COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66376 IN THE MATTER OF : CENTURY HARRIS : : Plaintiff-appellee : : JOURNAL ENTRY : AND : OPINION DATE OF ANNOUNCEMENT OF DECISION: AUGUST 10, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Juvenile Court Division Case No. 91-13217 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: TODD J. MCKENNA, ESQ. DOROTHY F. RICHENBACH, ESQ. 55 Public Square, #1260 CUYAHOGA COUNTY DEPARTMENT OF Cleveland, Ohio 44113-1992 CHILDREN & FAMILY SERVICES 3955 Euclid Avenue Cleveland, Ohio 44115 Guardian Ad Litem: For Delphinia Walton: CHERYL A. ALIKHAN, ESQ. MICHAEL B. GRANITO, ESQ. P.O. Box 360382 640 Davidson Strongsville, Ohio 44136-0007 Cleveland, Ohio 44135 - 2 - DYKE, J.: Plaintiff-Appellant, Clyde Harris, appeals a judgment of the Court of Common Pleas, Juvenile Division, which granted long-term foster care of his minor daughter, Century, (D.O.B. 4/11/84) to Defendant-Appellee, The Cuyahoga County Department of Family and Children Services. In two assignments of error, appellant claims that the juvenile court was without jurisdiction to grant appellee's motion and that the court's ruling was unsupported by clear and convincing evidence. Upon review we find appellant's assignments of error to be without merit. The judgment of the juvenile court is affirmed. The instant action (Case No. 9113217) was initiated on September 23, 1991 when the Cuyahoga County Department of Human Services (CCDHS) filed a complaint for neglect and or abuse of Century Harris and prayed for temporary custody. At the time of the filing, Century was already in the emergency custody of the CCDHS pursuant to an August 19, 1991 Juvenile Court order issued in a separate paternity action filed against the appellant by the CCDHS and Century's mother, Delphinia Walton on March 20, 1987 (Case No. 8770515). A hearing was held in response to the instant complaint on October 30, 1991 at which time the court terminated the emergency custody it granted to the CCDHS in its August 19, 1991 order in the above-cited paternity case and granted emergency custody to the CCDHS in the instant dependency case. On December 18, 1991 the - 3 - court continued emergency custody in the CCDHS. (Memorandum Order, Journalized 2/21/91) On March 26, 1992 the court formally adjudged Century Harris dependent and granted temporary custody to the CCDHS, Social Services Division. (Memorandum Order, Journalized 5/19/92) On September 16, 1992 the court continued the temporary custody of Century in the Cuyahoga County Department of Children and Family Services, (CCDCFS) appellee herein, on its own motion and scheduled a hearing for March 18, 1993. (Memorandum Order, Journalized, 9/25/92) On February 24, 1993 appellee filed its motion for long-term foster care providing notice to the appellant on February 4, 1993. Appellant filed a motion to terminate temporary custody on March 11, 1993. On March 18, 1993 the court denied appellant's motion, held appellee's motion for foster care in abeyance, granted appellee's oral motion for a six-month extension of temporary custody and scheduled a hearing for September 2, 1993. (Memorandum Order, Journalized 4/20/93) On September 2, 1993 the court denied appellant's oral motion to terminate custody and granted appellee's written motion for long- term foster care. (Memorandum Order, Journalized 10/13/93) This appeal followed. I ON THE DATE OF HEARING THE COUNTY'S MOTION FOR LONG-TERM FOSTER CARE, THE COURT HAD LOST JURISDICTION TO ISSUE AN ORDER, AND SHOULD HAVE GRANTED FATHERS MOTION FOR RETURN OF CUSTODY. Appellant advances two arguments in support of his first assignment of error. First, he argues that the trial court was - 4 - without jurisdiction to hear appellee's motion for long-term foster care on March 18, 1993 and to grant same on September 2, 1993 because appellee failed to file a motion to extend temporary custody by August 19, 1992 to wit, within one year of the court's August 19, 1991 order granting emergency custody to the CCDHS in 1 violation of R.C. 2151.353(F). Second, he argues that even if the juvenile court possessed jurisdiction, its grant of appellee's motion for foster care on September 2, 1993 was invalid because appellee filed its motion on February 24, 1993 to wit, less than thirty days before Century's 2 dispositional hearing date scheduled for March 18, 1993 pursuant 3 to R.C. 2151.415. Appellant's arguments are meritless. While 1 R.C. 2151.353(F) provides in relevant part that: Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary custody order shall continue and not terminate until the court issues a dispositional order under that section. 2 Appellant contends that the hearing date was March 16, 1993. However, the court's September 25, 1992 and April 20, 1993 entries indicate a hearing date of March 18, 1993. 3 R.C 2151.415 provides in relevant part that: (A) Any public children service agency or private child placing agency that has been given temporary custody of a child pursuant to section 2151.353 [2151.25.3] of the Revised Code, not later than thirty days, prior to the * * * date set for at the disposi- tional hearing for the hearing to be held pursuant to - 5 - appellee did not file a motion to extend temporary custody, the record demonstrates that the court extended such custody, 4 continuing it on its own motion pursuant to R.C. 2151.417(B) on 5 September 16, 1992. Since the court's August 19, 1991 order was this section, shall file a motion with the court that issued the order of disposition requesting that any of the following orders of disposition of the child be issued by the court: * * * (5) An order that the child be placed in long- term foster care; * * * 4 R.C. 2151.417(B) provides in relevant part that: If a court issues a dispositional order pursuant to section 2151.353, 2151.414, or 2151.415 of the Revised Code, the court has continuing jurisdiction over the child as set forth in division (E)(1) of section 2151.353 of the Revised Code. The court may amend a dispositional order in accordance with division (E)(2) of section 2151.353 of the Revised Code at any time upon its own motion or upon the motion of any interested party. 5 The court's judgment entry reads as follows: This matter came on for hearing this 16th day of September, 1992, before the Honorable Leodis Harris as to the child herein heretofore adjudged dependent. The court finds that notice requirements have been met and that all necessary parties were present this day in court. * * * The court heard testimony [sic] the father's motion for return of permanent custody of the child ... . Upon the court's own motion, father's motion is denied ... . It is therefore ordered that the child is continued in the TCC/CCDCFS. - 6 - not journalized until September 16, 1991 the court's September 16, 1992 motion was timely. Moreover, the August 19, 1991 order is not controlling as it was issued in the prior, paternity action. Even if we were to assume arguendo that the August 19, 1991 date controlled, appellant has failed to demonstrate that a one-month delay in filing for an extension of temporary custody constitutes 6 prejudicial error. Appellant's arguments also fail as they ignore the continuing jurisdiction explicitly granted to the juvenile 7 court by R.C. 2151.353(E)(1) and R.C. 2151.415)E) as well as * * * It is further ordered that this matter is continued to March 18, 1993 at 8:30 a.m. before Judge Harris for review. This entry demonstrates that the court, on its own motion, extended the temporary custody of Century Harris for an additional six months in compliance with R.C. 2151.353(F). 6 The legislative purpose of R.C. 2151.353 is to prevent temporary custody from extending beyond two years. In the instant case, Century was retained in temporary custody for only eighteen months to wit, from March 26, 1992 when she was adjudged dependant until September 2, 1993 when appellee's motion for long-term foster care was granted. Hence, appellant has failed to demonstrate prejudice. 7 R.C. 2151.353(E)(1) Disposition of abused, neglected or dependent child, provides in relevant part that: The court shall retain jurisdiction over any child for whom the court issues an order of disposition pursuant to division (A) of this section ... until the child attains the age of eighteen... . (Emphasis omitted.) R.C. 2151.415 (E) Motion requesting disposition order upon expiration of temporary custody order; extension, provides in relevant part that: - 7 - precedent which holds the 30 day notice requirements set forth in R.C. 2151.415(A) to be directory, not mandatory. See, Endsley v. Endsley (1993), 89 Ohio App.3d 306. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN FINDING THE EVIDENCE TO BE "CLEAR AND CONVINCING" SO AS TO JUSTIFY PLACING THE MINOR CHILD IN LONG-TERM FOSTER CARE. Appellant's second assignment of error is also without merit. R.C. 2153.353, Disposition of abused, neglected, or dependent child, provides in relevant part that: (A) If a child is adjudicated an abused, neglected, or dependent child, the court may make any of the following orders of disposition: * * * (5) Place the child in long term family foster care with a public children services agency or private child placement agency, if a public children services agency ... requests the court to place the child in long-term foster care and if the court finds, by clear and convincing evidence that long-term foster care is in the best interest of the child and that one of the following exists: (a) The child, because of physical, mental or psychological problems or needs, is unable to function in a family-like setting and must remain in residential or institutional care; The discretion which the juvenile court After the issuance of an order pursuant to division (B) of this section, the court shall retain jurisdiction over the child until the child attains the age of eighteen... . (Emphasis omitted.) See, also, In re Doe Children (1994), 93 Ohio App.3d 134. - 8 - enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. Moreover, the knowledge the juvenile court gains at the adjudicatory hearing through viewing the witnesses and observing their demeanor, gestures and voice inflections and using these observations in weighing the credibility of the proffered testimony cannot be conveyed to a reviewing court by a printed record. See, Seasons Coal Co. v. Cleveland (1984) 10 Ohio St.3d 77, 80 (citations omitted). Hence, this reviewing court will not overturn a permanent custody order unless the trial court has acted in a manner that is arbitrary, unreasonable or capricious. See, Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 217 (citations omitted) (defining "abuse of discretion"). In re Awkal (1994), 95 Ohio App.3d 309, 316 During the September 2, 1993 dispositional hearing, Century Harris' psychologist testified that Century was diagnosed as having a Post-Traumatic Stress Disorder and that she demonstrated the following symptoms: temper tantrums, fighting, swearing, self- induced vaginal impaction, a merger of reality and fantasy, extreme fear, paranoia, hyperactivity and an inability to pay attention and/or concentrate. The psychologist also testified that although Century's behavior had improved, she regressed with great frequency. The psychologist indicated that Century's progress depended upon intensive therapy, a highly structured and supervised environment and the presence of a female care giver who could deter her vaginal impaction behavior. She further stated that Century could only be placed with individuals who had received special - 9 - training and who understood the serious nature of caring for an emotionally disturbed child. Century's social worker testified that she found the appellant to be in a state of denial with respect to Century's emotional disabilities. The social worker stated that the appellant was uncooperative and that despite an eighteen month effort, she was unable to train him to manage Century's emotional disturbances. She further stated that the appellant was unsupportive of Beech Brook's therapy plan. Appellant's therapist testified that the appellant was highly motivated to obtain custody of Century and that with intensive, specialized training he would be capable of caring for her. On cross-examination, the therapist admitted that he counseled the appellant for only one hour, every three weeks and that the appellant had difficulty accepting training from Beach Brook personnel. The appellant testified that he was unmarried, that he worked nights as a taxi driver and that he would have to take Century to a babysitter while he worked. He admitted that he cut back on his family therapy counseling sessions. He further stated that he did not like Century playing with dolls because he claimed that it caused her to regress. Our review of the record demonstrates a tragic history of sexual abuse with respect to Century Harris. A summary forwarded to the juvenile court by the Michigan Department of Human Services - 10 - indicates that at some time prior to her sixth birthday, Century was used as a "strawberry" to wit, Century was offered by her mother to provide sexual favors to those who would support her mother's crack cocaine habit. The summary further indicates that Century lived in deplorable conditions; that she witnessed her mother perform oral sex and that she also witnessed her mother stab 8 her boyfriend. In light of the severe and repeated trauma sustained by Century, the persistence of her symptoms and her continued need for predictability, consistency and structure as well as the supervision of a female care giver, it was not unreasonable, arbitrary or capricious for the trial court to deny to grant appellee's motion for long-term foster care. Appellant's testimony indicates an inability to meet Century's specialized needs as well as lack of understanding of the severity of her trauma and disabilities. Moreover, his chronic failure to cooperate with case workers reflects adversely upon his ability to care for her. See, In re Pieper (1991) 74 Ohio App.3d 714. Upon review, we find clear and convincing evidence in the record to support the court's ruling that long-term foster care is in the best interest of Century Harris. Appellant's second assignment of error is overruled. The judgment of the juvenile court is affirmed. 8 The case summary indicated that allegations of sexual abuse were found to be true during a court hearing held on September 4, 1990 by the Saginaw Juvenile Probate Court. - 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 Juvenile Court 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, J., AND KARPINSKI, J. CONCUR ANN DYKE PRESIDING JUDGE 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 journalization, .