COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73043 IN RE: MATTHEW VINCI : JOURNAL ENTRY : and Appellant : OPINION : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 3, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Juvenile Division : Case No. 9693971 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For appellant: JOHN B. GIBBONS Attorney at Law 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor MICHELLE A. MYERS, Assistant C.C.D.C.F.S. 3955 Euclid Avenue Cleveland, Ohio 44115 KENNETH A. ROCCO, J.: -2- Appellant Lisa Vinci appeals from the order of the juvenile court granting permanent custody of her child, Matthew Vinci, to the Cuyahoga County Department of Children and Family Services ( CFS ). Appellant claims that the trial court erred because there was not clear and convincing evidence that one of the enumerated requirements under R.C. 2151.414(E) existed. For the reasons that follow, we find no error and affirm the decision of the juvenile court. Matthew Vinci, who was born on February 17, 1995, was adjudged a dependent child and committed to the temporary custody of CFS in November 1995. This temporary custody order expired by operation of law (R.C. 2151.353[F]) sometime in early 1996. Due to appel- lant's alleged failure to remedy the conditions causing the prior removal of Matthew from her custody, CFS filed another complaint on November 18, 1996, alleging Matthew to be a neglected and dependent child as defined in R.C. 2151.03(A)(2) and R.C. 2151.04(C), respectively. The complaint alleged, inter alia, that appellant was not providing adequate parental care to Matthew due to her mental illness, erratic behavior and lack of positive interaction with Matthew. The complaint also contained a request that Matthew be committed to the permanent custody of CFS. In conjunction with the filing of the complaint, CFS also filed a motion for pre- adjudicatory temporary custody of Matthew, also known as emergency custody, which the trial court granted on November 26, 1996. An adjudicatory hearing was begun on March 5, 1997, and testimony was taken from five witnesses on behalf of CFS. Amy -3- Weber, a social worker for CFS, testified that she attempted t with appellant her need for mental health services, bu appellant refused to acknowledge her need for such services and failed to follow through on the recommendation. Ms. Weber also testified about appellant's episodes of erratic behavior, including appellant's accusations that CFS slash[ed] her tires and mess[ed] with her laundry. March 5, 1997, Tr. at 7, 8. Laura Arabian, anotherodiscuss tCFS so cooperation and refusal to avail herself of the services recom- mended by the case plan and to appellant's failure to address or correct the conditions that resulted in the original adjudication of dependency. Dr. Mary Dobyns, a psychiatrist from the juvenile court clinic who eventually did evaluate appellant, diagnosed appellant as having a borderline personality disorder. Dr. Dobyns concluded that it was unlikely that appellant could provide adequate mothering for Matthew now or in the foreseeable future. The adjudicatory hearing was continued to March 11, 1997, at which time the trial court granted the motion of CFS to amend the complaint, striking the allegations of neglect and deleting the references to appellant's mental illness and erratic behavior.1 1 The amended complaint itself does not include the deletion of the references to the mother's erratic behavior, but the journal entry for the March 11, 1997, hearing indicates that such allegation was removed from the complaint. The journal entry controls because a court speaks only through its journal. Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380. The journal entry also includes some obvious mistakes. First, although it was clearly the trial court's intention to remove the allegations relating to child neglect and retain the allegations pertaining to child dependency, the amended complaint and journal entry deleted the reference to R.C. 2151.04(C), the dependent child statute, and retained the -4- Appellant, through counsel, entered an admission to the amended complaint of dependency. The trial court accepted her admission, found Matthew to be a dependent child, and continued the matter to May 15, 1997, for a dispositional hearing. In addition, the court continued in effect its prior emergency custody order and ordered that Matthew's maternal grandfather, Carl Vinci, be given a clinical evaluation by the juvenile court's clinic. The only witnesses to testify at the dispositional hearing were Dr. Dobyns and Carl Vinci. Dr. Dobyns testified that it was in Matthew's best interest to remain with the foster parent. In Dr. Dobyns' opinion, Matthew had bonded with the foster