COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72374 IN RE: LEEVETTA GABRIEL : : JOURNAL ENTRY [Nathaniel Gabriel, : Father of Leevetta Gabriel, : AND Appellant] : : OPINION : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 26, 1998 CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court, No. 9692070. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant Matthew G. Harris, Esq. Nathaniel Gabriel: P.O. Box 622 Amherst, OH 44001-0622 Michael R. Granito, Esq. Guardian ad Litem for N. Gabriel 24400 Highland Road Richmond Heights, OH 44143 For Cassandra Donald Howard, Esq. Thornton: 13110 Shaker Boulevard Cleveland, OH 44120 Constance Farmer, Esq. Guardian ad Litem for C. Thornton 2868 Torrington Road Shaker Heights, OH 44122 For Child Leevetta Gabriel: Lisa Belkin-Laureno, Esq. Guardian ad Litem for L. Gabriel 23300 Commerce Park Drive Cleveland, OH 44122 For Appellee Cuyahoga Celestine Suttles, Esq. County Department of 3955 Euclid Avenue -2- Children and Family Cleveland, OH 44115 Services: -3- TIMOTHY E. McMONAGLE, J.: Appellant Nathaniel Gabriel appeals from a judgment of the Cuyahoga County Common Pleas Court, Juvenile Division wherein the court awarded permanent care and custody of his daughter, Leevetta, to Cuyahoga County Department of Children and Family Services ( CCDCFS ) after finding her to be a neglected child. We find no merit to this appeal and affirm the judgment of the court below. The facts relevant to the issues on appeal are as follows. Leevetta Gabriel was born March 11, 1990 while her mother was incarcerated in Coldwater, Michigan. Leevetta was placed with her father until her mother was released from jail in December, 1994 when she was reunited with her mother. Four months later, on April 25, 1995, at her mother's request, Leevetta was removed from her home and placed in foster care. On November 8, 1995 (in Case No. 9592481, Cuyahoga County Common Pleas Court, Juvenile Division), Leevetta was adjudged to be a neglected child and committed to temporary custody and care of CCDCFS. Pursuant to R.C. 2151.353(F) temporary custody terminated by operation of law and CCDCFS filed a complaint on June 6, 1996 alleging Leevetta to be a neglected, abused, and/or dependent child as defined in R.C. 2151.03(A)(2), R.C. 2151.031(A) and R.C. 2151.04(C). Following appointment of guardians ad litem for the child and each parent and assignment of counsel for the mother and appellant, an adjudicatory hearing was held on the complaint December 18, 1996. At the hearing, allegation four of the complaint was amended from the father sexually abused the child while the child was in -4- his care and custody. Father denies such abuse and has not obtained counseling[.] , to read that while in the father's care the child was sexually abused. CCDCFS called as witnesses Sheri Smith, social worker in charge of the case, and Kenneth Komperda, her supervisor. Smith testified that the last contact appellant had with her was in June of 1996; no relatives have indicated a willingness to establish a relationship with Leevetta. Komperda testified that although Leevetta's maternal aunt had expressed concerns about the reunification of the child with appellant, the aunt was unwilling to take care of the child. Komperda testified that appellant has never indicated a desire to see the child. Leevetta's mother, Cassandra Thorton, testified that she had been incarcerated for three to four years of the child's life. The court found Leevetta to be a neglected child pursuant to R.C. 2151.03, granted temporary custody to CCDCFS and continued disposition of the matter to March 12 in order to explore the last shred of hope to keep this child in the family. At the dispositional hearing March 12, 1997, the court committed Leevetta Gabriel to the permanent custody of CCDCFS. On April 11, 1997 Leevetta's father, Nathaniel Gabriel, filed his notice of appeal and advances one assignment of error for our review. I. THE ADJUDICATION BY THE JUVENILE COURT OF LEEVETTA GABRIEL AS A NEGLECTED CHILD UNDER R.C. S2151.03 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -5- Appellant contends that the allegation of child neglect by reason of sexual abuse or molestation by appellant father was the only issue relevant to him and such allegation was not proven by clear and convincing evidence and, consequently, the adjudication of Leevetta Gabriel as a neglected child pursuant to R.C. 2151.03 was against the manifest weight of the evidence. We do not agree. Initially, we note that CCDCFS contends that appellant has waived his right to appeal the adjudication made at the December 18 hearing, citing In re Becker (1984), Trumbull Co. App. No. 3301, unreported. However, the record reflects that the adjudication of neglect was not filed and journalized until March 29, 1997 and, consequently, this appeal of the adjudication has been timely presented. In determining whether a child is neglected under former R.C. 2151.03(A)(2), the trial court [is] required to find the essential statutory elements were proven by clear and convincing evidence. See R.C. 2151.35(A) and Juv. R.29(E)(4). In re Riddle (1997), 79 Ohio St.3d 259, 262. R.C. 2151.03(A)(2) provides: As used in this chapter, neglected child includes any child: (2) Who lacks proper parental care because of the faults or habits of his parents, guardian, or custodian. A finding pursuant to this section requires some showing that parents (a guardian or custodian) are at fault before a finding of a lack of proper care can be made. Riddle, supra. Our focus is whether sufficient evidence existed for the court to determine -6- that this child lacked proper parental care by appellant due to his faults and habits. 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. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Season Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. In the matter sub judice, the complaint alleges that: (1) the child was previously adjudged neglected in case no. 9592481; (2) the mother has been incarcerated numerous times and is again incarcerated; (3) the mother has failed to meet any goals of the case plan; (4) the child was abused while in the care of the father; (5) neither mother, father or any relative is willing and able to provide a permanent, safe, stable, secure home; and (6) the child has been in foster care since April, 1995. The evidence offered by CCDCFS established that Leevetta Gabriel has not been in the custody of either of her parents since April, 1995. An approved case plan for the family included a need for a diagnostic psychological evaluation of the parents and counseling; but although the case plan was explained to the father, he took no action on the plan and the mother failed to even take the opportunity to review the plan even when she was not incarcerated. Appellant has been in the CCDCFS agency several -7- times but has never requested visitation with the child and, although the mother had expressed an interest in seeing her child, she is incarcerated in Marysville with a tentative release date of July 3, 2001. After hearing on the matter on December 18, 1996, the court by journal entry stated: The court heard evidence and testimony. Upon due consideration thereof, the court finds that the allegation(s) of the complaint have been proven by clear and convincing evidence. The child is found to be neglected. Further, on March 12, the court found by clear and convincing evidence that the child cannot be placed with her parents for the following reasons: the parents have failed or refuse to provide basic necessities, regular support, visit or communicate with the child when able to do so or by other actions, has shown an unwillingnessto provide an adequate permanent home for the child. The father has abused, neglected or allowed the child to be abused or neglected between the date of the filing of the complaint and/or motion for permanent custody. Upon a review of the record before us, we find that the evidence presented at the adjudicatory hearing was both clear and convincing supporting the court's conclusion that this child lacked proper parental care due to the faults or habits of each parent and that this child was a neglected child. The evidence offered established that appellant has not provided care for his child since December, 1994; appellant has not requested visitation with the child even when he is in Cleveland; appellant has failed to -8- participate in counseling or diagnostic evaluation as recommended in the reunification plan; appellant has communicated with CCDCFS only six times since his child's placement; appellant resides in a boarding house in Michigan, stays at the City Mission when in Cleveland and does not have adequate housing for his child. Therefore, Leevetta's lack of proper parental care was shown to be due to circumstances within appellant's control. As such, it cannot be said that the determination of the lower court finding Leevetta to be a child neglected by her father (the appellant) pursuant to R.C. 2151.03(A)(2) was against the manifest weight of the evidence. Further, R.C. 2151.414(E) provides inter alia: *** If the court determines, by clear and convincing evidence, 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 that one or more of the following exist as to each of the child's parent, 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: (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. * * * (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. -9- Consequently, we find the grant of permanent custody of Leevetta Gabriel to CCDCFS pursuant to R.C. 2151.414 to have been proper. Judgment affirmed. It is ordered that appellee recover of appellant 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. DYKE, P.J. and PATTON, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .