COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59462, 59463 KENNETH FLEMING and : NICOLE FLEMING : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION DEPT. OF HUMAN SERVICES : : Defendant-appellee : : DATE OF ANNOUNCEMENT : DECEMBER 12, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Juvenile Division Case Nos. 8207837 and 8207838 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: BARBARA L. JONES, ESQ. LYNNE STEWART, ESQ. 369 Front Street, Suite 3 Cuyahoga County Department of Berea, OH 44017 Human Services, Social Services 3955 Euclid Avenue Cleveland, OH 44115 - 2 - PATTON, J., Appellant Kenneth Fleming ("appellant") appeals the Court of Common Pleas, Juvenile Division order committing his son Kenneth Fleming, Jr. (d.o.b. April 18, 1979) and daughter Nicole Fleming (d.o.b. October 29, 1980) to the permanent care and custody of the appellee, Cuyahoga County Department of Human Services ("CCDHS"). The facts giving rise to the instant appeal are as follows: On September 24, 1982 the Cuyahoga County Juvenile Court found Kenneth and Nicole Fleming to be neglected and abused children and committed the children to the temporary custody of CCDHS following admissions by both parents to the allegations of neglect and abuse. The children's mother has abandoned them and has failed to make appearances in any of the subsequent proceedings. In July of 1984, CCDHS filed a motion for permanent custody. Following a hearing in July of 1985, the motion was denied due to appellant's participation in Alcoholics Anonymous and parenting education. At that time it was established that the appellant had enrolled in a weekly parenting class on October 27, 1982. From the time he initially enrolled through June of 1983, appellant attended nineteen out of thirty-one classes. He also attended parenting classes on October 26, November 2 and November 9, 1983. Following the court's denial of CCDHS's July, 1984 motion for permanent custody, Kenneth was returned to appellant's care - 3 - in August of 1985 and Nicole was returned in the early portion of l986. The children remained in appellant's care until their removal on August 2, 1988. On that date at approximately 8:30 a.m. an employee of the CCDHS discovered the children were left alone unsupervised. The children were removed from the home and temporary custody was granted to CCDHS. Subsequently, the children were placed in separate foster homes. A Reunification Plan was filed on March 15, 1989. The Plan required the appellant to: (1) demonstrate the ability to maintain a clean environment paying particular attention to the children's personal hygiene; (2) secure a responsible person to care for the children in his absence; (3) learn and use alternate methods of discipline, and; (4) remain active in Alcoholics Anonymous on a regular basis. The Plan also indicated appellant had been referred to counseling and parent education classes. Further, it provided for three hour unsupervised visitation periods with the children every two weeks. On July 14, 1989, CCDHS filed its motion for permanent custody of the children in the Juvenile Division of the Cuyahoga County Common Pleas Court. According to the affidavit in support of the motion, and the testimony at the hearing, the grounds for the motion were that the appellant had not followed through with parental education as outlined in the case plan; the appellant was still drinking and he had not made adequate strides to stop his involvement with alcohol; and that it was in the - 4 - best interest of the children to permanently terminate the parental rights and commit the children to the permanent custody of CCDHS. The appellant acknowledges he has abused alcohol in the past but maintains he has remained sober since 1986. He testified that he attends approximately four to five Alcoholics Anonymous meetings per week. In addition, he claims he did not attend any additional parenting classes following the removal of his children in August of 1988 because they would simply be a repeat of the parenting classes he attended in 1982 and 1983. On January 31, 1990, the Juvenile Court conducted a hearing on CCDHS's July 24, 1989 motion for permanent custody of the children. The court heard testimony from various social workers, the children, the appellant and appellant's live-in girlfriend. In its findings of fact and conclusions of law the court found that the children's return to the appellant's home would be contrary to the children's best interests and welfare. It further found that reasonable efforts were made to make it possible for the children to return to their home and that it was in the best interest of the children to grant permanent custody to the CCDHS. The court also found the children could not be placed with their parent within a reasonable time because the appellant had failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the children to be placed outside the home. - 5 - On February 8, 1990, the Juvenile Court granted CCDHS's motion for permanent custody of the children. The appellant filed a timely notice of appeal and raised the following assignment of error: I. THE TRIAL COURT'S DECISION TO PERMANENTLY DIVEST THE FATHER OF HIS PARENTAL RIGHTS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT (1) THE FATHER FAILED CONTINUOUSLY AND REPEATEDLY FOR A PERIOD OF SIX MONTHS OR MORE TO SUBSTANTIALLY REMEDY THE CONDITIONS CAUSING THE CHILDREN TO BE PLACED OUTSIDE THE HOME; AND (2) THAT THE CHILDREN'S RETURN TO THE HOME WOULD BE CONTRARY TO THEIR BEST INTEREST AND WELFARE. Appellant contends that the trial court's decision is against the weight of the evidence, and thus, it was not proven by clear and convincing evidence. It is fundamental that the weight of the evidence and the credibility of witnesses are primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. There is a presumption that the findings of the trier of fact are correct, since the trial judge is best able to view the witnesses and observe their demeanor when it weighs the credibility of the offered testimony. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 90. When addressing the issue of the weight of evidence, State v. Martin (1983), 20 Ohio App. 3d 172, sets forth the test to be utilized. The court, reviewing the entire record, weighs the evidence and all reasonable inferences therefrom, considers the - 6 - credibility of witnesses and determines whether in resolving conflicts in the evidence, the trial court's decision created such a manifest miscarriage of justice that it must be reversed. Id., at 175. This court cannot disturb a trial court decision which finds support from substantial credible evidence. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. In this case, in order for there to be sufficient evidence to support the trial court's decision to grant permanent custody of the children to the CCDHS, the trial court must properly apply R.C. 2151.414. R.C. 2151.414 sets forth the procedure that a juvenile court must follow when a county department that has temporary custody of the child files a motion to obtain permanent custody of that child. In re Cunningham (June 23, 1988), Cuyahoga App. Nos. 53943 and 53933, unreported. On motion for permanent custody, the court shall conduct a hearing to determine if it is in the "best interest of the child" to permanently terminate parental rights. R.C. 2151.414(A). Permanent custody may be granted to the movant if the court determines by clear and convincing evidence that permanent custody is in the "best interest of the child" and if the child is orphaned or abandoned, the child "cannot be placed with either of his parents within a reasonable time or should not be placed with his parents". R.C. 2151.414(B). The "best interest of the child" is determined by - 7 - considering the following factors but is not limited to these factors: (1) The reasonable probability of the child being adopted, whether an adoptive placement would positively benefit the child, and whether a grant of permanent custody would facilitate an adoption; (2) The interaction and interrelation- ship of the child with his parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (3) The wishes of the child, as expressed directly by the child or through his guardian ad litem, with due regard for the maturity of the child; (4) The custodial history of the child; (5) 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. R.C. 2151.414(D). The court then looks to the following factors to determine if the child should not be placed with either parent or cannot be so placed within a reasonable time. If any of these conditions exist and it is determined that it would be in the best interest of the child as set forth above, permanent custody should be awarded to the movant. "(1) Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parent to remedy the problems that initially caused the child to be placed outside the home, the parent has - 8 - failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his 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. "(2) The severe and chronic mental illness, severe and chronic emotional illness, severe mental retardation, severe physical disability, or chemical dependency of the parent makes the parent unable to provide an adequate permanent home for the child at the present time and in the foreseeable future; "(3) The parent committed any abuse as described in section 2151.031 [2151.03.1] of the Revised Code against the child, caused the child to suffer any neglect as described in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as described in section 2151.03 of the Revised code between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody; "(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child; "*** Moreover, the best interest of the child is the primary consideration in permanent custody cases. In re Cunningham (1979), 59 Ohio St. 2d 100, 106. - 9 - Initially, appellant maintains that the CCDHS failed to prove by clear and convincing evidence that the appellant failed continuously and repeatedly for a period of six months or more to remedy the conditions causing the children to be placed outside the home. In the instant case, the trial court conducted a full hearing and heard testimony concerning the appellant's failure to comply with the mandates of the March 15, 1989 Reunification Plan. The record fully demonstrates appellant's willful noncompliance with the plan. The evidence presented at trial showed that the appellant refused to attend parental education classes as outlined in the Reunification Plan. The appellant himself testified he had not attended any parenting classes since the children's removal of August 2, 1988. He expressed his opinion that he was not in need of further parenting classes and that any additional classes he attended would simply be a repeat of the classes he attended in 1982 and 1983. Appellant's opinion that he was not in need of further parenting classes is not supported by the fact he left his seven and nine year old children alone unattended and unsupervised. Further, both children testified at the hearing that the appellant was drinking during one of the scheduled visitation periods. The children's testimony directly contradicted the testimony of the appellant who insisted he has not had a drink since 1986. - 10 - Based on the above, we conclude, as did the trial court, that the appellant failed to fulfill his obligations under the Reunification Plan. We find that the evidence presented was clear and convincing that the appellant failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the children to be placed outside the home by his failure to comply with the Reunification Plan. Next, we will address the appellant's contention that the CCDHS failed to prove by clear and convincing evidence that the children's return to the home would be contrary to their best interest and welfare. After a scrupulous review of the record, we conclude the trial court's finding that it was in the children's best interest to permanently terminate appellant's parental rights was supported by competent, credible evidence. Kenneth Fleming, Jr. testified that his father was drinking when he was returned to appellant's care in August of 1985. He further testified that his father becomes angry when drinking and that he breaks things and hits people when under the influence of alcohol. While he was living with his father, Kenneth was subjected to repeated beatings. He is concerned that his father will start beating him again if he is returned to his father's care. He indicated his father has a bad temper and when he gets mad he goes crazy. Further, he testified he is happy living with his foster family and he desires to have no further contact with his father. - 11 - Nicole also testified that she does not want to live with her father because he hits her when he drinks. Also, her testimony revealed that when she lived with her father they would miss meals because he was drinking. Margaret Bond, a social case worker for the CCDHS testified she has witnessed verbal outbursts by the appellant on a number of occasions during the course of her interactions with the appellant. Further, the appellant refused to provide documentation of his attendance from Alcoholics Anonymous when requested to do so. She also testified that she would be concerned for the children's safety if and when they were returned to the care of the appellant. In this case, the Juvenile Court properly considered a wide variety of factors in rendering its decision, and the child's best interest were properly given great weight. Considering all the evidence presented, we conclude the trial court's decision that parental termination was in the best interest of the children was supported by clear and convincing evidence. We thus decline to reverse the trial court's decision. In summation, the Juvenile Court's finding that the appellant had not conformed to the requirements of the Reunification Plan as of the date of the custody hearing is supported by competent, credible evidence. Further, the Juvenile Court's finding that the children's return to the appellant would be contrary to their best interests is supported by competent, - 12 - credible evidence. Under these circumstances, we are not inclined to substitute our judgment for that of the trier of fact. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Juvenile Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J. JOHN F. CORRIGAN, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .