COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67995 IN THE MATTER OF MARY BETH : : JOURNAL ENTRY vs. : : and TIMOTHY HOWARD : : OPINION and : : CATHOLIC SOCIAL SERVICES OF : CUYAHOGA COUNTY : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 12, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Juvenile Division : Case No. 9405362 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellant : MICHAEL D. SLODOV Attorney at Law 40 Euclid Avenue, #357 Cleveland, Ohio 44114 For Catholic Social ALBERT FOWERBAUGH Services : Attorney at Law 505 National City Bank Bldg. 629 Euclid Avenue Cleveland, Ohio 44114 (Continued) APPEARANCES (cont.) For Child : JOHN ZOLLER Attorney at Law 1010 East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 For Mother : JAMES R. DRAPER Cuyahoga County Public Defender DAVID KING, Assistant 2163 East 22nd Street Cleveland, Ohio 44115 Guardian ad Litem for MARITA KAVALEC Court : Attorney at Law 2163 East 22nd Street Cleveland, Ohio 44115 - 3 - ANN McMANAMON, J.: This is the fourth case before the court involving Baby Mary Beth, a child found to be dependent by the Cuyahoga County Court of Common Pleas, Juvenile Division, and placed in the permanent custody of Catholic Social Services of Cuyahoga County, Inc. (hereinafter "CSS"), a private child-placing agency. A review of 1 the record compels us to affirm. Timothy Howard is the father of Mary Beth and the appellant in this case; Julie Howard is Mary Beth's mother. The record reveals that Timothy and Julie Howard entered into a common-law marriage in 1986. At that time, the mother had an eighteen-month-old daughter from a previous liaison. During the next several years, the mother and father had two sons of their own. Evidence elicited at trial demonstrates the Howard marriage was beset with difficulties. Among other things, they had finan- cial problems rooted in the father's substance abuse and his inability to keep a job. The mother relied on public assistance and handouts from relations to support herself and her three children. When the Howards' relationship deteriorated into mutual physical attacks, they separated. The mother retained custody of 1 See Appendices A and B for prior process and related litiga- tion. - 4 - the children. During this period, however, the parties continued to have sexual relations. In June, 1991, Julie Howard discovered she was pregnant. Because of the deteriorated condition of her marriage at this time, she chose not to reveal this to her husband. On March 14, 1992 and while the Howards were still separated, the mother gave birth to Mary Beth. Julie Howard, a large-framed woman, managed to conceal her pregnancy and Mary Beth's birth from the father and her family by claiming that she went to the hospi- tal to have a cyst removed. While in the hospital, after the delivery, the mother re- quested that CSS take temporary custody of Mary Beth and place her for adoption. She told CSS that Timothy Howard was not Mary Beth's father, explaining, instead, that, while intoxicated at a party, she was a victim of rape by an unidentified man. According to the mother, this unidentified man was Mary Beth's father. On April 11, 1994, CSS filed a dependency complaint regarding Mary Beth and a motion for emergency temporary custody, thereby commencing the action which is the subject of this appeal (Case No. 9405362). All counsel involved in this case waived the ninety-day statutory period contained in R.C. 2151.35(B)(1). On April 14, 1994, the court held a hearing on the emergency temporary custody motion. At the custody hearing, the mother told the court she was unable and unwilling to care for Mary Beth and that it was in the - 5 - best interest of the child that she remain with her foster parents and ultimately be adopted through CSS. The mother declared that the father was not a suitable parent. Shirley Lee, a CSS foster home supervisor, averred that Julie Howard contacted CSS requesting adoption placement for Mary Beth. CSS made these arrangements, and Mary Beth has resided with prospective adoptive parents since July 1992. She is psychologi- cally attached to them. Ms. Lee verified that Mary Beth is a healthy, normal, well-developed child. Dr. Meredith Dobyns, who evaluated Mary Beth and her foster parents, opined that the child was thriving in her current envi- ronment. She concluded that, if temporary custody of Mary Beth were to be retained by CSS during the pendency of this action, it would not make ultimate separation, should the court so order, any more difficult than it already had become. Dr. Dobyns believed that, as of the time of her meeting with the father (October 1993), it would be extremely difficult, although not impossible, for him to manage his own life and that of Mary Beth. Dr. Dobyns based her opinion on the father's admitted problem with alcohol, his refusal to seek help for it, his inability to secure a stable home for Mary Beth, his failure to pay child support for his other children, and his inability to secure stable employment. She noted that Timothy Howard used the couple's joint tax refund check to take a trip to Las Vegas rather than provide support for his children. - 6 - Mary Beth's guardian ad litem recommended that the child remain in her foster home pending the outcome of the adjudicatory hearing. The father did not testify at the hearing, having taken the Fifth Amendment. Timothy Howard's mother described her willingness to assist her son in the care and support of Mary Beth if the court awarded him temporary custody. The paternal grandmother said she would make room for Mary Beth in her home. She also offered to help her son with what he might need should the father take Mary Beth to live with him in his grandparents' attic. The court awarded temporary custody of Mary Beth to CSS pending outcome of the adjudicatory hearing and, on April 28, 1994, denied the father's motion for visitation. The matter proceeded to an adjudicatory hearing held over the course of three days in May, June and July, 1994. At this time, the mother testified in greater detail concern- ing the events giving rise to this action. She gave Mary Beth up for adoption, she claimed, because she was financially and emo- tionally unable to care for her. She did not tell the father about Mary Beth because she did not want to be forced to take care of her and felt incapable of doing so. She was convinced that the father was incapable of caring for Mary Beth because, in her experience, he was an abusive alcoholic, did not want