In re: [I.H. et al., D.H., Appellant]. In re: [R.J., D.H., Appellant].
from the Franklin County Court of Common Pleas, Division of
Domestic Relations, Juvenile Branch (C.P.C. Nos. 05JU-17209,
brief: William T. Cramer, for appellant.
brief: Robert J. McClaren, for appellee Franklin County
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
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
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
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 ...