[Cite as In re Z.D.,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

Z.D. Case No. 12 CA 29

DEPENDENT CHILD OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 10 DEP 181

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 14, 2012

APPEARANCES:

For Appellant Father For Appellee

JOHN C. O'DONNELL EDITH A. GILLILAND 13 Park Avenue West RICHLAND CTY. CHILDREN SERVICES Mansfield, Ohio 44902 731 Scholl Road Mansfield, Ohio 44907 For CASA

RANDALL E. FRY 20 West Newlon Place Mansfield, Ohio 44902 Richland County, Case No. 12 CA 29 2

Wise, J.

{¶1} Appellant Christopher Brown appeals the decision of the Court of

Common Pleas, Richland County, which granted permanent custody of his daughter to

Appellee Richland County Children Services (“RCCS”). The relevant facts leading to

this appeal are as follows.

{¶2} The child at the center of this case is Z.D., born to Nicole Davis and

Christopher Brown in December 2009. At birth, Z.D. tested positive for THC in her

system. Nicole voluntarily placed Z.D. with relatives upon the baby’s release from the

hospital, and, in May 2010, voluntarily placed her with a cousin, Ashanti Ginn. The child

has been in the immediate care of Ms. Ginn since that time. Ginn is thirty-one years old,

holds a master’s degree, and is employed as a social worker with the Salvation Army.

She has also obtained her “foster-to-adopt” certification. See Tr. at 75, 165, 227.

{¶3} On July 30, 2010, RCCS filed a complaint in the trial court alleging that

Z.D. was a dependent and/or abused child. Following an adjudicatory hearing, the trial

court found Z.D. to be dependent and awarded temporary custody of the child to

Ashanti Ginn, with protective supervision granted to RCCS.

{¶4} On June 17, 2011, RCCS filed a dispositional motion asking that legal

custody be awarded to Ms. Ginn. However, on July 25, 2011, the CASA/Guardian Ad

Litem, Sharon Pace, filed a dispositional motion seeking permanent custody to RCCS,

even though the agency maintained its position before the trial court that legal custody

should be awarded to Ginn.1 See, e.g., Tr. at 274-275.

1 The prosecution of a GAL-initiated permanent custody motion contrary to a children services agency’s dispositional plan is, in this Court’s memory, an unusual procedural scenario. However, the Ohio Supreme Court, in In re C.T.,

, 2008– Richland County, Case No. 12 CA 29 3

{¶5} An evidentiary hearing on the permanent custody motion was conducted

on December 2, 2011. On December 29, 2011, the magistrate issued a decision

awarding permanent custody of Z.D. to RCCS, which will presumably lead to a future

adoption by Ashanti Ginn. Each parent thereafter filed objections to the decision, which

the trial court denied on March 30, 2012.

{¶6} Appellant Brown filed a notice of appeal on April 11, 2012. He herein

raises the following three Assignments of Error:

{¶7} “I. [THE] TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

FAILING TO GRANT [A] CONTINUANCE OF THE PERMANENT CUSTODY

HEARING.

{¶8} “II. [THE] TRIAL COURT’S CONCLUSION THAT PERMANENT

CUSTODY WAS WARRANTED IS NOT SUPPORTED BY CLEAR AND CONVINCING

EVIDENCE.

{¶9} “III. [THE] TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

FAILING TO GRANT THE MOTION OF CHILDREN SERVICES FOR LEGAL

CUSTODY [TO ASHANTI GINN].”

Ohio–4570, syllabus, held that “[a] guardian ad litem has authority under R.C. 2151.281(I) and 2151.415(F) to file and prosecute a motion to terminate parental rights and award permanent custody in a child welfare case.” We note that in a concurring opinion in In re: A.T., Wayne App.No. 11CA0024,

, Judge Carr of the Ninth District Court of Appeals stated she was “troubled by a procedure that allows a party to attempt to compel CSB to assume permanent custody of a child.” In the case sub judice, we likewise express some concern that in this scenario, under the present law in Ohio, RCCS has effectively been forced to advocate on appeal in support of a permanent custody disposition it did not originally seek. Richland County, Case No. 12 CA 29 4

I.

{¶10} In his First Assignment of Error, appellant contends the trial court

committed reversible error in denying his motion to continue the permanent custody

hearing. We disagree.

{¶11} A litigant does not have a right to unreasonably delay a trial. See Hartt v.

Munobe (1993),

, 1993–Ohio–177. The grant or denial of a

continuance is a matter entrusted to the broad, sound discretion of the trial court.

Polaris Ventures IV, Ltd. v. Silverman, Delaware App.No.2005 CAE 11 0080, 2006–

Ohio–4138, ¶ 14, citing State v. Unger (1981),

,

. In

order to find an abuse of discretion, we must find the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983),

,

.

{¶12} In determining whether a trial court abused its discretion in denying a

motion for a continuance, an appellate court should consider the following factors: (1)

the length of the delay requested; (2) whether other continuances have been requested

and received; (3) the inconveniences to witnesses, opposing counsel and the court; (4)

whether there is a legitimate reason for the continuance; (5) whether the defendant

contributed to the circumstances giving rise to the need for the continuance; and other

relevant factors, depending on the unique facts of each case. In re P.T., Stark App.No.

2011CA00200,

, citing Unger at 67–68,

; State v.

Holmes (1987),

, 47–48,

.

{¶13} In support of his claim, appellant notes that he is incarcerated for an

unspecified “extended period of time” and that the mother, Nicole Davis, allegedly did Richland County, Case No. 12 CA 29 5

not attend the permanent custody hearing because of a death in her family. Appellant’s

Brief at 4. According to Ms. Ginn’s testimony, appellant is serving an eighteen-to-life

sentence for murder. Tr. at 166. Appellant provides no further details regarding either of

these stated reasons for the parents’ non-attendance, although the record indicates that

appellant and Nicole each had trial counsel present. Clearly, “ *** lengthy delays were

not within the intent of the legislature when it shortened the permanent custody time

frames [under R.C. 2151.414].” In re: K.G., Wayne App.Nos. 03CA0066, 03CA0067,

03CA0068,

. Upon review of the record in light of the guidelines

set forth in

we find no abuse of discretion in the trial court’s denial of

appellant’s request to continue the permanent custody hearing.

{¶14} Appellant’s First Assignment of Error is overruled.

II.

{¶15} In his Second Assignment of Error, appellant maintains the grant of

permanent custody to RCCS was not supported by the evidence. We disagree.

{¶16} 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 his or

her 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 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),

,

. 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 Richland County, Case No. 12 CA 29 6

App.No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St .2d

230,

.

{¶17} 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:

{¶18} “(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,

* * * 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.

{¶19} “(b) The child is abandoned.

{¶20} “(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

{¶21} “(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 * * *.”

{¶22} 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 Richland County, Case No. 12 CA 29 7

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. In determining whether the parents have substantially remedied those

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.” See R.C. 2151.414(E)(1).

{¶23} At the permanent custody hearing on December 2, 2011, the caseworker,

Jennifer Hissom, testified that she did not have concerns about Nicole continuing a

relationship with Z.D. Tr. at 65. However, Hissom noted that Nicole had maintained no

contact with the child since December 2010, nearly a full year prior to the hearing. Id.

Hissom explained that Nicole “ *** stated that she um just feels that she knows that

Ashanti [Ginn] is doing a very good job and, well, yes, that she doesn’t want to interfere

with anything.” Tr. at 66-67. Thus, while RCCS did not have some of the serious

concerns about the mother’s habits and parenting abilities as are often seen in

permanent custody cases, in this instance the trial court determined that Nicole had

abandoned Z.D. (see R.C. 2151.414(E)(10)) and that appellant had been incarcerated

throughout the duration of the case and would remain incarcerated for eighteen more

years (see R.C. 2151.414(E)(12)). See Magistrate’s Decision at 4.

{¶24} Upon review, we hold the trial court did not err in determining that Z.D.

could not be placed with appellant or Nicole within a reasonable time or should not be Richland County, Case No. 12 CA 29 8

placed with appellant or Nicole. See R.C. 2151.414(B)(1)(a). Furthermore, the trial court

could have properly relied on the factor of abandonment under R.C. 2151.414(B)(1)(b),

based on the evidence presented. See R.C. 2151.011(C) (setting forth a ninety-day rule

for the definition of abandonment in this context).

{¶25} In regard to the best interest issue, we first note 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),

,

.

{¶26} In determining the best interest of a child for purposes of permanent

custody disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D). These factors are as follows:

{¶27} “(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;

{¶28} “(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;

{¶29} “(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 * * *; Richland County, Case No. 12 CA 29 9

{¶30} “(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;

{¶31} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

{¶32} Again, while the caseworker, Ms. Hissom, took the position that Nicole

could maintain a relationship with Z.D. (Tr. at 67), the guardian ad litem, Sharon Pace,

essentially opined against merely granting legal custody to Ms. Ginn over concerns that,

in addition to appellant’s long-term incarceration, Nicole’s ongoing instability would be

an issue without permanent custody to the agency. Pace testified that “the mother has

had every opportunity to visit this child and be a parent to it, to her, and she has not

done that.” Tr. at 224. Pace felt that Nicole had thus “effectively abandoned” Z.D.

Thus, as the trial court recognized, Z.D. has no familiarity or relationship with appellant

or Nicole for purposes of R.C. 2151.414(D)(1). Pace observed that Z.D. had bonded

with Ginn and that she was thriving in that environment. Tr. at 226. Pace further stated

that with a permanent custody order, Z.D. “will have a permanent mother, not one that is

gonna [sic] bounce in and out of her life ***.”

{¶33} “ *** [A] juvenile court's disposition of legal custody to a relative is different

from permanent custody to a children services agency because, among other things, it

does not terminate parental rights but instead leaves intact residual parental rights,

privileges, and responsibilities.” In re: N.P., Summit App.No. 21707,

(additional citations and internal quotations omitted). In the case sub judice, upon

review of the record and the findings and conclusions therein, we conclude the trial Richland County, Case No. 12 CA 29 10

court's judgment granting permanent custody of Z.D. to the agency and terminating

appellant’s and Nicole’s residual parental rights was made in the consideration of the

child's best interest and did not constitute an error or an abuse of discretion under the

circumstances presented.

{¶34} Appellant's Second Assignment of Error is overruled.

III.

{¶35} In his Third Assignment of Error, appellant contends the trial court’s denial

of the request by RCCS to grant legal custody of Z.D. to Ashanti Ginn was not

supported by the evidence. We disagree.

{¶36} R.C. 2151.353(A) states in pertinent part: “If a child is adjudicated an

abused, neglected, or dependent child, the court may make any of the following orders

of disposition:

{¶37} “ * * *

{¶38} “(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. * * *.”

{¶39} A juvenile court's standard of review in legal custody proceedings is by the

preponderance of the evidence. In re Nice (2001),

. Some

Ohio courts have recognized that “the statutory best interest test designed for the

permanent custody situation [see R.C. 2151.414(D), supra] may provide some

‘guidance’ for trial courts making legal custody decisions.” See In re A.F., Summit Richland County, Case No. 12 CA 29 11

App.No. 24317, 2009–Ohio–333, ¶ 7, citing In re T.A., Summit App.No. 22954, 2006–

Ohio–4468, ¶ 17.

{¶40} Furthermore, because custody issues are some of the most difficult and

agonizing decisions a trial judge must make, he or she must have wide latitude in

considering all the evidence and such a decision must not be reversed absent an abuse

of discretion. Davis v. Flickinger (1997),

,

,

citing Miller v. Miller (1988),

,

. The Ohio Supreme

Court has also explained: “A reviewing court should not reverse a decision simply

because it holds a different opinion concerning the credibility of the witnesses and

evidence submitted before the trial court. A finding of an error in law is a legitimate

ground for reversal, but a difference of opinion on credibility of witnesses and evidence

is not.” Seasons Coal Co. v. Cleveland (1984),

,

.

Likewise, “[e]very reasonable presumption must be made in favor of the judgment and

the findings [of the juvenile court]. * * * If the evidence is susceptible to more than one

construction, we must give it that interpretation which is consistent with the verdict and

judgment, and most favorable to sustaining the [juvenile] court's verdict and judgment.”

In re: MB, Summit App.No. 21812, 2004–Ohio–2666, ¶ 6, citing Karches v. Cincinnati

(1988),

,

. It is well established that the fact finder is

free to believe all, part, or none of the testimony of each witness. State v. Caldwell

(1992),

,

.

{¶41} In the case sub judice, as per our analysis in the above redress of

appellant’s Second Assignment of Error, we hold the trial court’s denial of the agency’s Richland County, Case No. 12 CA 29 12

motion for legal custody of Z.D. to Ashanti Ginn in lieu of permanent custody to the

agency was not erroneous or an abuse of discretion.

{¶42} Appellant’s Third Assignment of Error is overruled.

{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Richland County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

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JUDGES JWW/d 0731 Richland County, Case No. 12 CA 29 13

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : : Z.D. : JUDGMENT ENTRY : : DEPENDENT CHILD : Case No. 12 CA 29

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Richland County, Ohio, is

affirmed.

Costs assessed to appellant.

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JUDGES