to work, and put his needs before those of his children. She said for the last year, - 7 - the father failed to pay any support for their children. She testified that Timothy Howard took all of their income tax refund, approximately $1500, and spent the money on a personal trip to the western United States. The mother also described the father as a person lacking the patience necessary to deal with small children. She averred he could handle visitation with their sons for only one or two days at a time. After spending a day or two with the boys, he would return them, telling her he had had enough. She told the court that, during the time they were living together, she took a part-time job but was forced to quit after a couple months because the father was not taking care of the children. She noted that her daughter, who was five years old at the time, was changing and feeding their baby and had to wake the father each morning so he could take her to school. The conditions became so bad that the father's sister would pick the children up while the mother was at work and take them to her house. When the father lived with his family, the mother described his negative impact upon their behavior. She said the children had a hard time getting along with other children, could not concentrate on their school work, and dealt with anger by scream- ing, hitting and breaking things. She said the children are happier and calmer since her separation from the father and are doing better in school. - 8 - Dr. Dobyns testified that a parent's fitness or suitability is demonstrated by, among other things, the parent's ability to provide reasonable continuity in the home setting and at work. She defined a suitable parent as one who is sensitive to the developmental needs of his or her child and is able to put that child's needs before his or her own. She said that, after meeting with the father in October, 1993 and later reviewing his medical records, it was her opinion that, were the father to acquire some understanding of rearing and managing a child of Mary Beth's age, to undergo a chemical dependency evaluation (and follow through on the recommendation of that assessment), to secure stable employ- ment, to secure a stable home environment, and to learn to put the needs of others before those of himself, he could parent Mary Beth. Dr. Dobyns was not confident that the father would be able to meet these preconditions to his successful parenting. Cynthia Dooley, a CSS social worker, testified that she, with assistance from the mother, prepared a case plan for Mary Beth within the first thirty days of her placement. Since the mother was adamant that Mary Beth be adopted, the case plan only dealt with placement of Mary Beth for that purpose. In response, the paternal grandmother testified that her son would not be permitted to move Mary Beth into his grandparents' house and that he would have to make other living arrangements were Mary Beth placed in his custody. She also acknowledged that she had not talked in detail with her son about how he would take care - 9 - of Mary Beth were he given full-time care. She further stated that her daughter opposed Mary Beth's living with them. The father told the judge that, during his eight-year mar- riage, he worked on and off at different jobs for almost five full years. He said he had been unemployed for the last few years but was now working at West Port Axle as a machine operator. The father posited that, if Mary Beth were placed in his custody, she would live at his mother's house in Lakewood; how- ever, he was unsure as to whether he would move back into his mother's house as well. He further testified that Mary Beth would go to day care while he was at work. While the father was unwai- vering in expressing his desire to parent Mary Beth, he stated that he did not want immediate, permanent custody as he believed he should be incorporated into her life gradually to make the transition easier for her. The father admitted on cross-examination that he did not see his sons for five months in 1994 because he was not paying their mother anything for their support. The father stated he did not have a car, a bank account or monetary savings of any kind. He further testified that he recently defaulted on a truck loan from National City Bank and owed that institution an unknown amount of money. He also said that he owed $15,000 in attorney fees. - 10 - Timothy Howard also testified that he did not need treatment for alcohol because he did not abuse it, only drinking about once a month. He averred that, if Mary Beth were placed in his custody, he intended to forge a familial relationship between her and his sons, regardless of the wishes of their mother. On July 18, 1994, the trial court entered judgment finding Mary Beth to be a dependent child. The matter then proceeded to a dispositional hearing, held over the course of six days in July 1994. Counsel for Mary Beth called Dr. Gregory Keck, an expert in psychology, whose practice focused primarily on attachment and bonding issues involving juveniles, to demonstrate that Mary Beth would incur irreparable harm were she removed from the care of her foster parents. Dr. Keck testified that he met three times with Mary Beth and her foster parents and that, in his opinion, she was appropriately attached to them. He further opined that to remove Mary Beth from her foster parents at this point in time would have a devastating effect on her emotional development and would not be in her best interest. Counsel for CSS also called several of the Howards' relatives to demonstrate that Mary Beth should not be placed in the father's custody. Joann Braida, Julie Howard's sister, testified that the father was too selfish and self-centered to be an effective parent. She averred that, on at least twenty-nine different occasions, the - 11 - mother and the children went without a major utility because the father spent money on himself rather then pay the bills. On one occasion, she said, he bought a motorcycle and a leather jacket for himself despite the fact that the household electricity had been shut off. She posited that the father was more interested in getting on the talk show circuit with this story, and making money off of it, than he was about Mary Beth. Ms. Braida described episodes in which the father disciplined his sons by picking them up by their heads and tossing them onto furniture. She claimed she also saw the father brandish a gun at the mother while the children were in the house. After this incident, the father went into a detoxification program, which he failed to complete. Tracy Howard, appellant's sister, also swore that it was not in the best interest of Mary Beth to be placed in the custody of the father. She noted that the behavior of Timothy Howard's other children improved dramatically when he no longer lived with them. She said the father often called the boys derogatory names and disciplined them inappropriately. She related that, when the father had the boys for visitation, he sometimes left them with his mother to watch television while he went to the bar. She said she saw the father "falling down" drunk on his birthday, May 9, 1994, a mere three months before the hearing. Tracy Howard believed the father loved his children because they looked up to him as did no one else. She described him as - 12 - easily frustrated, immature, misguided, jealous and incapable of giving child care. The witness also stated she heard the father talk about how much money he was going to make on the book and movie rights to Mary Beth's story. Finally, Tracy Howard testified that she was part owner of the house in Lakewood where her mother and younger sister lived and that she would not permit the father to move into the house. She opposed taking Mary Beth from her foster parents. The testimony of Shirley Lee, Dr. Dobyns and Julie Howard substantially reiterated that presented in one or both previous hearings. The father posited that he could provide Mary Beth care and support. He understood that, if Mary Beth were placed in his custody, he would move in with his mother for a couple of months but that it was his long-term plan to move into the home of his girlfriend. He stated that he lost his job as a machine operator after the adjudicatory hearing, but he was doing some painting, roofing and dry wall work a couple days a week. He said he was being paid cash "under the table" and was still receiving food stamps. The father was unsure whether, if he reported this income, he would still be eligible to receive food stamps or Medicaid for himself and Mary Beth were she placed in his custody. Timothy Howard called his girlfriend, Annette Porozynski, to say that he could parent and that he had living arrangements for - 13 - Mary Beth. Annette, a self-employed carpenter who told the court she pools finances with Timothy Howard, testified that she has known him for five months, that they are in love and that she thought it would be "nice" if appellant and Mary Beth moved into her home. She also testified that she has seen appellant interact with his sons on a number of occasions and that he is a very loving father. She acknowledged he works only sporadically. The father presented an expert witness, Dr. Richard Rakos, to show that a child can be detached from a significant care giver without incurring long-term psychological trauma. The doctor expressed the opinion that adopted children inevitably suffer psychological trauma when they learn they are adopted and have siblings. He opined that children of a young age can be success- fully detached from a significant care giver, placed into the care of another, and form the necessary attachments to that care giver provided there is high quality parenting in the new home. On cross-examination, Dr. Rakos explained he never met the father or Mary Beth and that his opinions had nothing to do with the factual specifics of this case. Dr. Rakos stated he was in no position to judge or advise the court on whether the father was a suitable parent for Mary Beth or whether he could provide the sort of environment and high quality parenting needed to foster attach- ment. On October 12, 1994, the court granted permanent custody of Mary Beth to CSS for purposes of adoptive placement and divested - 14 - the father of all parental rights. This appeal followed. Appel- 2 lant raises seven assignments of error. In his first assignment of error, Timothy Howard challenges the constitutionality of R.C. 2151.33 and Juv.R. 13. The record shows, however, that he did not raise any of these constitutional claims in the trial court; therefore, they are waived on appeal. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43; Abraham v. National City Bank Corp. (1990), 50 Ohio St.3d 175, 176, fn. 1. The father also alleges as error the court's award of pre- adjudicatory temporary custody of Mary Beth to CSS. He insists that, before the court could lawfully commit Mary Beth to the pre- adjudicatory temporary custody of CSS, R.C. 2151.419 requires that the court first find that CSS made an effort to return her to a parent and that CSS attempted to eliminate the reasons "that lead to [her] removal." It is axiomatic that the starting point in the interpretation of a statute is the language of the statute itself. R.C. 2151.419 provides in relevant part: (A) At any hearing held pursuant to section *** 2151.33 *** of the Revised Code at which the court removes a child from his home or continues the removal of a child from his home, the court shall determine whether the *** 2 See Appendix C. - 15 - private child placing agency that filed the complaint in the case, removed the child from his home, has custody of the child, or will be given custody of the child has made reasonable efforts to prevent the removal of the child from his home, to eliminate the continued removal of the child from his home, or to make it possible for the child to return home. The agency shall have the burden of proving that it has made those reasonable efforts. We note that R.C. 2151.33 provides in relevant part, as follows: (A) Pending hearing of a complaint filed under section 2151.27 of the Revised Code *** the juvenile court may make any temporary disposition of any child that it considers necessary to protect the best interest of the child ***. * * * (E) The court, pending outcome of the adjudi- catory and dispositional hearings, shall not issue an order granting temporary custody of a child to a *** private child placing agency pursuant to this section, unless the court determines and specifically states in the order that the continued residence of the child in his current home will be contrary to his best interest and welfare and makes the determination and issues the written finding of facts required by section 2151.419 of the Revised Code. Thus, only when a child is removed from his or her home and placed in the temporary custody of a private child placing agency pursuant to R.C. 2151.33 is the court required to