COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70386 and 70387 [CASE NO. 70386] : IN THE MATTER OF: : CHANTEL ADDISON : JOURNAL ENTRY : AND : AND : [CASE NO. 70387] : OPINION IN THE MATTER OF: : DEANGELO ADDISON : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Civil appeals from Juvenile Court, Nos. 9400391 and 9400393. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant C.C.D. Child Lynne Stewart, Esq. and Family Services: Cuyahoga County Department of Children and Family Services 3955 Euclid Avenue Cleveland, OH 44115 For Appellees Chantel Addison George J. Coghill, Esq. and Deangelo Addison: 10211 Lakeshore Boulevard Cleveland, OH 44108 Juvenile Court Clerk's Office 2163 E. 22nd Street Cleveland, OH 44115 -2- DAVID T. MATIA, J.: Cuyahoga County Department of Children and Family Services (CCDCFS) appeals from the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, which denied the motion by CCDCFS for permanent custody of Chantel and Deangelo Addison. CCDCFS assigns one error for this court's review. This appeal is not well taken. I. THE FACTS On September 13, 1993, Chantel (d.o.b. 6-11-82) and Deangelo Addison (d.o.b. 3-30-90) were removed from the custody of their mother Ivory Addison and placed into county supervised care. Ivory Addison suffers from chemical dependency to alcohol and cocaine and has a recurring problem with homelessness. On September 30, 1993, the children were placed into the emergency custody of CCDCFS pursuant to Juv.R. 13(D). On February 3, 1994, the children were adjudicated as neglected and committed to the temporary custody of CCDCFS. The temporary custody order was extended on December 13, 1994 and on June 6, 1995. During this time period, Chantel and Deangelo Addison were placed into foster care with their maternal aunt, Darlene Williams, a certified foster mother. Ms. Williams earns approximately $23,920 per year at University Hospital and has one daughter living at home. On July 14, 1995, the department filed its motion to modify temporary custody of Chantel and Deangelo Addison to permanent custody. On January 10, 1996, a hearing was conducted on the -3- department's motion before a juvenile court magistrate. At the hearing, evidence was presented regarding Ivory Addison's drug dependency as well as her lack of contact with her children while they were in foster care. Ms. Addison also testified regarding a drug treatment plan in which she had allegedly become involved. However, Ms. Addison admitted to using both alcohol and cocaine in the week preceding the hearing. Evidence was also presented regarding the children's foster mother, Darlene Williams. Ms. Williams, who is in remission from breast cancer, testified that she would continue to care for Chantel and Deangelo Addison in a foster care setting but did not want to adopt the two children due to the additional responsibility and financial considerations. Ms. Williams admitted that on a number of occasions providing care for the children had seemed overwhelming but that she remained willing and able to provide a foster home for Chantel and Deangelo. Masarrat Kazmi, one of the county social workers on this case, testified that permanent custody would be in the best interests of the children since it would provide a more stable family situation and allow the children to become candidates for adoption. In response to an inquiry from the magistrate, Ms. Kazmi stated that she was unsure of the reasonable probability of a successful adoption for both children. At the conclusion of the hearing, the magistrate determined that CCDCFS had failed to establish by clear and convincing evidence that an award of permanent custody would be in the best interests -4- of the Addison children. The magistrate recommended that the department's motion be denied and the children be placed in long term foster care with their maternal aunt. On January 26, 1996, objections were filed by CCDCFS regarding the magistrate's recommendation and report. On March 7, 1996, the trial court overruled the objections and adopted the magistrate's recommendation. On March 18, 1996, the CCDCFS filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR CCDCFS' sole assignment of error states: THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR PERMANENT CUSTODY AND PLACING THE CHILDREN IN LONG-TERM FOSTER CARE. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN OVERRULING CCDCFS' MOTION FOR PERMANENT CUSTODY. CCDCFS argues, through its sole assignment of error, that the trial court erred in overruling the department's motion for permanent custody and placing Chantel and Deangelo Addison in long-term foster care with the children's maternal aunt, Darlene Williams, a certified foster mother. Specifically, CCDCFS maintains that it would be in the best interest of the two children to be placed into the permanent custody of the department as it would provide the children with a more stable family environment in the future, avoid "foster care drift" between potentially numerous foster homes and allow the children to become candidates for possible adoption. CCDCFS argues further that, in reaching its decision, the trial court failed to -5- consider all relevant facts regarding permanent custody set forth in R.C. 2151.414(D) as well as the factors set forth in R.C. 2151.353(A)(5) for determining the appropriateness of long-term foster care. The sole assignment of error of CCDCFS is not well taken. B. STANDARD OF REVIEW FOR PERMANENT CUSTODY. R.C. 2151.414, which governs motions for permanent custody, provides in pertinent part: (A) Upon the filing of a motion pursuant to section 2151.413 [2151.41.3] of the Revised Code for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child, the court shall schedule a hearing and give notice of the filing of the motion and of the hearing, in accordance with section 2151.29 of the Revised Code, to all parties to the action and to the child's guardian ad litem. The notice also shall contain a full explanation that the granting of permanent custody permanently divests the parents of their parental rights, a full explanation of their right to be represented by counsel and to have counsel appointed pursuant to Chapter 120. of the Revised Code if they are indigent, and the name and telephone number of the court employee designated by the court pursuant to section 2151.314 [2151.31.4] of the Revised Code to arrange for the prompt appointment of counsel for indigent persons. The court shall conduct a hearing in accordance with section 2151.35 of the Revised Code to determine: if it is in the best interest