IN RE: K.M., A Minor Child [APPEAL BY MOTHER]
No. 98545
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 20, 2012
2012-Ohio-6010
KATHLEEN ANN KEOUGH, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. AD 10913869
BEFORE: Keough, J., Blackmon, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 20, 2012
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Susan M. Walters
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4361 Fulton Parkway
Cleveland, Ohio 44144
{¶1} Appellant-mother (“appellant“), appeals from the judgment of the common pleas court, Juvenile Division, granting permanent custody of her minor child, K.M., to appellee, the Cuyahoga County Department of Children and Family Services (“CCDCFS“).1 For the reasons that follow, we affirm.
{¶2} Two days after K.M.‘s birth, CCDCFS requested and received an ex parte telephonic order of custody of the minor child. In August 2010, CCDCFS filed a complaint alleging neglect and dependency and requested a disposition and pre-disposition of temporary custody of K.M. Following a hearing, the triаl court granted conditional pre-dispositional custody to appellant‘s aunt. However, the following day, CCDCFS filed another motion for pre-dispositionаl custody and requested that custody be granted to CCDCFS. This request was granted following an emergency custody hearing.
{¶3} In September 2010, the trial court conducted a hеaring on whether K.M. should be adjudged neglected and dependent. Although appellant‘s counsel was present, appellant failed to appeаr without explanation. Following the hearing, K.M. was adjudicated neglected and dependent.
{¶5} When reviewing a trial court‘s judgment in child custody cases, the appropriate standard of rеview is whether the trial court abused its discretion. Masters v. Masters, 69 Ohio St.3d 83, 1994-Ohio-483, 630 N.E.2d 665. An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude was unreasonable, аrbitrary, or unconscionable. Miller v. Miller, 37 Ohio St.3d 71, 73, 523 N.E.2d 846 (1988). An appellate court must adhere to “every reasonable presumption in favor of the lower court‘s judgment and finding of fаcts.” In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240 (3d Dist.1994), quoting Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533.
{¶6} Where clear and convincing proof is required at trial, a reviewing court will examine the record to determine whether the trier of fact had sufficiеnt evidence before it to satisfy the requisite degree of proof. In re T.S., 8th Dist. No. 92816, 2009-Ohio-5496, ¶ 24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Judgments
{¶7} “Clear and convincing evidence is more than a mere рreponderance of the evidence; it is evidence sufficient to cause a trier of fact to develop a firm belief or conviction as tо the facts sought to be established.” T.S. at ¶ 24, citing In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).
{¶8}
{¶9} In this case, the trial court determined that the second prong of
{¶10} In finding that K.M. was abandoned, the trial court stated that, “[n]either parеnt had contact with the child between November 3, 2011 and May 3, 2012.”
{¶11} Apрellant argues that the trial court‘s finding of abandonment ignores the fact that appellant attempted to visit with K.M. in March 2012, however, was unable to due to the case worker being ill. While appellant may have attempted to visit K.M. in March 2012, appellant ignores the fact that this attempt was more than 120 after her last visit with K.M. in November 2011. Accordingly, this attempt occurred after her presumptive abandonment of the child was already complete. Moreover, and as CCDCFS points out, appellant failed to appear for scheduled visits in January and February 2012; thus, there is a question whether appellant would have appeared for the visit if one had been scheduled in March. We find that appellant‘s single attempt to contact the social worker to arrange a visit in March 2012 does not negate her
{¶12} Appellant also argues that her lack of transportation should have been considered by the trial court. Wе find her arguments unpersuasive because appellant never raised the issue of lack of transportation with the social worker until May 3, 2012. When appеllant attempted to cancel yet again this scheduled visit due to lack of transportation, the social worker provided the appellant with transportation so the visit could take place.
{¶13} Accordingly, even though appellant visited with K.M. in May 2012, the trial court‘s finding of abandonment was supported by comрetent and credible evidence where the evidence showed that no visitation occurred for 120 days. Accordingly, this finding of abandonment is sufficient to satisfy the second prong of
{¶14} Having determined that the trial court‘s decision in finding abandonment was not an abuse of discretion, we find that the second prong of
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this apрeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mаndate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, A.J., and SEAN C. GALLAGHER, J., CONCUR