COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71620, 71621 and 71622 IN RE: DESHAWN HOWSE, : ANTWON HOWSE, : QUIANA HOWSE : Minors : : JOURNAL ENTRY Defendants-Appellants : : and : : OPINION : : DATE OF ANNOUNCEMENT JULY 9, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Juvenile Division of Common Pleas Court Case Nos. 9400988, 9400989, and 9400990 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Defendants-Appellants Michelle Howse: BROOKS J. CHAPIN, ESQ. 526 Superior Avenue 930 Leader Building Cleveland, Ohio 44114 For Department of Human Services: SARA E. JONES, ESQ. C.C.D.C.F.S. 3955 Euclid Ave. Cleveland, Ohio 44115 PATRICIA ANN BLACKMON, A.J.: Appellant Michelle Howse appeals a decision by the juvenile court in favor of appellee Cuyahoga County Department of Children -2- and Family Services ( CCDCFS ) in its custody action for permanent care of Howse's three children. Howse assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY OF DESHAWN, ANTWON, AND QUIANA HOWSE TO THE COUNTY BECAUSE THE DECISION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. II. THE APPELLANT WAS DENIED FULL RIGHTS ON APPEAL UNDER OHIO LAW, BECAUSE THE TRIAL COURT WAS NOT ABLE TO PRODUCE A FULL TRANSCRIPT OF THE TRIAL THAT RESULTED IN A TERMINATION OF THE APPELLANT'S PARENTAL RIGHTS. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. CCDCFS obtained temporary custody of Howse's three children, DeShawn, Antwon, and Quiana, on January 7, 1994. At this time, Howse and Jeffrey Holland, the father of the children, were given case plan assessments. Neither parent fully complied with his or her case plan assessments. The case plans required Howse to complete drug treatment, parenting programs, and secure stable housing. Holland was required to do the same in addition to attending reading classes and establishing paternity. Holland did establish paternity and attended the reading classes. Howse is an admitted drug abuser and has two convictions for theft and one conviction for receiving stolen property. She was incarcerated for most of the time that her children have been under the care of CCDCFS. In fact, Quiana was born while Howse was in jail in 1991. -3- The children have been with their foster mother since November 1993. Prior to this placement, the children were in and out of foster care at least five times. CCDCFS was unable to place the children with family members because prior placement in previous years was not maintained; the family members returned the children to the agency. During this time, neither parent has regularly attended scheduled visitation with the children; however, extended family members have participated in the scheduled visitations. Annie Howse, an extended family member, expressed an interest in caring for the children. She was investigated but was ruled out as an appropriate placement for the children. The determination was not based on her suitability as a care giver, but on the lack of relationship with the children. The CCDCFS reasoned the children's special psychological needs require a stable and trusting relationship with their care giver. CCDCFS determined such relationship has been established with the foster mother. The children were placed in long-term care in May 1995. In November 1995, CCDCFS moved to modify long-term care to permanent custody. Permanent custody will allow the foster mother to adopt the children. The parents objected to the motion for permanent custody and the case went to trial in August 1996. After testimony of one witness, the trial was continued to October 1996. At the August trial, Dr. Zana Dobroshi, Quiana's psychiatrist, gave testimony regarding Quiana's development. Dr Dobroshi testified Quiana is emotionally disturbed and shows signs of sexual abuse. He said her behavior of hoarding food and eating and -4- playing with her fecal matter is a result of her emotional disturbance. Dr. Dobroshi diagnosed Quiana with post traumatic stress disorder, depression, and attachment disorder and prescribed medication for her. He testified Quiana has shown signs of attachment to the foster mother, although such attachment is superficial. Dr. Dobroshi also testified removal from the foster mother would disrupt Quiana's development and may cause further emotional difficulties. At trial in October, Dr. Scott Farber testified concerning Antwon. Dr. Farber diagnosed Antwon with attention deficit disorder, behavior disorder, attachment disorder, lead poisoning, and obsessive-compulsive disorder. Antwon is also on medication. Dr. Farber testified Antwon hoards food and sits for hours picking lint or rearranging his shoes. Dr. Farber testified there were ways to therapeutically reintegrate Antwon and his siblings with their relatives; however, he recommended they stay with the foster mother. Therapist Jamesena Carthen testified regarding DeShawn. Ms. Carthen testified DeShawn's progress