COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68020 & 68021 IN THE MATTER OF : : BRENDAN VETSCH : : AND : JOURNAL ENTRY : AND JUSTIN VETSCH : OPINION : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Juvenile Division Case Nos. 911520 & 9113521 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Lesley Dean: For Cuyahoga County Department of Children & Family Services: ALBERT E. FOWERBAUGH, ESQ. DOROTHY REICHENBACH, ESQ. 418 National City Bank Building 3955 Euclid Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44115 -2- DYKE, J.: Appellant-Mother, Leslie Vetsch, a.k.a. Leslie Dean, appeals a judgment of the Court of Common Pleas, Juvenile Division, which granted permanent custody of her minor sons, Brendan (DOB 12-9-89) and Justin, (DOB 2-8-91) to the Cuyahoga County Department of Children and Family Services (hereinafter, "CCDCFS"). In a single assignment of error, appellant claims that the trial court's decision was against the manifest weight of the evidence. Upon review, we find appellant's assignment of error to be without merit. Accordingly, the judgment of the trial court is affirmed. The factual and procedural history of the case is stated as follows: On September 3, 1991 at approximately 11:30 p.m., the police brought Brendan and Justin Vetsch to the CCDCFS when appellant failed to pick them up from her babysitter. Appellant did not contact CCDCFS until the following day. On September 23, 1991, the children were committed to the emergency custody of the CCDCFS. The children were committed to the temporary custody of the agency with appellant's acquiescence on October 30, 1991 after being adjudged dependent. On August 11, 1993 temporary custody was modified to long-term foster care. On August 24, 1993 CCDCFS filed a motion to modify temporary custody to permanent custody for purposes of adoption. The case was heard on March 23, 1994. On March 30, 1994, the court granted permanent custody to CCDCFS issuing Findings of Fact and Conclusions of Law on September 14, 1994. The court's Conclusions of Law are stated as follows: -3- (1). THE CHILDREN ARE NOT ABANDONED OR ORPHANED AND CANNOT BE PLACED WITH EITHER PARENT WITHIN A REASONABLE TIME AND SHOULD NOT BE PLACED WITH EITHER PARENT. SEE, O.R.C. 2151.414(B)(1) THE CHILDREN HAVE FAILED CONTINUOUSLY AND REPEATEDLY FOR A PERIOD OF SIX MONTHS OR MORE TO SUBSTANTIALLY REMEDY THE CONDITIONS CAUSING THE CHILDREN TO BE [SIC] PACED OUTSIDE THE HOME. SEE, O.R.C. 2515.414(E)(1). THE PARENT HAS DEMONSTRATED A LACK OF COMMITMENT TOWARD THE CHILDREN BY FAILING TO REGULARLY SUPPORT, VISIT, OR COMMUNICATE WITH THE CHILDREN WHEN ABLE TO DO SO. SEE, O.R.C. 2151.414(E)(4) (2). IT IS IN THE BEST INTERESTS OF THE CHILDREN TO TERMINATE ALL PARENTAL RIGHTS AND GRANT PERMANENT CUSTODY OF BRENDAN AND JUSTIN VETSCH TO THE CCDCFS. SEE, O.R.C. 2151.414(A) THE CHILDREN HAVE BEEN IN PLACEMENT OVER TWO AND ONE-HALF YEARS AND REQUIRE A STABLE AND SECURE PERMANENT HOME. O.R.C 2151.414(D)(4). THE CHILDREN'S PARAMOUNT FAMILY RELATIONSHIP IS WITH THEIR FOSTER FAMILY. SEE,~ O.R.C. 2151.414(D)(2)(3). THE ADOPTION WOULD BEST PROVIDE A SECURE, STABLE [SIC] PERMENT HOME; CONTINUED LONG TERM FOSTER CARE WOULD EXPOSE THE CHILDREN TO INSECURITY WITH NO ASSURANCE OF REUNIFICATION. SEE O.R.C. 2151.414(D)(5) THERE IS REASONABLE PROBABILITY OF THE CHILDREN BEING ADOPTED AND AN ORDER OR PERMANENT CUSTODY WOULD FACILITATE ADOPTION. O.R.C. 2151.414(D)(1). Journal Entry, 9/14/94 Pg. 4, 5 Juvenile Court Nos. 9113520/21 Appellant timely appealed the court's ruling. Appellant's case worker, John Lallo, testified that in February, 1992, CCDCFS filed a case plan specifying that reunification would be contingent upon appellant's attainment of -4- the following goals: 1) maintenance of a steady job; 2) completion of a parenting course; 3) attainment of a GED; 4) arrangements for adequate child care; 4) attainment of adequate housing and 5) engagement in personal counseling to address issues relating to low-self esteem, depression, parenting, stress and crisis management. Lallo testified that while appellant completed the initial six-week parenting course, her parenting problems were not entirely known to the agency at that time. Lallo also testified that while the appellant had been employed, she failed to demonstrate any stability in that regard having been employed by Kay Bee Toys in October, 1991; Life Uniform Inc., in January, 1992; BP Inc., in February, 1992; Soccer and Stud Logo and the Ramada Inn in April, 1992, and a McDonald's Restaurant in July, 1992. Lallo further testified that in September, 1992 appellant reported working as a nursing assistant and in November, 1992 she reported working at Pic-Way Shoe stores. With respect to housing, Lallo indicated it was his impression that until recently the appellant stayed with Gladys Rini, the 1 paternal grandmother of her eldest son, Anthony. Lallo stated that in an effort to expedite reunification, CCDCFS referred the appellant for family preservation services. He testified that while appellant was able to maintain housing for a few months, she 1 Gladys Rini obtained custody of Anthony who was born to the appellant in 1987. This child is not a party to these proceedings. -5- ultimately was evicted despite the fact that family preservation had identified housing for her and had provided $100 rent. Lallo indicated that family preservation closed appellant's case because they felt she was uncooperative. With respect to personal counseling, Lallo stated that he referred the appellant to numerous agencies including the Department of Human Services, the Northeast Community Mental Health Center, the Free Clinic as well as other self-help groups but had received no reports or feedback from these agencies. Lallo also stated that for an eleven month period, to wit, from November 24, 1992 until October 27, 1993, the appellant ceased all contact with CCDCFS and her children despite numerous attempts to reach her by 2 phone, certified mail and personal visits. Lallo indicated that on October 27, 1993, appellant appeared with counsel at a preliminary hearing held pursuant to CCDCFS's motion for permanent custody. He opined that appellant's arrest and release on theft charges stemming from her November, 1992 employment with Pic-Way 2 Lallo testified that he left a message with appellant's son indicating that the next visitation would occur on December 4th. He stated that when he called to confirm visitation, a "sleepy female" hung up on him. He indicated that appellant's phone was disconnected on December 14th and that he sent a certified letter to the appellant in January, 1993. Lallo indicated in the letter that he was concerned about appellant's failure to contact her children despite the passing of Brendan's birthday and Christmas. He also indicated that a custody hearing was scheduled for January 20, 1993; that the court would be considering family placement and or permanent custody at that time; that an explanation was expected and that visitation would cease until contact with CCDFCS was re-established. Lallo stated that he placed a second copy of this letter in Gladys Rini's mail box and that appellant did not respond. -6- Shoes, was an insufficient reason to cease all contact with her children. Lallo asserted that the appellant had over two years to comply with the case plan and that he was deeply concerned because she had only recently attempted to comply with such plan. Lallo opined that in light of such history, he felt it was in the best interest of the children to remain in foster care. Lallo cited inter alia, the two and one-half year period of separation and the young age of Brendan and Justin at the time of separation (two years and seven months, respectively) as a basis for his opinion. He further stated that upon resumption of visitation, he observed that the children did not regard the appellant as their mother and 3 that the appellant exerted little influence or control over them. He opined that the children had an excellent potential for adoption; that they had been successfully and continuously placed with their foster parents for over two years and that such parents were interested in adopting them. Lallo stated that no other family placement options existed and that the children's father was disinterested in proceedings despite numerous attempts to engage him in the reunification plan. James Vetsch's disinterest was 4 corroborated by his Guardian Ad Litem, Ross Paul. Appellant testified that she had recently obtained a two bedroom apartment which rented for $295 per month; that she was 3 Lallo indicated that the children referred to the appellant as "Grandma" or "that lady." (Tr. 30) 4 The record demonstrates that the appellant and James Vetsch were divorced in 1992. -7- employed by Holiday Mall Productions earning $280 per week and that she had attended a few counseling sessions. She stated that she dropped out of contact with CCDCFS because she didn't think there was any point in obtaining custody if she were going to jail. She stated that she did not re-establish contact until the preliminary hearing in October, 1993 because she needed the time to put certain reunification goals in place. She stated that she loved her children; wanted to be reunited with them and felt that she was capable of taking care of them. On cross-examination, appellant stated that she stayed with Gladys Rini during the entire period of her absence and that she ceased contact with her children because she was embarrassed and frightened and did not want them to know about her arrest. When confronted with the fact that her children were too young to know about her arrest unless she told them, she became defensive. When the appellant was asked why she continued to placed her own needs before those of her children, she accused CCDCFS's attorney of 5 "persecuting" her. Appellant admitted that she had lost custody 5 Counsel: The most important -- the most important goal through all of this past two and a half years is your children -- Appellant: Family preservation would not come to my boyfriend's house. Counsel: -- is getting your children back, and yet I hear that there's other things that are always more important than getting your children back. Appellant: Yes, I know, I know. -8- of her first child and also admitted that she had done nothing to regain custody of him. Appellant gave numerous excuses for her failure to remain in family preservation housing (nasty landlords and cockroaches); her failure to timely initiate counseling (the counseling centers were in bad neighborhoods) and her failure to enroll in a GED program (she desired to take the GED in a college setting). Appellant further admitted that the employment she had secured was with her family; that it was merely seasonal and that 6 it amounted to only three months per year. When asked about the future, appellant stated that she felt it would be a "big adjustment" for the children to leave the foster parents they loved but it would not be a "big adjustment" for her to assume full-time Counsel: And I'm concerned that other issues are going to come up in the future now of same sort. Appellant: What more issues are you guys going to throw at me? You tell me that. You tell me how much one person can stand. I am not a god. I am not somebody who can handle everything. I'm sorry. It's just -- I don't know any human that can. You know everybody has faults. I screwed up. I admit it. I did. And I'm still being persecuted for it. Counsel: No, I'm simply asking whether -- Appellant: No, you are persecuting me. I hear -- you have been questioning me for an hour, the same things over and over. (Tr. 112, 113) 6 Appellant stated that she was "going" to start work on "Tuesday" as a proof-consultant for Olan Mills. (Tr. 62) -9- 7 custody. (Tr. 89, 90) The last two witnesses to testify were Kelly Wickson, appellant's proposed child care provider and Cheryl Howard, appellant's aunt. Wickson, a close friend of the appellant, testified that she would be able to care for appellant's children despite the fact that she had four children of her own, aged 12, 3, 1 and 8 months. On cross-examination Wickson admitted that appellant had not discussed the amount of money she would pay her. Wickson also admitted that her sole means of support was the ADC welfare program. Wickson further admitted that she had never assumed full-time responsibility for child care before and that she had been investigated by CCDCFS for allegedly failing to keep adequate amounts of food in the house. Wickson stated that CCDCFS "dismissed" the investigation after visiting her and speaking with her 12 year old son. She stated that her husband's family called 7 At page 90 of the transcript appellant stated: I don't see a big adjustment on my part. I mean, maybe starting to cook dinner every night will be the major thing, I think, because I don't -- it's me by myself. I don't have to cook every night. * * * But with kids you need the vegetables and the meats, and you know -- and learning how to deal with a four and three-year old is a big thing. You know, they go through their moods * * * . When they go through I want, I want, I want stages, I've got to learn to say no, not so-and-so time. Maybe if we work towards it this time. Not giving them everything they want right away. I mean, because -- I'll probably do that in the beginning, but -- because I'm going to be so happy and just want to give them everything that I could ever possibly give them, but -- . *** I can't afford to give them everything right away. -10- CCDCFS and that they were just "messing" with her. (Tr.144) Cheryl Howard, who resided out of state, testified that the appellant loved her children; that she wanted them back and that the appellant never indicated a lack of interest in the children. On cross-examination, Ms. Howard admitted having guardianship of the appellant from the age of 12-16 and also admitted that the appellant was difficult to control at times. Howard indicated that she could not remember whether she filed a complaint against the appellant for domestic violence in March, 1984 and also indicated that she could not remember whether she sought help from the Juvenile Court during the guardianship. Appellant cites the following assignment of error: I WHETHER THE DECISION OF THE TRIAL COURT WAS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE SO THAT THE TRIAL COURT'S DECISION SHOULD BE REVERSED. A juvenile court may grant permanent custody of a child to a public services agency if the court finds by clear and convincing evidence that: 1) it is in the best interest of the child to grant permanent custody to that agency and 2) 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) R.C. 2151.414 Hearing on motion for permanent custody, provides in relevant part that: (D) In determining the best interests of the child at a hearing held pursuant to Division (A) of this section * * * the court shall consider all relevant factors, including but not limited to, the following: -11- (1) The reasonable probability of the child being adopted, whether 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; * * * (4) The custodial history of the child; (5) The child's need for a legally secure permanent placement and whether the placement can be achieved without a grant of permanent custody to the agency. R.C. 2151.414(E) states in pertinent part that: If the court determines by clear and convincing evidence *** 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: (1) Following the placement of the child outside his home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents 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 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 ... ." (Emphasis added.) "Clear and convincing" is that level of evidence which is sufficient to establish in the mind of the trier of fact a "firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 188, paragraph three of the syllabus. Our review of the record reveals a substantial amount of clear -12- and convincing evidence to support the juvenile court's ruling that permanent custody is in the best interest of Brendan and Justin Vetsch. The record demonstrates a high probability that the children will be beneficially adopted. It also demonstrates a nearly non-existent parent-child relationship, a duration of foster care exceeding two and one half years and a compelling need for legally secure permanent placement due to appellant's demonstrated inability to maintain a physically and emotionally secure environment for her children. Appellant's argument to wit, that the instant decision is against the manifest weight of the evidence because her case worker never testified that her children could not be successfully reunited with her, is unpersuasive. James Lallo affirmatively testified, on two different occasions during the hearing, that he felt that permanent custody was in the best interest of the 8 children. Appellant's second argument, to wit, that the court erred in finding that Pinkie Clark stated in her written report that "permanent custody would definitely be in the best interest of 8 On the issue of the best interest of the children, appellant's caseworker made the following statements: "I can only say that based upon my involvement with the family and my experience so far, that I think it's in the children's better interest to remain where they are." (Tr. 49) * * * "Now when you try and weigh the pluses and the minuses, if you're asking me what my opinion is, right now, I think it's still in the best interest of the these children to remain where they are, because of the case history. (Tr. 52) -13- the children" (Journal Entry, Pg 4 of 5) is also unpersuasive as the appellant has failed to provide this court with a copy of Ms. 9 Clark's report. It is well settled that in the absence of a record exemplifying the error complained of, this court must indulge in the presumption of regularity of proceedings and the validity of the judgment of the trial court. See, Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. While appellant cites Mr. Lallo's testimony as the basis of her appeal, she apparently disregards the fact that her own testimony also constitutes evidence in this case. The juvenile court judge had the opportunity to observe appellant's demeanor and the duty, as the trier of fact, to determine her credibility and make reasonable inferences from her testimony and the testimony of her friend and aunt. We find that the instant record demonstrates clear and convincing evidence to support the court's Findings of Fact and Conclusions of Law, to wit, that appellant failed continuously and repeatedly for a period of six months to substantially remedy the conditions which caused placement (R.C. 2515.414(E)(1)); that appellant demonstrated a lack of commitment to her children by failing to regularly support, visit or communicate with them when she was able to do so (R.C. 2525.414 (E)(4)) and that permanent custody is in the best interest of the children pursuant to R.C. 2151.414(A) and (D)(1)-(5) supra. 9 Pinkie Clark served as the children's Guardian Ad Litem. -14- Appellant's sole assignment of error is overruled. The judgment of the juvenile court is affirmed. -15- 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. DAVID T. MATIA, P.J., AND NAHRA, J., CONCUR ANN DYKE 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, .