COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60733, 60734 IN RE: AMANDA AND GINGER : CAPLINGER : : : : JOURNAL ENTRY : AND : OPINION : DATE OF ANNOUNCEMENT : JUNE 4, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Juvenile Court Division Case Nos. 8701470; 8701471 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For appellee: For appellant: DOROTHY F. REICHENBACH, ESQ. WENDY I. WILLS, ESQ. CUYAHOGA COUNTY DEPARTMENT 75 PUBLIC SQUARE BLDG. OF HUMAN SERVICES SUITE 1426 3955 Euclid Avenue CLEVELAND, OH 44113-2001 Cleveland, OH 44115 - 2 - JAMES D. SWEENEY, J. Tammy Caplinger ("appellant"), the natural mother of the two children at issue, Ginger (D.O.B. 10/22/82) and Amanda (D.O.B. 7/9/85), appeals from the judgment of the juvenile court awarding permanent custody of the children to the appellee, the Cuyahoga County Department of Human Services ("Human Services"). Both children were adjudged neglected and placed in the temporary custody of Human Services on October 9, 1987. Human Services moved for permanent custody on August 8, 1989. After a hearing on May 16 and May 17, 1990, the court granted said motion. By way of background, appellant lives with William Moore ("Moore") whom she considers her common-law husband. Moore is not the natural or adoptive father of either Ginger or Amanda. Ginger is the oldest of four children born to appellant. Amanda is the second oldest child. Jamie Lynn, appellant's third daughter, is also in foster care with permanent custody awarded to Human Services. Moore established paternity for Jamie Lynn and appellant is not appealing Jamie Lynn's permanent custody award. Steven, appellant's youngest child, currently resides with his parents, appellant and Moore. Ginger and Amanda were removed from their residence on Feb- ruary 8, 1987 following a telephone call to Human Services from their babysitter. Apparently concerned for the children's safety a call was made to Human Services. Appellant had told the - 3 - babysitter she would only be gone a couple of hours but returned a couple of days later. This incident followed previous Human Services' investigations of Ginger when she was diagnosed in June of 1986 as a "failure to thrive" child and when Human Services learned that in January of 1987 appellant and Ginger were hiding out at a neighbor's home, fearful that Moore would shoot them. An initial investigation of the family revealed that their home had lead-based paint on the walls and was filthy. Ginger had a bite mark and a large scratch on her arm. Ginger also had been vomiting for days and no one sought any medical care for her. Later, it was discovered that Ginger had been sexually molested by Moore. Appellant was then referred by a county welfare worker to a parenting program. She was to attend a meeting once per week. Appellant did not attend on a regular basis. In fact, her attendance record was poor. Moore rarely attended. Appellant was given approximately three years in which to comply with the comprehensive case plan in all aspects, including leaving the company of Moore. Appellant did not comply. Hence, Human Services instituted plans for permanent custody of Ginger, Amanda and even Jamie. - 4 - Ginger and Amanda are currently residing in different foster homes. Both families have expressed a desire to adopt the 1 children. Appellant assigns the following errors: I. THE RECORD FAILS TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTEREST OF THE CHILDREN TO HAVE PARENTAL RIGHTS TERMINATED AND PERMANENT CUSTODY AWARDED TO THE CUYAHOGA COUNTY DEPARTMENT OF HUMAN SERVICES, SOCIAL SERVICE DIVISION. II. THE RECORD FAILS TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT THE MOTHER CANNOT PROVIDE ADEQUATE PARENTAL CARE. I. AND II. In both assignments of error, appellant challenges the weight of the evidence. They will therefore be addressed togeth- er. In particular, appellant alleges that she can provide adequate parental care and it is in the best interests of Ginger and Amanda to have her parental rights restored. We do not agree. 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 court is best able to 1 Jamie has been in a foster home since she was three months old. Her foster parents have expressed an interest in adopting her as well. - 5 - 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 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's 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 Human Services, the trial court must properly apply R.C. 2151.414. That section 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), Cuyaho- ga App. Nos. 53933 and 53943, 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 - 6 - determines by clear and convincing evidence that permanent custody is in the "best interest of the child" and 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). In order to assess the "best interest of the child," the court considers, among other relevant information, the following 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 interrelationship 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 direct- ly 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 perma- nent 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 - 7 - 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 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 deter- mining whether the parents have substantially remedied those conditions, the court shall consid- er parental utilization of medical, psychiatric, psychological, and other social and rehabilita- tive servicesand material resources that were made available to the parents for the purpose of chang- ing 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 chemi- cal dependency of the parent makes the parent unable to provide an adequate permanent home for the child at the present time and in the foresee- able 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 commit- ment 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; ***" R.C. 2151.414(E). - 8 - Appellant relies on evidence that she and Ginger have bonded and that appellant now brings nutritional lunches to the children on her monthly visits. Hence, she contends her parental rights should not be terminated. Appellant also asserts that Amanda and Ginger, as siblings, should not be separated. The great weight of the evidence mandates an affirmance of the order for permanent custody with Human Services. The record reveals that appellant and Moore sporadically attended their scheduled meetings. Appellant attended the parenting class in 1987 only nine times out of a possible forty-four sessions. In 1988, appellant attended twenty-five sessions, but failed to show in October, November and December. Appellant attended once the entire year of 1989. In 1990, her attendance did not markedly improve. Moreover, appellant did not deny knowledge of Moore's sexual molestation of Ginger. It was strongly urged in individual counseling that appellant leave Moore in order to get her chil- dren back, but appellant admitted to complete dependence on Moore and stated she could not and would not leave him. Hence, Mary Lou Wilson, the social worker, ceased individual counseling and concluded that appellant was "not particularly interested in making any changes in the way she parents." (R. 118.) The social worker testified that appellant "would have trouble protecting the children" and it was clearly in the best interest of the girls to have them removed. (R. 118). - 9 - Another social worker, Cheryl Huckabee, testified that both appellant and Moore were to attend parenting classes, individual counseling sessions, and undergo psychological evaluations. Moore was to get a drug and alcohol assessment. Moore never went for a psychological evaluation. Appellant went for psychological testing; however, she attended these sporadically, either attend- ing late or cancelling. She was diagnosed with Borderline Personality Disorder, a serious personality disturbance. Her behavioral demeanor and style of interaction were "immature" and she exhibited idiosyncratic, bordering on the bizarre, responses to critical reality tests. (See Psychological Consultation of appellant at p. 2.) Appellant was found unable to cope directly with conflicts but more often created fantasies through which to "ignore the world." (See Psychological Consultation of appellant at p. 3.) Huckabee visited the residence once and found Moore sleeping on the couch with a gun ready at hand. Both Huckabee and Wilson concurred that the family environment is very unstable with no signs of progress. Moore and appellant are prone to vicious and violent arguments and act out many of their emotional and psycho- logical problems. Neither has indicated a willingness to change. In this case, the juvenile court properly considered a wide variety of factors in rendering its decision, and the childrens' best interest were properly given great weight. We conclude the trial court's decision that parental termination was in the best - 10 - interest of the children was supported by clear and convincing evidence. Accordingly, the juvenile court's finding that the appellant had not conformed to the requirements of the comprehensive case plan as of the date of the custody hearing is supported by competent, credible evidence. Further, the juvenile court's finding that returning the children to appellant would be con- trary to their best interests is supported by competent, credible evidence. Accordingly, appellant's assignments of error are overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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. NAHRA, P.J. CONCURS. KRUPANSKY, J., CONCURS IN JUDGMENT ONLY. JUDGE JAMES D. SWEENEY 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. .