comply with the mandates of R.C. 2151.419. In this case, it is undisputed that Mary Beth was not removed from the home of her biological parents. Moreover, she was - 16 - committed to the temporary care and custody of CSS pursuant to a court order lawfully made in compliance with Juv.R. 13. Juv.R. 13 provides, in relevant part, that: (B) Temporary orders * * * (2) Upon the filing of an abuse, neglect or dependency complaint, any party may by motion request that the court issue any of the following temporary orders to protect the best interest of the child: (a) An order granting temporary custody of the child to a particular party; *** In this situation, the supreme court has already held that no R.C. 2151.419 findings are required to be made by the court. Howard v. Catholic Social Services of Cuyahoga County (1994), 70 Ohio St.3d 141, 145. In that case, the court held that "R.C. 2151.419 applies only to a child who has been removed from his home. Here the complaint alleges not that CSS removed the child from any home but that it had the child voluntarily placed with it by Julie Howard, who misrepresented to CSS that appellant was not the biological father." Cf. In re Koballa (Jan. 24, 1985), Cuyahoga App. Nos. 48417, 48480, unreported. We note that any findings made by the court in this regard were not required. The father also complains that the decision of the trial court to place Mary Beth in the temporary custody of CSS (both before and after the adjudicatory hearing) is contrary to law and against the manifest weight of the evidence. He argues that, before the court - 17 - could commit Mary Beth to the temporary custody of CSS, it was first required to find, by clear and convincing evidence, that he was unfit and that an emergency situation existed. He claims no such findings were made by the court in this case and that the court erroneously made its temporary custody decision based simply upon what was perceived as being in the best interest of Mary Beth. First, we find no merit to the father's argument that, in determining whether to commit Mary Beth to the temporary custody of CSS, the court was required to place Mary Beth's best interest secondary to his rights. Both Juv.R. 13 and R.C. 2151.33 authorize the court to make such temporary orders as may be necessary to protect the best interest of a child who is the subject of a dependency complaint. Moreover, neither Juv.R. 13 nor R.C. 2151.33 requires the court to first find, by clear and convincing evidence, that a parent is "unfit" before it can place a child who is the subject of a dependency complaint in the temporary custody of someone other than a parent. As acknowledged by the father, the determination of the issue of whether a person is a fit parent is one to be made at the adjudicatory hearing. In re Cunningham (1979), 59 Ohio St.2d 100. The father also posits that the evidence presented at the hearing did not support the court's decision that it was in the best interest of Mary Beth that she remain in her foster parents' home pending resolution of all issues in this case. - 18 - We are sensitive to the rule that an appellate court will not substitute its judgment for that of a trial court. The rule is founded on the more accurate perceptions of a judge who sees and hears the parties testify. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77; In re Bibb (1980), 70 Ohio App.2d 117. The trial court found that to remove Mary Beth from the only home she has ever known would cause her serious and irreparable harm and that it was in her best interest that she be allowed to remain in the home of her foster parents pending resolution of all issues in this case. Upon review of the record, we find that the evidence presented at the hearing supports this finding of the trial court. Dr. Dobyns testified that Mary Beth was thriving in her fos- ter home and that it was her opinion that, if temporary custody of Mary Beth were retained by CSS during the pendency of this action, it would not make her ultimate separation from her foster parents, should the court deny CSS's complaint, any more difficult than it already would be. Dr. Dobyns opined she had concerns about the father's ability to parent. Although Dr. Dobyns was not convinced that he could not parent Mary Beth, it was her opinion that the father needed: (1) to develop some understanding of how to rear and manage a child; (2) to undergo a chemical dependency evaluation and follow through on the recommendation of that assessment,; (3) to secure stable employment; (4) to secure a stable home environment; and (5) to learn to put the needs of others before those of himself - 19 - before he could effectively parent Mary Beth. She acknowledged that it would take a significant amount of time for the father to comply with these conditions. The only evidence presented in opposition to the motion for temporary custody was the testimony of Timothy Howard's mother, who evinced a willingness to assist him in the care and support of Mary Beth. She did not know, however, where the father and Mary Beth would live nor whether her son could pay for necessary day care for Mary Beth. In light of the above, we find the decision of the trial court to keep Mary Beth in the temporary custody of CSS pending the resolution of all issues in this case to be supported by the weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus. The first assignment of error is overruled. In his second assignment of error, the father argues that the trial court's ruling that Mary Beth was a dependent child is unconstitutional, not based on clear and convincing evidence, and against the manifest weight of the evidence. He initially attacks the fundamental fairness of the pro- ceedings at the adjudicatory hearing, complaining that he was deprived of his right to parent Mary Beth without a finding that he was an "unfit" parent. The father contends that, in finding Mary - 20 - Beth to be dependent, the court failed to distinguish between the standard of parental suitability and the best interest of the child standard, which he insists has no applicability in an adjudicatory hearing. The father urges that the word "unfit" must be explicitly used in the court's findings in order to validly find a child dependent. We disagree. A dependent child, as defined in R.C. 2151.04, includes any child "whose condition or environment is such as to warrant the state, in the interests of the child, in assuming his guardian- ship." R.C. 2151.04(C). In its findings of fact, the trial