would be hindered if he was removed from the foster mother's care. She said his old disturbing behaviors, such as hoarding food, fire setting, and displaying his genitalia, would reoccur. Howse gave opposition testimony. At the time of the trial, Howse was incarcerated. She was released three weeks later. She testified she stopped using drugs in 1995 while in jail. She attends Narcotics Anonymous and Alcoholics Anonymous three times a -5- week. She also testified she completed three phases of a parenting class and a course on WordPerfect 5.1. Howse admitted she did not try to become drug free or attend the parenting classes as required by her case plan. Howse further testified she loved her children and wanted them back. Holland also gave opposition testimony. He testified he was prepared to take care of his children if allowed. He said he has stable housing with his mother with enough room for the children. Holland also stated he loved his children. When asked whether he visited his children, he replied he only missed one scheduled visitation. However, the sign-in sheet shows he only attended sixteen visitations out of forty. Holland said he did not always sign the sign-in sheet. Holland also testified that to the best of his knowledge he completed his case plan requirements. When asked why he did not get treatment for drug abuse, Holland said he was never told he had to get treatment. During closing arguments, Ms. Colleen O'Toole, the Guardian Ad Litem, stated Ms. Annie Howse offered suitable conditions to raise the children. However, Ms. O'Toole recommended the children stay with the foster mother. Ms. O'Toole based her recommendation on the testimonies of the children's therapists. Marty Keenan, Howse's attorney, and David Magee, Holland's attorney, urged the court to leave the children in long-term care. They argued that the therapists did not say long-term care would be harmful, only that the children should remain with the foster mother. Mr. Keenan and Mr. Magee also stressed granting custody to -6- Ms. Annie Howse would not be immediate, but gradual to allow the children time to adjust to a new care giver. At the close of trial, the court ruled that clear and convincing evidence existed to show that the children were dependent and neglected. Consequently, the court granted permanent custody to CCDCFS. This appeal followed. Howse's first assignment of error argues the trial court's decision is against the manifest weight of the evidence. Howse argues the testimony of the children's therapists was inconclusive as to the origin of the children's problems. She claims the therapists implied the children were abused, but neither therapist stated the abuse occurred while they were in the care of their parents or other relatives. Howse points to Dr. Dobroshi's testimony stating while he did not know when the abuse happened, it is possible the abuse occurred while in foster care. To support her argument, Howse highlights two facts: 1) the evidence shows there was never a report of the children's bizarre behavior until they were placed with the foster mother and, 2) three different caseworkers handled this case prior to 1993 and all three returned the children home on four different occasions after determining the home conditions were suitable. The juvenile court may award permanent custody to CCDCFS where the parents are found to be unfit. In Re Awkal (1994), 95 Ohio App.3d 309, 315. However, the juvenile court's decision must not be arbitrary, unreasonable, or capricious. Id. at 316. The -7- permanent custody order must be supported by clear and convincing evidence. In Re Brofford (1992), 83 Ohio App.3d 869, 873. Clear and convincing evidence exists when a trier of fact forms a firm belief or conviction regarding the facts a party seeks to prove. This court will only reverse the trial court's ruling regarding parental rights if the trial court's ruling was not supported by sufficient evidence to meet the clear and convincing evidence standard of proof. In the Matter of: Cassandra M. (Dec. 30, 1997), Lucas App.No. L-95-307, unreported, citing Cross v. Ledford(1954), 161 Ohio St. 469, paragraph three of the syllabus; and In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368. When a public children services agency files a [complaint] for permanent custody, R.C. 2151.414(A) directs the court to conduct a hearing. R.C. 2151.414(E) requires the trial court to find that the child cannot be placed with either of his or her parents once the court has determined by clear and convincing evidence that one or more of *** [twelve] factors exist. Once the trial court finds from all relevant evidence that one of the [twelve] factors exists, it then must consider whether permanent commitment is in the best interest of the child. R.C. 2151.414(B). Only then may it grant permanent custody of the child to the agency. In Re William S. (1996), 75 Ohio