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In re I.H.

Court of Appeals of Ohio, Tenth District

March 7, 2017

In re: [I.H. et al., D.H., Appellant]. In re: [R.J., D.H., Appellant].

         APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch (C.P.C. Nos. 05JU-17209, 13JU-14763)

          On brief: William T. Cramer, for appellant.

          On brief: Robert J. McClaren, for appellee Franklin County Children Services.

          DECISION

          BROWN, J.

         {¶ 1} D.H. ("father"), appellant, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the court granted the motion of Franklin County Children Services ("FCCS"), appellee, for permanent custody with regard to appellant's two children, I.H. and R. J.

         {¶ 2} Father and the children's mother, D.J. ("mother") have 12 children, although paternity has never been legally established between father and any of the children. At the time of the hearing, the six eldest children had aged out of foster care. Two children were placed into a permanent planned living arrangement. The four youngest children include two sons ("the sons"): Da.H., who was 15 years old at the time of the proceedings, and De.H., who was 13 years old at the time of the proceedings; and two daughters ("the daughters"): I.H., who was 12 years old at the time of the proceedings, and R.J., who was 9 years old at the time of the proceedings. The current matter involved the four youngest children, but the present appeal relates only to the two daughters, I.H. and R.J., given the trial court's decision to return the sons to appellant's custody.

         {¶ 3} Da.H. De.H., and I.H. entered foster care in December 2003. The children were found dependent and a temporary court commitment was granted to FCCS in March 2006. The children were returned to father's care in December 2006, and custody was awarded to father in August 2008. In late 2013, concerns arose regarding school attendance, lack of utilities, lack of food, poor hygiene, lack of supervision, father's drug use, and drug activity in the home. In October 2013, a complaint was filed with respect to R.J.

         {¶ 4} FCCS subsequently received temporary court commitment with regard to all four children in January 2014. A case plan for both parents was approved and adopted. The sons were placed in foster care together but were later placed into separate homes, while the daughters were placed in foster care together.

         {¶ 5} On July 15, 2015, FCCS filed motions for permanent custody with regard to the four children. A trial on the motions commenced in February 2016. Mother did not appear at the trial, but father appeared. On May 18, 2016, the trial court entered a judgment, ordering the sons be placed in father's custody, but granting permanent custody of the daughters to FCCS.

         {¶ 6} Father appeals the judgment of the trial court, asserting the following assignment of error:

The trial court's determination that appellant's parental rights should be terminated in regard to his youngest children is not supported by clear and convincing evidence.

         {¶ 7} Father argues in his assignment of error that the trial court's decision, with regard to the daughters, was not supported by clear and convincing evidence. R.C. 2151.414 governs the procedure for granting permanent custody of a child to an agency such as FCCS. Under R.C. 2151.414(B)(1), a trial court may grant permanent custody to an agency if the court determines by clear and convincing evidence that: (1) it is in the best interest of the child, and (2) one of the situations set forth in R.C. 2151.414(B)(1)(a) through (d) applies. Clear and convincing evidence is that measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and that will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

         {¶ 8} In determining whether the trial court's ruling on the permanent custody motion is against the manifest weight of the evidence, we must consider whether the evidence on each element of the agency's case satisfied or failed to satisfy the burden of persuasion, i.e., whether clear and convincing evidence supports each element. See Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-Ohio-4153, ¶ 11, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 19. A judgment supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Id. at ¶ 10, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. " 'The phrase "some competent, credible evidence" * * * presupposes evidentiary weighing by an appellate court to determine whether the evidence is competent and credible.' " (Emphasis sic.) Id., quoting Eastley at ¶ 15.

         {¶ 9} "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. * * * Weight is not a question of mathematics, but depends on [the evidence's] effect in inducing belief " (Emphasis omitted.) Eastley at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). "Thus, in reviewing a judgment under the manifest-weight standard, a court of appeals weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and ...


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