court made the following finding based on the testimony of Dr. Dobyns: A parent's fitness or suitability is demon- strated by, [among] other things, the parent's ability to provide reasonable continuity in the home setting and at work. A suitable parent is sensitive to the developmental needs of their child, and is able to put their child's needs before that of their own. Upon evaluating Tim H., Julie H. and interviewing some H. family members, Dr. Dobyns has concerns that Tim is neither a fit nor suitable parent. After setting forth Dr. Dobyns's definition of a suitable or fit parent, the court proceeded to enter additional findings, applying this definition to other evidence adduced at the hearing. In so doing, the court further found that: *** Tim H. has never been able to maintain steady or consistent employment, does not currently maintain a stable or suitable home environment, and has not consistently provided any child support for any of his children. - 21 - The court further finds that Tim H. chose to spend his income tax refund on a personal vacation and gave none of it for the support of his children. Clearly, the court deemed Timothy Howard unfit to parent as that term was defined by Dr. Dobyns. The fact that the court did not explicitly use the word "unfit" to describe appellant is immaterial. The father also contends that the trial court did not have clear and convincing evidence upon which to base its finding that Mary Beth was dependent. "Clear and convincing evidence is that which 'produce[s] in the mind of the trier of facts a firm belief or convictions as to the facts sought to be established.'" In re Pieper Children (1993) 85 Ohio App.3d 318, at 326, citing In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, quoting Cross v. Ledford (1954), 161 Ohio St. 469. The determination of whether a child is dependent, as defined by R.C. 2151.04, must be made as of the time of the hearing on the complaint. In re Justice (1978), 59 Ohio App.2d 78, 80; In re Bishop (1987), 36 Ohio App.3d 123, 125-126. Where a parent has never had physical custody of a child, the determination of depen- dency under R.C. 2151.04(C) is based on what the child's "condi- tion or environment" would be if the child were placed in the custody of that parent. In re Pieper Children (1993), 85 Ohio App.3d 318, at 325, citing In re Bishop (1987), 36 Ohio App.3d 123, 521 N.E.2d 838; In re Smart (1984), 21 Ohio App.3d 31, 21 OBR 33, 486 N.E.2d 147; In re Campbell (1983), 13 App.3d 34, 13 OBR 36, 468 - 22 - N.E.2d 93; In re East (C.P.1972), 32 Ohio Misc. 65, 288 N.E.2d 343. In this case, we find there was clear and convincing evidence to support the trial court's determination that the father was incapable of providing care and support for Mary Beth at the time of the adjudicatory hearing. In addition to the testimony of Dr. Dobyns, there was also evidence that the father had no stable home to which to bring Mary Beth nor had he ever been able to maintain steady employment. Mary Beth could not move into the home where the father was living, and it was unclear whether Mary Beth would be permitted to live at his mother's home. Moreover, there was evidence that the father had not demon- strated ability to care for a child of Mary Beth's age. The mother told the court that the father was incapable of caring for small children. She said he did not have the necessary patience to deal with small children and provided a number of examples to support her statements in this regard, which we have fully delineated. (Pp. 6-7, supra). Based on the foregoing, we find there was clear and convinc- ing evidence from which the trial court could conclude that Mary Beth was dependent under R.C. 2151.04(C). The father also asserts that the adjudication of dependency was against the manifest weight of the evidence. "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing - 23 - court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co., supra. Our review of the evi- dence before the trial court reveals that the adjudication of dependency was supported by competent, credible evidence; there- fore, the adjudication of dependency was not against the weight of the evidence. The second assignment of error is overruled. In his third assignment of error, Timothy Howard argues that the trial court erred in denying his motion of April 27, 1994 to appoint an independent psychological examiner, at the expense of the state, for purposes of presenting a defense on his behalf at the adjudicatory hearing. Juv.R. 32(A) provides that a court may order and utilize a physical or mental examination at any time after the filing of a complaint. The use of the word "may" is generally construed as optional, permissive or discretionary. In re Fleming (1991), 76 Ohio App.3d 30, 38. Analogously, it has been held that the right of an indigent criminal defendant to an expert witness or a second medical examination is within the discretion of the trial court. See State v. President (Apr. 21, 1993), Lorain App. No. 92CA5408, unreported; State v. McFarland (Jan. 15, 1993), Muskingum App. No. CA-92-7, unreported; and State v. Tanner (Dec. 31, 1991), Franklin App. Nos. 91AP-263 and 651 (all of these cases citing Axe v. - 24 - Oklahoma (1985), 470 U.S. 68). Accordingly, we must determine if the trial court abused its discretion in overruling the father's motion for appointment of an independent psychological expert. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506. When applying the abuse of discretion standard, a reviewing court is not free merely to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138. The father urges that due process required the appointment of a psychological expert to examine him and to testify on the issue of whether he is "alcohol dependent." He asserts that that issue was a significant factor for the court's consideration in deter- mining whether Mary Beth was a dependent child and that he needed expert testimony to rebut Dr. Dobyns's assertion that his drinking habits would hamper his ability to parent Mary Beth. This argument ignores the fact that it was he who requested that Dr. Dobyns perform a psychological evaluation for the purpose of "assessing whether or not [he] is an alcoholic ***." See motion for psychological evaluation filed on or about September 10, 1993. Although Dr. Dobyns's evaluation was conducted during the pendency of the second complaint, the father did not object to proceeding in this case with her previous evaluation. It was only after he - 25 - learned at the April 14, 1994 hearing on temporary custody that Dr. Dobyns did not form a professional opinion with which he agreed regarding his alcohol use that he then moved for an additional psychological evaluation. The court was not required to appoint psychological examiners, at public expense, until the father agreed with the findings of such evaluation. The father was provided with an independent evaluation by the psychiatrist of his choice, and since no allegations of unprofes- sional or improper conduct on the part of Dr. Dobyns were made and as no new circumstances required additional psychological or psychiatric evaluation, we can discern no abuse of the trial court's discretion in overruling the motion to appoint another independent psychological examiner. The third assignment of error is overruled. In his fourth assignment of error, the father contends that the trial court erred in denying his motion for a hearing to review the case plan pursuant to R.C. 5103.15(B)(1), and in ratifying his exclusion from the case plan. R.C. 5103.15(B)(1) provides, in relevant part, as follows: [I]f a final decree of adoption for a child who is the subject of an agreement for the surrender of permanent custody executed solely for the purpose of obtaining an adoption of the child is not issued for the child within one year after the agreement is entered into, a review hearing shall be held pursuant to - 26 - section 2151.417 of the Revised Code and every subsequent twelve months after that date. Thus, only when a child is the subject of a permanent surren- der agreement is the court required to comply with the hearing requirement of R.C. 5103.15(B)(1). In this case, CSS did not rely upon the permanent surrender that was signed by the mother as the justification for its custody of Mary Beth; thus, R.C. 5103.15(B)(1) is inapplicable, and the court appropriately denied the father's motion. Timothy Howard also argues that CSS had an affirmative duty pursuant to R.C. 2151.412, Ohio Admin. Code Section 5101:2 et seq. and 42 U.S.C. Section 620 et seq. to include him in the case plan and that their failure to do so deprived him of due process of law under the United States Constitution. Essentially, the father contends that after genetic testing identified him as the biologi- cal father, CSS was required to amend its case plan to seek to unify him with Mary Beth. We disagree. In 1989, the Ohio General Assembly amended R.C. 2151.412 to eliminate the requirement of preparation of comprehensive reunifi- cation plans. See In re Kwanza Lee Stevens (July 16, 1993), Montgomery App. No. 13523, unreported. Instead, the General Assembly called for preparation of case plans for children in temporary custody having one of the following general goals: (F)(1) All case plans for children in tempo- rary custody shall have the following general goals: - 27 - (a) Consistent with the best interest and special needs of the child, to achieve an out-of-home placement in the least restrictive, most family-like setting available and in close proximity to the home from which the child was removed or the home in which the child will be permanently placed: (b) To do either of the following: (i) With all due speed eliminate the need for the out-of-home placement so that the child can return home; (ii) If return to the child's home is not imminent and desirable, develop and implement an alternative permanent living arrangement for the child. (Emphasis added.) Consistent with the best interest and special needs of Mary Beth, CSS designed the case plan to secure an alternative perma- nent living arrangement for her. R.C. 2151.412(F)(1)(b)(ii). Inasmuch as this is a goal sanctioned under R.C. 2151.412, we cannot say that CSS acted to deprive the father due process of law under the United States Constitution by failing to include him in the case plan. Moreover, whatever rights R.C. 2151.412, Ohio Admin. Code Section 5101:2 et seq. and 42 U.S.C. Section 620 et seq. might confer on parents for the failure of a child-placing agency to include the father in the preparation of the case plan, secure the father's signature on the case plan, et cetera, relief nullifying a valid judgment of dependency is not available. See In re Fleming (1991), 76 Ohio App.3d 30; In re Galloway (1991), 77 Ohio App.3d - 28 - 61; see, also, Lesher v. Lavrich (6th Cir.1986), 784 F.2d 193 (construing former R.C. 2151.412). The fourth assignment of error is overruled. In his fifth assignment of error, the father contends that the trial court erred in overruling his oral motion requesting the trial judge recuse himself from the case based upon the assertion that the judge displayed hostility toward his lawyer during the hearing. Essentially, the father asks this court to determine that the trial judge improperly failed to disqualify himself. This court has no authority to make such a determination. Beer v. Griffith (1978), 54 Ohio St.2d 440; Kupar v. Kupar (Nov. 23, 1994), Cuyahoga App. No. 66462, unreported; State v. Ramos (1993), 88 Ohio App.3d 394, 398. The authority to pass upon the disqualification of a trial judge is vested with the chief justice of the Ohio Supreme Court or his designee. Section 5(C), Article IV, Ohio Constitution. See, also, R.C. 2701.03. Accordingly, the fifth assignment of error is overruled. In his sixth assignment of error, the father asserts that the trial court did not address the merits of his motion to remove the - 29 - guardian ad litem as it failed to journalize its ruling on this motion. It is well established that, when a trial court fails to rule on a motion, it will be presumed that the court overruled the motion when, thereafter, the court takes action inconsistent with the granting of the motion. Solon v. Solon Baptist Temple (1982), 8 Ohio App.3d 347, 351; Shillman v. Frankel (July 7, 1988), Cuyahoga App. No. 54068, unreported. We find, on the facts of this case, that, by proceeding to the adjudicatory hearing with Ms. Kavalec still serving as guardian ad litem for Mary Beth, the trial court overruled the father's motion to remove her as guardian ad litem for Mary Beth. Appellant's sixth assignment of error is overruled. In his seventh assignment of error, Timothy Howard contends that the trial court erred in granting permanent custody to CSS because none of the circumstances set forth in R.C. 2151.414(E) was proven by clear and convincing evidence and the judgment was against the weight of the evidence. The scope of this court's review in such circumstances is limited. This court will not overturn a permanent custody order unless the trial court has acted in a manner that is arbitrary, unreasonable or capricious. In re Awkal (1994), 95 Ohio App.3d 309, 316. - 30 - Under R.C. 2151.353(A)(4), the juvenile court is empowered to "commit the child to the permanent custody" of a private placing agency such as CSS if the court finds, "in accordance with division (E) of Section 2151.414 of the Revised Code[,] that the child cannot be placed with one of his parents within a reasonable time or should not be placed with either parent and determines [in accordance with R.C. 2151.414(D)] *** that the permanent commitment is in the best interest of the child." See, also, Juv.R. 34(D) and R.C. 2151.414(B) to the same effect. As to whether the child cannot be placed with either of his parents within a reasonable period of time or should not be placed with his parent(s), R.C. 2151.414(E) states that: In determining at a hearing held pursuant to *** division (A)(4) of section of the Revised Code whether a child cannot be placed with either of his parents within a reasonable period of time or should not be placed with his parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held *** for the purposes of division (A)(4) of section 2151.353 of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents. This section of the statute lists the following eight condi- tions for the court to consider in deciding whether a child can or should be placed with his parent(s): (1) Following the placement of the child out- side his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist parents to remedy the prob- - 31 - lems 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 determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other 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 disabili- ty, or chemical dependency of the parents makes the parent unable to provide an adequate permanent home for the child at the present time and in the forseeable [sic] future; (3) The parent committed any abuse as described in section 2151.031 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; (5) The parent is incarcerated for an offense committed against the child or a sibling of the child; (6) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least eighteen months after the filing of - 32 - the motion for permanent custody or the dispositional hearing; (7) The parent is repeatedly incarcerated and the repeated incarceration prevents the parent from providing care for the child; (8) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect. The father maintains that the trial court made numerous find- ings with regard to these conditions, as they pertain to Mary Beth, which are not supported by clear and convincing evidence. We agree that some of the court's findings are not supported by competent, credible evidence; to-wit: *** That reasonable efforts were made to eli- minate the continued removal of the child from her home. The court further finds that said reasonable efforts were not successful due to the actions or inactions of the parents ***. The court further finds that for the pendency of the proceedings in this matter, the parents were repeatedly informed, advised and counseled to undertake certain acts and/or practices which would substantially remedy the conditions which led to the child being placed in foster care. The court further finds that both parents have failed continuously and repeatedly for periods in excess of six(6) months to substantially remedy the conditions which lead [sic] to the removal of the child from [the] home ****. The court further finds that neither parent has substantially remedied the conditions leading to the child's placement since neither utilized medical, psychiatric, psychological or social rehabilitative services which were available or recommended to them. - 33 - These are findings which incorrectly imply that Mary Beth was removed from her home. As stated under the father's first assign- ment of error, this is not a removal case. In addition, while there is evidence that appellant used the Howards' income tax check to take a trip to Las Vegas, there is no evidence that appellant used the money to gamble. This is not to say, however, that the trial court erred in finding that Mary Beth could not and should not be placed with the father. The focus of a court in determining whether a child can or should be placed with her parent is on the suitability of the parent to take custody of the child. In re Cunningham (1979), 59 Ohio St.2d 100; In re Higby (1992), 81 Ohio App.3d 466. A parent is unsuitable when a court determines that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent is incapable of supporting or caring for that child, or that an award of custody to the parent would be detrimental to the child. In re Perales (1977), 52 Ohio St.2d 89; Reynolds v. Ross Cty. Children's Serv. Agency (1983), 5 Ohio St.3d 27. Implicit throughout the court's other findings of fact and judgment entry is the conclusion that the father is incapable of supporting and caring for Mary Beth and that awarding custody to him would be detrimental to Mary Beth. The court specifically found that he has failed to obtain appropriate and stable housing - 34 - and to maintain consistent employment. The court also found that he has suffered from a long-term, chronic chemical dependency problem, which, although in partial remission, will render him unable to provide an adequate permanent home or adequate parental care for Mary Beth if he relapses. The court found that the father had recently abused alcohol and that he demonstrated an inability to support his children financially, choosing to spend money available for support for self-gratification. The court also found that Timothy Howard has a history of domestic violence and abuse. We hold these findings of the court to be supported by clear and convincing evidence. Dr. Dobyns testified that appellant had an inability to subordinate his personal interests to those of his children. The record is permeated with examples supporting the opinion of Dr. Dobyns. The father acknowledged, himself, that he spent the parents' joint tax refund check on a trip to Las Vegas because he needed to "get away." The father explained he did not give the mother any money for the support of the children because she wanted too much money. He made this statement in spite of the fact that he had given the mother only $50 in support since their separation in 1993. Various