of the child to permanently terminate parental rights and grant permanent custody to the agency that filed the motion. The adjudication that the child is an abused, neglected, or dependent child and the grant of temporary custody to the agency that filed the motion shall not be readjudicated at the hearing and shall not be affected by a denial of the motion for permanent custody. -6- * * * (D) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following: (1) The reasonable probability of the child being adopted, whether an adoptive placement would positively benefit the child, and whether a grant of permanent custody would facilitate an adoption; (2) The interaction and interrelationship of the child with his parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (3) The wishes of the child, as expressed directly by the child or through his guardian ad litem, with due regard for the maturity of the child; (4) The custodial history of the child; (5) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency. R.C. 2151.414(D) is written broadly and requires the juvenile court judge to consider all factors that are relevant to the best interests of the child. The purpose of a far reaching inquiry is to allow the judge to make a fully informed decision on an issue as important as possible termination of parental rights, privileges and responsibilities. The discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be -7- given the utmost respect, given the nature of the proceeding and the impact of the court's determination will have in the future. In re Awkal (1994), 95 Ohio App.3d 309, 316. In addition, the knowledge that the juvenile court gains at the evidentiary 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 merely on a printed record. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80; cf. Miller v. Miller (1988), 37 Ohio St.3d 71. Therefore, a 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, 219. A trial court's order regarding permanent custody of a child must be supported by clear and convincing evidence. In the matter of Brendan Vetsch and Justin Vetsch (May 11, 1995), Cuyahoga App. Nos. 68020 and 68021, unreported. C. STANDARD OF REVIEW FOR LONG-TERM FOSTER CARE. R.C. 2151.351, which governs the disposition of an abused, neglected or dependent child, provides that a juvenile court shall not place a child in long-term foster care, unless it 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: -8- (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; (b) The parents of the child have significant physical, mental, or psychological problems and are unable to care for the child because of those problems, adoption is not in the best interest of the child, as determined in accordance with division (D) of section 2151.414 [2151.41.4] of the Revised Code, and the child retains a significant and positive relationship with a parent or relative; (c) The child is sixteen years of age or older, has been counseled on the permanent placement options available to him, is unwilling to accept or unable to adapt to a permanent placement, and is an agency program preparing him for independent living. In re Adam Vance (Oct. 17, 1994), Butler App. No. CA93-10-203, unreported. D. THE TRIAL COURT DID NOT ERR IN PLACING THE CHILDREN IN LONG- TERM FOSTER CARE. In the case sub judice, a review of the record demonstrates that the trial court did not abuse its discretion by placing the Addison children in long-term foster care with their maternal aunt, Darlene Williams. Clearly, the children's mother, Ivory Addison, was unable to properly care for the children at the time of the hearing. Not only had Ms. Addison failed to maintain consistent contact with her children while they were in foster care but Ms. Addison continued to abuse drugs and alcohol as well during the same time period. -9- Applying the factors set forth in R.C. 2151.414(D) to the facts of this case, it is apparent that CCDCFS failed to establish by clear and convincing evidence that an order of permanent custody was in the best interests of Chantel and Deangelo Addison. The first factor set forth in the statute, reasonable probability of adoption, was not addressed by the witnesses for the department nor was any evidence introduced to demonstrate that adoption was a viable option for the children. In fact, the juvenile court magistrate was the only person at the hearing to question whether adoption could be a reasonable probability given age and background of the children. A second factor set forth in the statute, interaction of the children with parents, siblings, relatives and foster parents, was addressed at the hearing. It was determined that both children got along fairly well with each other and with their maternal aunt while in the aunt's foster home. In addition, Darlene Williams testified that, even though she felt somewhat overwhelmed by having Chantel and Deangelo in her home, she remained willing to continue being their foster mother for an extended period of time. Significantly, the court-appointed guardian ad litem for Chantel and Deangelo also believed and recommended that both children were in a better position if allowed to remain in foster care with Darlene Williams rather than being placed in permanent custody of CCDCFS. It is the guardian ad litem's position that, should permanent custody be ordered, it could have the effect of -10- splitting the children to different foster homes and destabilize the children's family life without any real chance at adoption. The guardian ad litem's report also noted that both children wished to remain in Darlene Williams' foster home. Similarly, the trial court's order of long-term foster care is also supported by clear and convincing evidence. It is undisputed that Ivory Addison, the children's mother, suffers from significant physical, mental or psychological problems precluding her from appropriately caring for her children. For the reasons previously stated, there was no evidence before the juvenile court regarding the probability of adoption. In addition, both children retain a positive relationship with their aunt, Darlene Williams. Accordingly, pursuant to R.C. 2151.351, an order of long-term foster care under the very specific circumstances of this case, was appropriate. CCDCFS' sole assignment of error is not well taken. Judgment of the trial court is affirmed. -11- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the 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. LEO M. SPELLACY, C.J. and TIMOTHY E. MCMONAGLE, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .