IN THE MATTER OF: J.H. J.H.
Case No. 10 CA 43
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 9, 2011
2011-Ohio-1077
Hоn. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
Dependent/Neglected Children; Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 09 JC 426
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 9, 2011
APPEARANCES:
For Appellant Terry Huey
MICHAEL GROH 919 Wheeling Avenue Cambridge, Ohio 43725
For Appellee Children Services Board
AMBER D. WOOTTON ASSISTANT PROSECUTOR 139 West 8th Street, P. O. Box 640 Cаmbridge, Ohio 43725
{¶1} Appellant-father Terry Huey appeals from the decision of the Guernsey County Court of Common Pleas, Juvenile Division, granting permanent custody of his sons, J.H. and J.H., to Appellee Guernsey County Children Services Board (“GCCSB“). The relevant facts leading to this appeal are as follows.
{¶2} In February 2009, Monica Anthrop gave birth to J.H. and J.H., twin boys. On May 26, 2009, Monica voluntarily relinquished physical custody of both sons to GCCSB, via a 30-day “Voluntary Agreement for Care.” The agreement was extended for thirty more days on June 24, 2009.
{¶3} On July 23, 2009, upon the request of GCCSB, the trial court granted temporary custody of J.H. and J.H. to the agency. The matter proceeded to an adjudicatory hearing on September 30, 2009, at which time the trial court found both boys to be neglected and dependent. At about this time, paternity testing confirmed that appellant was the father of the twin boys.
{¶4} On October 10, 2009, the trial court conducted a dispositional hearing and maintained temporary custody with the agency
{¶5} On March 25, 2010, GCCSB filed a motion for permanent custody.
{¶6} While the aforesaid court events were transpiring, appellant was in prison in Ohio for convictions of receiving stolen property and failing to comply with the order of a police officer. His period of incarceration ran from July 31, 2008 to July 17, 2010.1 There was also a new misdemeanor theft charge and two charges of operating a motor vehicle without a license pending against appellant after his July 2010 release.
{¶8} On November 8, 2010, 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 FATHER IN A REASONABLE AMOUNT OF TIME UNDER
{¶10} “II. THE TRIAL COURT ERRED IN FINDING THAT PERMANENT CUSTODY WAS IN THE BEST INTERESTS OF THE CHILDREN UNDER
{¶11} “III. THE TRIAL COURT ERRED IN FINDING THAT 2 FACTORS OF
I.
{¶12} In his First Assignment of Error, appellant challenges the trial court‘s conclusion that J.H. and J.H. could not be placed with him within a reasonable time or should not be placed with him.
{¶13} In the case sub judice, the trial court relied on
{¶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
{¶15} The crux of appellant‘s argument is that the trial court failed to set forth the existence of any factors under division (E) of
{¶16} “1. The father was incarcerated at the time of filing for permanent custody and will not be able to care for the child for at least 18 months after the filing of the motion for permanent custody.
{¶17} “2. The parents, both the father and the mother, are repeatedly incarcerated and that incarceration рrevents the parent from providing for the child.” Judgment Entry at 4.
{¶18} Although the trial court mistakenly indicated that the aforesaid factors were found in
{¶19} Appellant‘s First Assignment of Error is overruled.
{¶20} In his Third Assignment of Error, which we will address out of sequence, appellant contends the trial court erred in its application of
{¶21}
{¶22} ” *** If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposеs 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 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:
{¶23} ” ***
{¶24} “(12) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available tо care for the child for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing.
{¶25} “(13) The parent is repeatedly incarcerated, and the repeated incarсeration prevents the parent from providing care for the child.
{¶26} ” *** ”
{¶27} In assessing the applicability of
{¶28} Nonetheless, we are persuaded that the trial court‘s decision is still supported by its
{¶29} In his Second Assignment of Error, appellant contends the trial court erred in determining that permanent custody of J.H. and J.H. was in their best interests. We disagree.
{¶30} In determining the best interest of a child for purposes of a permanent custody disposition, the trial court is required to consider the factors contained in
{¶31} “(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;
{¶32} “(2) The wishes of the child, as expressed directly by thе child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
{¶33} “(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 * * *;
{¶34} “(4) The child‘s need for a legally secure permanent placement and whether that type of placemеnt can be achieved without a grant of permanent custody to the agency;
{¶35} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶36} 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
{¶37} In the case sub judice, although some of their recоmmendations changed as the case progressed, the guardian ad litem, the CASA advisor, and the GCCSB caseworker all ultimately recommended the granting of permanent custody to GCCSB. The CASA advisor also recounted that she had encountered repeated problems with making direct or telephone contact with appellant. The GCCSB caseworker testified that appellant has a girlfriend with whom he has had another child; however, the agency has had previous involvement with the girlfriend. At the time of the August 25, 2010 hearing, the caseworker also noted that appellant had no income and was “living off of the generosity of relatives.” Tr. at 30. According to the foster mother for J.H. and J.H., the
{¶38} Upon review of the record and the findings of fact and conclusions of law therein, we are not inclined to оverturn the decision of the trier of fact, and we conclude the grant of permanent custody of J.H. and J.H. was made in the consideration of the children‘s best interests and did not constitute an error or an abuse of discretion.
{¶39} Appellant‘s Second Assignment of Error is therefore overruled.
{¶40} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs separately.
JUDGES
JWW/d 0223
{¶41} I concur in the majority‘s analysis and dispositiоn of Appellant‘s three assignments of error.
{¶42} I write separately only with respect to the third assignment of error wherein the majority notes Appellant was facing an additional theft-related charge at the time of the рermanent custody proceedings. While accurate, I want to clarify I do not believe such pending charge should be considered in determining whether Appellant has been repeatedly incarcerated under
HON. WILLIAM B. HOFFMAN
IN THE MATTER OF: J.H. J.H.
Case No. 10 CA 43
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
Dependent/Neglected Children; JUDGMENT ENTRY
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