relatives of the Howards corroborated that the father was unable to subordinate his interests to the needs of his children, purchasing a motorcycle and a leather jacket when the electricity in the house was shut off for non-payment. - 35 - We have also noted that the father had neither stable employ- ment nor housing and could not move Mary Beth into his grand- parents' attic or his mother's home. His sister testified that she is part owner of the house where her mother lives and that she would not allow appellant to move into the house with Mary Beth. Although the father said he could move in with his girlfriend, the record shows that he has only known her for five months. Were the father and this woman to break up, the father would again be without housing for Mary Beth. Moreover, there was substantial evidence that the father had an erratic employment history and did not want to work. Evidence disclosed the father was receiving food stamps; however, he was unsure, if he reported all of his income, that he would still be eligible for this assistance. The same was true with respect to Medicaid for Mary Beth. There was also evidence that the father continued to have a problem with alcohol. His sister averred that she had seen her brother "falling down drunk" a short time before the hearing. There was evidence that the father had a negative effect on his children, that he was abusive, and that the behavior of his sons improved dramatically after he moved out of the house. The record contains testimony as to inappropriate forms of discipline of the children and physical and mental abuse of the mother by Timothy Howard. - 36 - We cannot agree that the judgment of the court granting CSS permanent custody of Mary Beth was against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., supra. The evidence supports the trial court's conclusion that appellant was not a suitable parent to take custody of Mary Beth. The seventh assignment of error is overruled. Judgment affirmed. - 37 - 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 Cuyahoga County 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. LEO M. SPELLACY, P.J. and JAMES D. SWEENEY,J. CONCUR JUDGE ANN McMANAMON* *SITTING BY ASSIGNMENT: Ann McManamon, retired Judge of the eighth Appellate District. 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, at which time it will become the judgment and order of the court and time period for review will begin to run. - 38 - APPENDIX A To facilitate Mary Beth's foster family's desire to adopt her, CSS filed a complaint on November 24, 1992 in the Cuyahoga County Court of Common Pleas, Juvenile Division, seeking a declaration that Mary Beth was a dependent child (Case No. 9214817) and an award of permanent custody in order to proceed with her adoption. A hearing was held in Case No. 9214817 on December 8, 1992. The child's parents appeared together at the hearing and requested that permanent custody of Mary Beth be awarded to them since they had reconciled their differences and resumed living together in August, 1992. The mother expressed, as well, that Timothy Howard is Mary Beth's biological father. In light of these developments, the judge continued the hearing on the matter, ordered that temporary custody of Mary Beth be maintained by CSS during the pendency of the hearing and ordered appellant to undergo genetic testing. It was later confirmed that Timothy Howard is Mary Beth's biological father. The matter was then assigned to another judge, who, on June 16, 1993, appointed a guardian ad litem for Mary Beth and counsel to represent her. On August 30, 1993, the father moved the court for dismissal of Case No. 9214817 on the ground that the dispositional hearing was not conducted within ninety days of the filing of the complaint - 39 - as required by R.C. 2151.35(B)(1). The court granted the motion and dismissed the complaint without prejudice on September 8, 1993. Before the actual dismissal of Case No. 9214817, Mary Beth, through court-appointed counsel, filed a complaint in the juvenile court on September 1, 1993. She reiterated the request of CSS that she be declared a dependent child and that CSS be granted permanent custody of her (Case No. 9311338). By the time of the adjudicatory hearing in Case No. 9311338, November 1993, the parents were again separated. On November 30, 1993, the ninetieth day after the complaint was filed, counsel for the father again moved to dismiss the complaint pursuant to R.C. 2151.28(B)(3) and 2151.35(B)(1). Thereafter, the court dismissed the complaint in Case No. 9311338 without prejudice. On the same day that Case No. 9311338 was dismissed, CSS filed a third dependency complaint seeking permanent custody of Mary Beth (Case No. 9315631). During the pendency of the third complaint, the father filed an affidavit of prejudice with the Ohio Supreme Court against the trial judge. The affidavit was denied on February 15, 1994, sixty-seven days after the complaint was filed. CSS, therefore, voluntarily dismissed the complaint to avoid the issue of whether or not the filing of the affidavit of disqualification tolled the ninety-day statutory period contained in R.C. 2151.35(B)(1). APPENDIX B - 40 - See, also, Howard v. Catholic Soc. Serv. of Cuyahoga Cty., Inc. (Dec. 12, 1993), Cuyahoga App. No. 66594, unreported, on appeal 70 Ohio St.3d 141 (1994); State ex rel. Howard v. Ferreri (Feb. 10, 1994), Cuyahoga App. No. 66559, unreported, on appeal 70 Ohio St.3d 587 (1994); In The Matter of: Mary Beth v. Howard (Dec. 22, 1994), Cuyahoga App. No. 66748, unreported. - 41 - APPENDIX C Appellant's first assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN GRANT- ING PREADJUDICATORY AND EMERGENCY TEMPORARY CUSTODY OF MARY BETH TO [CSS]. Appellant's second assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN ADJU- DICATING MARY BETH TO BE A DEPENDENT CHILD. Appellant's third assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT'S MOTION FOR AN INDEPENDENT PSYCHOLOGICAL EVALUATION. Appellant's fourth assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT'S MOTION TO REVIEW THE CASE PLAN AND IN RATIFYING HIS EXCLUSION FROM THE AGENCY'S CASE PLAN. Appellant's fifth assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT'S MOTION TO RECUSE. Appellant's sixth assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT'S MOTION TO REMOVE COUNSEL FOR MARY BETH, AND MOTION TO REMOVE THE GUARDIAN AD LITEM. Appellant's seventh assignment of error states: THE TRIAL COURT PREJUDICIALLY ERRED IN GRANT- .