61} Ray Barbee, Jr., A.P.‘s grandfather, testified that he was an electrical engineer and that he would be able to financially support A.P. if he received custody of her. He testified that he and his wife had not done anything regarding obtaining custody, but that they had let it be known that they would like custody of her if anything came up. He testified that their medical issues had been taken care of. Barbee further testified that he believed that his oldest son had contacted the agency about obtaining custody of A.P., but that he did not know what became of it. He testified that he was financially able and willing to assume legal custody of A.P.
{¶62} Pursuant to an Entry filed on December 13, 2010, the trial court terminated appellant‘s parental rights and granted permanent custody of A.P. to Fairfield County Child Protective Services. The trial court, in its Entry, found that reasonable efforts had been made by the agency to finalize permanency for A.P. The trial court, in its Findings of Fact and Conclusions of Law filed on December 13, 2010, found that A.P, could not or should not be placed with appellant within a reasonable
{¶63} Appellant now raises the following assignments of error on appeal:
{¶64} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION OF FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES FOR PERMANENT CUSTODY OF THE MINOR CHILD A.P. AS THE STATE OF OHIO FAILED TO ESTABLISH THE JURISDICTIONAL PREREQUISITES FOR A GRANT OF PERMANENT CUSTODY AS SET FORTH IN
{¶65} “II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT GRANTED THE MOTION OF FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF THE FACTS REQUIRED BY
{¶66} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT REASONABLE EFFORTS NEED NOT BE EXPENDED TO REUNIFY THE APPELLANT WITH HIS MINOR CHILD PURSUANT TO
{¶67} “IV. FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES PRESENTED INSUFFICIENT EVIDENCE FOR THE COURT TO GRANT LEGAL CUSTODY PURSUANT TO
{¶68} Because appellant had addressed all of his assignments of error together, we shall do the same.
{¶69} Appellant, in his four assignments of error, argues that the trial court erred in terminating appellant‘s parental rights and granting permanent custody of A.P. to Fairfield County Child Protective Services. We disagree.
{¶70} A trial court‘s decision to grant permanent custody of a child must be supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear and convincing 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.” Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118; In re: Adoption of Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613.
{¶71} In reviewing whether the trial court based its decision upon clear and convincing evidence, “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.” State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60; See also, C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. If the trial court‘s judgment is “supported by some competent, credible evidence going to all the essential elements of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at 74.
{¶72} Moreover, “an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses
{¶73} “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.”
{¶74} Deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 1997-Ohio-260, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No. 04CA10, 2004-Ohio-3146; In re: C. W., Montgomery App. No. 20140, 2004-Ohio-2040.
{¶75}
{¶76} “(a) The child is not abandoned or orphaned, 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, 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
{¶77}
{¶78} “(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 parent to remedy the problem that initially caused the child to be placed outside the home, the parents have failed continuously and repeatedly to substantially remedy the conditions that caused the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied the 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;* * *...
{¶79} “(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or
{¶80} “(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child...
{¶81} “(16) Any other factor the court considers relevant.”
{¶82} The trial court, in the case sub judice, found that appellant had failed repeatedly and continuously to substantially remedy the conditions causing A.P. to be placed outside the home and also found that A.P. could not and should not be placed with appellant within a reasonable time. Appellant‘s case plan in this case required him to submit to random drug/alcohol screens and to obtain counseling for drug/alcohol issues. Appellant, who denied having a substance abuse problem has been arrested twice for drunk driving and has missed numerous random screens for drugs and/or alcohol. Testimony also was adduced that appellant was inconsistent with his counseling and with his visitation with A.P. and, although required to maintain employment as part of his case plan, refused to look for employment other than as an electrician. As noted by the trial court, the only time since June of 2008 when appellant had attended counseling on a more or less consistent basis was in August and September of 2010.
{¶83} The trial court also found that appellant, due to his repeated incarcerations, could not provide care for A.P. As is stated above, testimony was adduced that appellant had been in jail five times since A.P.‘s birth and intentionally violated his probation so that he could finish his jail term. During such time he missed A.P.‘s first birthday. He was not paying child support for her.
{¶85} The next issue for determination is whether or not the trial court erred in finding that the A.P.‘s best interest would be served by terminating appellant‘s parental rights.
{¶86} In determining the best interest of the child at a permanent custody hearing,
{¶87} The Guardian Ad Litem indicated at the hearing that A.P. was doing well with her kinship provider and was thriving. While, as is stated above, A.P.‘s paternal grandfather testified that he and his wife were willing and able to take A.P., the Guardian Ad Litem, in her report, noted that the paternal grandparents had not visited with A.P. with any consistency. The Guardian further noted that she was unaware that the paternal grandparents had wanted custody of A.P. until right before the original trial date, which was in September of 2010. The Guardian Ad Litem indicated that she was
{¶88} Based on the foregoing, we find that the trial court did not err in finding that A.P.‘s best interest would be served by terminating appellant‘s parental rights.
{¶89} Appellant, in his third assignment of error, argues that the trial court erred when, in its April 23, 2009, Judgment Entry, it found that reasonable efforts need not be expended to reunify appellant with A.P. pursuant to
{¶90} Finally, appellant, in his fourth assignment of error, argues that the trial court erred in granting legal custody pursuant to
{¶91} “(3) Award legal custody of the child to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custodian in a complaint or motion filed prior to the dispositional hearing by any party to the proceedings...”
{¶93} In short, we find that the trial court‘s decision terminating appellant‘s parental rights and granting permanent custody of A.P. to Fairfield County Child Protective Services was not against the manifest weight of the evidence.
{¶94} Appellant‘s four assignments of error are, therefore, overruled.
{¶95} Accordingly, the judgment of the Fairfield County Court of Common Pleas, Juvenile Division, is affirmed.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
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JUDGES
JAE/d0323
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas, Juvenile Division, is affirmed.
Costs assessed to appellant.
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JUDGES