St.3d 98, 99. We are not persuaded by Howse's arguments as they lack merit. There is no dispute the children are severely emotionally disturbed. Their behavior is a result of their disturbance. The fact their behavior went unnoticed or unreported until placement with their foster mother is a reflection of the instability of their prior home life. The custodial history of a child is a -8- factor the trial court must consider in determining whether permanent custody is in the child's best interest. R.C. 2151.414(D)(4). The custodial history of these children reveals they were repeatedly abandoned by their parents and relatives. The record shows the children never stayed anywhere long enough for someone to pay attention to them or their needs. Moreover, Howse's argument that the evidence is inconclusive regarding abuse by Howse and Holland is unpersuasive. Simply because the identity of the abuser is unknown does not negate the fact that the abuse occurred, and for some time occurred while in the parents' care. To suggest that it occurred while the children were in custody of this foster parent belies the record. However, we are mindful that the children were, on at least four other occasions, in some kind of foster care. And clearly, something could have happened. For us, the question is what is in the best interest of the children now. In this foster parent's home, the children's behavior has improved, and they have attached to this mother. To disrupt that care now would be unconscionable. Furthermore, R.C. 2151.414(E) lists twelve factors the trial court must consider when determining whether the children can be returned to either parent. Of those twelve, at least five were applicable to this case: 1) Howse had continuously failed to remedy her conditions or complete her case plan; 2) She demonstrated a lack of commitment toward her children, for instance, she used cocaine while she was pregnant with Antwon; 3) she was incarcerated -9- at the time of the hearing; 4) she had been incarcerated for most of the children's lives; and 5) she either abused the children or allowed them to be abused or neglected when they were in her care. Based on our review of the record, we conclude the evidence overwhelmingly supports the trial court's decision to award permanent custody to CCDCFS. Accordingly, Howse's first assignment of error is overruled. In her second assignment of error, Howse argues she was deprived of due process because she was not provided with a full transcript of the proceedings for this appeal. To support her argument, Howse cites to State ex rel. Heller v. Miller, which held indigent parents are entitled to counsel and a transcript on appeal from a decision permanently terminating parental rights. Heller (1980), 61 Ohio St.2d 6. The United States and Ohio Constitutions' guarantees of due process and equal protection require that indigent parents be provided with counsel and a transcript in actions for the permanent, involuntary termination of parental rights. The parties are afforded every procedural and substantive protection allowed by law because the termination of parental rights is the family law equivalent of the death penalty in a criminal case. In the matter of: Shampail Hitchcock (Nov. 21, 1996), Cuyahoga App. Nos. 69291, 69292, unreported (citations omitted). However, it is not intended to require a full transcript if it is not necessary for an effective appeal. Heller at 13. (Emphasis added.) Again we are unpersuaded by Howse's argument. Howse was declared indigent and was provided counsel in the lower court and on appeal. She was also provided with the transcript of the -10- permanent custody hearings, although they were incomplete. Howse was not denied a complete transcript based on her indigency. The transcript is incomplete because tapes of the trial are lost and unavailable for transcription. In instances where the transcript is unavailable for appeal, App.R. 9 permits the appellant to prepare a statement of the evidence or proceedings from the best available means, including the appellant's [own] recollection. App.R. 9(C). Howse was informed by the Clerk of Courts the reason why the transcript is incomplete. The burden was upon her to supplement the transcript with a reconstruction of the omitted proceedings. App.R. 10(A). In the absence of an attempt to reconstruct the [transcript], the error may be considered waived. State v. Brewer (1990), 48 Ohio St.3d 50, 60-61, certiorari denied, (1995), 116 S.C. 101. See, also, St ate v. Jells (1990), 53 Ohio St.3d 22, 32, certiorari denied, (1991), 498 U.S. 1111. Hence, Howse's second assignment of error is overruled. Judgment affirmed. -11- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Juvenile Division of Common Pleas 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. Exceptions. TIMOTHY E. MCMONAGLE, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .