[Cite as In re B.S.,

.]

COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: B.S. : JUDGES: : : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. : : Case No. 17CA020 : : : : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Probate and Juvenile Division case no. 14N198

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: February 14, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendants-Appellants:

SEAN WARNER DAVID M. HUNTER 164 E. Jackson St. 244 West Main St. Millersburg, OH 44654 Loudonville, OH 44842 Attorney for Thomas Miller

MONICA L. MIYASHITA P.O. Box 94 Orrville, OH 44667 Attorney for Opal Stevens Holmes County, Case No. 17CA020 2

Delaney, J.

{¶1} Defendant-appellant Opal Stevens (“Mother”) appeals from the September

22, 2017 Judgment Entries of the Holmes County Court of Common Pleas, Probate and

Juvenile Division, granting appellee Holmes County Department of Job and Family

Services, Children Services Division (“Agency”) permanent custody of her daughter I.S.

and her son B.S.1

FACTS AND PROCEDURAL HISTORY

{¶1} Mother has several children but relevant here are I.S., born October 25,

2010, and B.S., born September 19, 2012. I.S.’s biological father is not a party to the

instant case. Father of B.S. is Thomas Miller [“Father”].2 At the time this case arose,

Mother and Father lived with B.S. and his siblings I.S. and John Doe in Holmes County,

Ohio.

{¶2} On November 23, 2014, the Agency received a report that Mother threw a

sippy cup at B.S., yelled at him, and threatened to “cut his hands off” if he did not behave.

On December 8, 2014, the Agency filed a complaint alleging I.S. and B.S. to be neglected

and abused.

{¶3} B.S. and I.S. were found to be neglected as to Mother on March 3, 2015.

{¶4} A case plan was adopted and Mother was required to, e.g., complete

parenting classes; to obtain a psychological evaluation; to complete a domestic violence

1 Mother’s appeal of the decision as to I.S. is 5th Dist. Holmes No. 17CA019 and of the decision as to B.S. is 5th Dist. Holmes No. 17CA020. 2 Father appealed the trial court’s decision to grant permanent custody of B.S. to the

Agency in In the matter of B.S., 5th Dist. Holmes No. 17CA018. Holmes County, Case No. 17CA020 3

assessment; and to complete individual counseling and maintain housing and

employment.

{¶5} During a trauma assessment of I.S., Mother admitted she had “no bond”

with I.S. because an ultrasound during her pregnancy indicated I.S. was a boy but she

was in fact a girl. Mother admitted she found it difficult to bond with a girl and that it was

difficult for her to care for three children, citing time spent in the hospital with John Doe,

which took her away from I.S., who was three years old when John Doe was born.

{¶6} The assessor noted Mother had problems processing what she learned in

the parenting classes. When asked what ideas she took away from the parenting classes,

Mother could not explain strategies to be a better caregiver of her children.

{¶7} The Agency’s visitation coordinator testified about interaction with Mother

at visitation. Mother had limited engagement with B.S. and I.S. during visitation,

sometimes choosing to color by herself. Mother did not intervene in the children’s unruly

behavior, remaining seated and simply telling the children to stop. Mother sometimes

called the visitation coordinator back into the room to report that the children were not

listening to her. At least one visit with Mother was disruptive to the extent that the children

left the room and ran down the hall, and destroyed Agency property. The visits were

described over time as progressively worse.

{¶8} Mother’s psychological evaluation indicated she is at risk for physical abuse

and neglect of her children, concluding that her visitation should be limited and

supervised. The evaluator noted that Mother’s lowered borderline intellectual capacity

makes it difficult for her to complete a case plan and the prognosis for positive change is Holmes County, Case No. 17CA020 4

poor. (The trial court did note that at the time of the evidentiary hearing this evaluation

was two years and one month old, and such results are considered valid for two years.)

{¶9} The children were found to be negatively impacted by interaction with

Mother and Father. Mother was described as indifferent toward the children.

{¶10} I.S.’ trauma assessment indicated she experienced increased behavioral

issues when she visited with Mother but those issues dissipated almost immediately when

visitation was suspended. I.S. exhibited anxiety surrounding visitation with Mother,

exacerbated by Mother’s vacillation between ignoring I.S. and expressing frustration

toward her.

{¶11} B.S. exhibited behavioral issues and was also assessed for trauma. It was

determined that he has been a victim of and a witness to domestic violence perpetrated

by Father and Mother. B.S. stated he does not feel safe with Mother and Father. Mother

acknowledged that she may have slapped B.S. to a caseworker.

{¶12} The family’s ongoing caseworker acknowledged Mother completed her

case plan services, but the caseworker opined there was no reduction in risk to the

children. The caseworker discussed this conclusion with Mother in June 2017 and was

met with defiance, denial, and confusion. Mother never expressed any concern about

I.S. and B.S. or asked how they were doing. The caseworker agreed with other witnesses

that Mother did not engage with the children during visitation and did not have positive

interaction with them.

{¶13} Ultimately, the caseworker acknowledged both parents worked hard toward

completing their case plans but did not prove themselves capable of retaining what they Holmes County, Case No. 17CA020 5

were taught. She saw no increase in positive interaction between Mother, I.S., and B.S.

during the course of the case plan.

{¶14} At the time of the evidentiary hearing, the Agency had maintained

temporary custody of I.S. and B.S. for 32 months, and Mother had not visited the children

for 16 months of that time period.

{¶15} I.S. and B.S. were in the temporary custody of the Agency and placed with

the same foster family for 21 months when the Agency moved for permanent custody of

both siblings on September 15, 2016. The basis of the motion for permanent custody

was the fact that the children were in the custody of the Agency for more than 12 months

of a consecutive 22-month period.

{¶16} An evidentiary hearing was held in late June, 2017. On September 22,

2017, the trial court awarded permanent custody of B.S. and I.S. to the Agency.

{¶17} Mother now appeals from the trial court’s decision granting permanent

custody of I.S. and B.S. to the Agency.

{¶18} Mother raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶19} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING INTO

EVIDENCE A VIDEOTAPE PURPORTED TO DEPICT A TYPICAL VISIT IN

CONTRAVENTION OF RULE 403 OF THE OHIO RULES OF EVIDENCE AND

WITHOUT AUTHENTICATION PURSUANT TO RULE 901 OF THE OHIO RULES OF

EVIDENCE.”

{¶20} “II. THE TRIAL COURT’S JUDGMENT THAT IT WAS NOT IN THE BEST

INTERESTS OF THE MINOR CHILDREN TO BE PLACED WITH [MOTHER] WAS Holmes County, Case No. 17CA020 6

AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE

PRESENTED TO THE COURT.”

ANALYSIS

I.

{¶21} In her first assignment of error, Mother argues the trial court erred in

admitting the Agency’s Exhibit E, a videotape of visitation between Mother and the

children, into evidence. We disagree.

{¶22} At the evidentiary hearing, Nakesha Henderson, the Agency visitation

coordinator, testified about supervised visitation between Mother and the children. While

not all visitation is video-recorded, the Agency has the capability to do so and each

visitation room contains a monitor which can record the visitation onto a drive which may

be burned onto a CD or USB drive. Henderson acknowledged she did not personally

download or burn the CD recording, but she was able to identify the parties on the

recording because she personally observed the visitation as it occurred (T. 95-96).

{¶23} Mother objected to the showing of the video as follows:

* * * *.

[MOTHER’S COUNSEL]: Your Honor, I’m going to object to

this, uh, DVD being played. My client has had many, many visits

with the children. The—by the witness’ own testimony, sometimes

they kept the recording, sometimes they recorded, sometimes they

didn’t.

THE COURT: Right. Holmes County, Case No. 17CA020 7

[MOTHER’S COUNSEL]: Uh, they’re using, apparently, one

video to prove their entire point, and I, uh, don’t think that the agency

should be able to pick through all these recordings that we have not

had the opportunity to see as attorneys, and choose what portion of

those recordings they want shown to the Court.

* * * *.

[AGENCY COUNSEL]: Thank you. We provided more than

just this visit, Your Honor, uh, in discovery. So they’re free to play

other visits. Uh, but these are the ones, uh, that were recorded and

were produced. Uh, and I plan to ask—all of this is—I only plan to

show one visit just for the, uh, economy’s sake and not, you know,

duplicating evidence. But I do have questions about this, uh,

particular visit relative to other visits that she’s seen.

[MOTHER’S COUNSEL]: And to be clear, Your Honor, I have

received recorded, uh, supervised visits from March 31st, May 4th,

May 18th, and June 2nd. There’s a whole lot more visits that

occurred besides those four dates.

* * * *.

T. 97.

{¶24} The Court asked Mother’s counsel for her specific legal objection to

introduction of the exhibit, and she responded that the exhibit was not representative of

the visits in general. The trial court overruled the objection, noting Mother could show

other videos in her case if she chose to do so (T. 98). Holmes County, Case No. 17CA020 8

{¶25} The Agency then explained 24 minutes of a two-hour visit would be shown,

and Mother reserved the right to cross-examine on the entire video consisting of

ostensibly two hours. The video depicts visitation on June 2nd and includes Mother, B.S.,

I.S., and John Doe. As Henderson described, the visitation was cut short because it was

so chaotic that Mother and Agency staff decided to terminate the visit and try again

another time. B.S. and John Doe left the visitation room and were returned by Agency

staff. Henderson testified that she intervened several times but Mother remained

“stationary” throughout the visit, and that this in one of the worst mother-child interactions

she’s observed in her role overseeing “thousands” of visits.

{¶26} Mother’s counsel then cross-examined Henderson about the content of the

video and established the visitation last about an hour before it was cut short.

{¶27} On appeal, Mother first argues that admission of the video violates Evid.R.

403(A), which provides that otherwise relevant evidence is inadmissible “if its probative

value is substantially outweighed by the danger of unfair prejudice[.]” A trial court's

determination that evidence is admissible under Evid.R. 403 will not be disturbed on

appeal absent an abuse of the trial court's discretion. State v. Allen,

,

(1995). An abuse of discretion connotes action by the trial court that

is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶28} In the instant case, video of the supervised interaction between Mother and

her children, while not favorable to Mother, was wholly relevant to the proceedings.

“Relevant evidence of one's inability to parent a child is almost always prejudicial in a

permanent custody case, but a danger of ‘unfair prejudice’ is required for relevant Holmes County, Case No. 17CA020 9

evidence to be inadmissible under Evid.R. 403(A).” In re J.T., 10th Dist. Franklin No.

11AP-1056,

, ¶ 31. Mother does not explain why the evidence was

unfairly prejudicial, and we find nothing to support such a claim.

There is no indication

that the danger of unfair prejudice substantially outweighed the probative value of the

videotape. Accordingly, the trial court did not abuse its discretion. See, In re Woodruff,

9th Dist. Wayne No. 97-0057,

, *5 [challenged evidence clearly relevant

to resolution of motion for permanent custody]; In re Pernell C., 6th Dist. Lucas No. L-04-

1007,

[challenged evidence probative of Agency’s concerns and

does not outweigh prejudice to mother].

{¶29} Mother argues Exhibit E showed only a portion of visitation with B.S. and

I.S., but as the trial court pointed out, Mother could have introduced more favorable video

evidence during her own case.

{¶30} Mother also cites Evid.R. 901(A), which states, “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent

claims.” Authentication of the videotape was not argued before the trial court, and on

appeal Mother fails to point out any defect as to what was depicted in the footage. See,

State v. Pickens,

,

,

, reconsideration

denied,

,

,

, and cert. denied,

,

(2015).

{¶31} Moreover, the “threshold requirement for authentication of evidence is low

and does not require conclusive proof of authenticity.” State v. Freeze, 12th Dist. Butler

No. CA2011–11–209, 2012–Ohio–5840, ¶ 65, citing State v. Easter,

, Holmes County, Case No. 17CA020 10

25 (4th Dist. 1991). Rather, “the state only needs to demonstrate a ‘reasonable likelihood’

that the evidence is authentic.”

Either circumstantial evidence or direct evidence may

be used to prove the authenticity of evidence. State v. Vermillion, 4th Dist. Allen No.

15CA17, 2016–Ohio–1295, ¶ 14. Testimony of a witness with knowledge that the “matter

is what it is claimed to be” is sufficient to properly authenticate an item pursuant to Evid.R.

901(A). In this case, authentication was provided by Henderson’s testimony that the

videotape of the visit is what it was claimed to be, and Mother fails to point to any

indication of a failure of authenticity.

{¶32} We further note Exhibit E is contained in the appellate record and we have

reviewed it, along with the other exhibits admitted in the case. We find the trial court did

not abuse its discretion in admitting Exhibit E.

{¶33} Mother’s first assignment of error is overruled.

II.

{¶34} In her second assignment of error, Mother argues the trial court’s decision

to grant permanent custody of I.S. and B.S. to the Agency is against the manifest weight

and sufficiency of the evidence. We disagree.

{¶35} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray,

,

(1990), quoting Stanley v. Illinois,

,

,

(1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing

evidence is that evidence “which will provide in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford,

,

(1954). “Where the degree of proof required to sustain an issue Holmes County, Case No. 17CA020 11

must be clear and convincing, 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.” Id. at 477,

. If some competent, credible evidence going to all

the essential elements of the case supports the trial court's judgment, an appellate court

must affirm the judgment and not substitute its judgment for that of the trial court. C.E.

Morris Co. v. Foley Constr. Co.,

,

(1978).

{¶36} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland,

,

(1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger,

,

(1997).

{¶37} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency.

{¶38} Pursuant to R.C. 2151.414(B)(1), the trial court may grant permanent

custody of a child to a movant if the court determines at the hearing, 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:

(a) The child is not abandoned or orphaned, has not been in

the temporary custody of one or more public children services Holmes County, Case No. 17CA020 12

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 twenty-two-month period if, as described in division

(D)(1) of section 2151.413 of the Revised Code, the child was

previously in the temporary custody of an equivalent agency in

another state, 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.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the

child who are able to take permanent custody.

(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, or 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 and, as described in division (D)(1) of section 2151.413

of the Revised Code, the child was previously in the temporary

custody of an equivalent agency in another state. Holmes County, Case No. 17CA020 13

(e) The child or another child in the custody of the parent or

parents from whose custody the child has been removed has been

adjudicated an abused, neglected, or dependent child on three

separate occasions by any court in this state or another state. * * * *.

{¶39} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, a trial court

will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (e) is present before proceeding to a determination regarding

the best interest of the child.

R.C. 2151.414(B)(1)(d)

{¶40} In the instant case, the trial court first considered the best interests of I.S.

and B.S., which we shall address infra.

{¶41} The trial court also concluded, however, that R.C. 2151.414(B)(1)(d) applies

to I.S. and B.S., to wit, the children were in the temporary custody of the Agency for twelve

or more months of a consecutive twenty-two-month period.3 The children were placed in

the temporary custody of the Agency on December 8, 2014, and temporary custody

remained with the Agency continually until the evidentiary hearing at the end of June

2017, a period of thirty months.

{¶42} Mother argues the trial court failed to consider all of the statutory factors

because the trial court did not make findings pursuant to R.C. 2151.414(E), but the trial

court was not required to do so because R.C. 2151.414(B)(1)(a) is an alternate finding

3R.C. 2151.414(B)(1)(b) also applies to I.S. with respect to her biological father, who is not a party to the instant case. Holmes County, Case No. 17CA020 14

under R.C. 2151.414(B)(1). Instead, as noted above, the trial court made its finding

pursuant to R.C. 2151.414(B)(1)(d).

{¶43} Mother does not challenge the trial court's finding under R.C.

2151.414(B)(1)(d). Findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d)

are alternative findings, and each is independently sufficient to use as a basis to grant the

Agency's motion for permanent custody. In re Langford, 5th Dist. Stark No.

2004CA00349,

, citing In re Whipple Children, 5th Dist. Stark No.

2002CA00406, 2003–Ohio–1101, ¶ 26; see also, In re Celano, 5th Dist. Stark No. 2007

CA 00141,

. Upon review, we agree with the trial court's finding that R.C.

2151.414(B)(1)(d) is applicable to the facts of this case.

{¶44} Mother does not set forth an argument pertaining to the trial court's finding

under R.C. 2151.414(B)(1)(d), and we therefore conclude the trial court's finding is not

against the manifest weight or sufficiency of the evidence.

.

Best Interests of I.S. and B.S.

{¶45} Pursuant to R.C. 2151.414(D)(1), in determining the best interest of a child

in a permanent custody proceedings, the court shall consider all relevant factors,

including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the

child's parents, siblings, relatives, foster caregivers and out-of-home

providers, and any other person who may significantly affect the

child; Holmes County, Case No. 17CA020 15

(b) 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;

(c) The custodial history of the child, including whether the

child has been in the temporary custody of one or more public

children services agencies * * * for twelve or more months of a

consecutive twenty-two-month period * * * * ;

(d) 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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child. * * * *.

{¶46} The trial court noted the lack of a bond between Mother and her children as

evidenced by the visitation issues. Despite her completion of her case plan, Mother did

not reduce the risk of abuse and neglect to her children.

{¶47} B.S. and I.S. were placed together in the same foster home and have a

normal sibling relationship with each other for their stage of development. They are

closely bonded to each other and to their foster family. The foster family would like to

adopt both siblings if possible.

{¶48} The guardian ad litem concluded it was in the best interest of both children

to grant permanent custody to the Agency, acknowledging both parents completed their

case plans but the children could not safely be returned to their care. Holmes County, Case No. 17CA020 16

{¶49} As noted supra, at the time of the evidentiary hearing I.S. and B.S. had been

in the temporary custody of the Agency for over 30 months.

{¶50} I.S. and B.S. need and deserve legally secure permanent placement, which

they would find upon an award of permanent custody to the Agency resulting in possible

adoption. The record is devoid of any other option short of permanent custody which

would achieve this result. No family members have come forward seeking placement of

the children, and we agree with the trial court that neither biological parent will be able to

provide a legally secure permanent placement. The parents were unable throughout the

30-month period of temporary custody to sufficiently remedy the conditions which led to

removal of the children.

{¶51} While Mother points out she has successfully followed her case plan, the

evidence of her intellectual capacity supports the conclusion that she will not be able to

apply what she has learned, and her intellectual capacity is not a factor which will change.

We agree that the evidence demonstrates that any harm of severing the parental bond is

outweighed by the benefits of permanency. The record further demonstrates that the

risks to the children which required their removal have not been alleviated.

{¶52} Upon this record, we find the trial court's decision that it was in the best

interests of I.S. and B.S. to be placed in the permanent custody of the Agency is

supported by clear and convincing evidence and is not against the manifest weight of the

evidence.

{¶53} Mother’s second assignment of error is overruled. Holmes County, Case No. 17CA020 17

CONCLUSION

{¶54} Mother’s two assignments of error are overruled and the judgment of the

Holmes County Court of Common Pleas, Probate and Juvenile Divisions is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.