parents, and they were able to provide a structured, caring and safe environment for him. The remainder of the testimony elicited at the dispositional hearing focused on the maternal grandfather's fitness and suitability to be awarded legal custody of Matthew. Thereafter, the trial court entered the following order of disposition: *** the court finds by clear and convincing evidence that it is in the best interest of the child to grant permanent custody to the Cuyahoga County Department of Children and Family Services and that reasonable efforts by CCDCFS to prevent removal of the child from his home were made and the child is not aban- doned or orphaned. The court further finds that the child cannot be placed with his parents within a reasonable time or should not reference to R.C. 2151.03(A)(2), the neglected child statute. Moreover, the amended language in the fifth allegation of the complaint deleting the words lack of was obviously done in error. Because appellant has not assigned these clerical mistakes as error, App.R. 12(A) does not require us to pass on these errors. See Hungler v. Cincinnati (1986), 25 Ohio St.3d 338. -5- be placed with his parents for many reasons including the following: mother has not fol- lowed through with counseling for her mental illness and continues to act in an erratic behavior. Mother's mental illness prevents her from providing proper and adequate care of child. *** It is further ordered that child is committed to the permanent care and custody of Cuyahoga County Department of Children and Family Services for the purposes of adoption. *** (Journal Entry, dated July 15, 1997) Appellant filed a timely appeal from this order, assigning the following error for our review: THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FAVOR OF APPELLEE BASED UPON APPELLANT'S ALLEGED MENTAL ILLNESS AND ERRATIC BEHAVIOR BECAUSE ALL FACTUAL ALLEGATIONS OF MENTAL ILLNESS AND ERRATIC BEHAVIOR BY APPELLANT WERE DELETED FROM THE APPELLEE'S COMPLAINT IN THE TRIAL COURT'S ORDER DATED MARCH 11, 1997. APPELLEE THEREFORE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT ONE OF THE EIGHT (8) ENUMERATED REQUIREMENTS UNDER R.C. 2151.414(E) EXISTED. Ohio law recognizes two mechanisms for committing a child to the permanent custody of a public children services agency. The agency may request permanent custody as the dispositional order pursuant to the filing of an original complaint for dependency, neglect, or abuse or the agency may file a motion for permanent custody subsequent to a prior order of temporary custody or long- term family foster care. R.C. 2151.353(A)(4); R.C. 2151.413; R.C. 2151.414. Where, as in the case under review, permanent custody is requested as the initial dispositional order, the adjudication and disposition must occur at bifurcated hearings. R.C. 2151.35; Juv.R. 29(E)(4); Juv.R. 34(A). If the parent against whom alle- gations are made in a dependency complaint admits the allegations, -6- or if clear and convincing evidence is presented at the adjudica- tory hearing to establish that the child is a dependent child, the court may enter an adjudication of dependency and proceed to disposition. R.C. 2151.353(A); Juv.R. 29(C); Juv.R. 29(E)(4); Juv.R. 29(F)(2). If the adjudication is made, the court may grant permanent custody if it determines at the dispositional hearing by clear and convincing evidence in accordance with R.C. 2151.414(E) that the child cannot be placed with either parent within a reasonable time, or should not be placed with either parent, and if it determines in accordance with R.C. 2151.414(D) that the permanent commitment is in the best interest of the child. R.C. 2151.353(A)(4). Appellant's sole assignment of error is directed to the trial court's determination that Matthew could not be placed with her within a reasonable time or should not be placed with her. She does not allege any error with respect to the trial court's best- interest determination. In support of her assignment of error, appellant relies primarily on the case of In re William S. (1996), 75 Ohio St.3d 95. In William S., the supreme court held that in determining, in a permanent custody action, whether a child cannot be placed with either parent within a reasonable time or should not be placed with either parent, the trial court may consider only the eight factors specifically enumerated in R.C. 2151.414(E). We find appellant's reliance on William S. to be misplaced. Subsequent to the decision in William S., and prior to the filing of the complaint in the within case, R.C. 2151.414(E) was amended by the -7- General Assembly2 by adding four additional factors that a court ay consider, including t the court considers relevant. R.C. 2151.414(E)(12). See, In re Shahan (June 26, 1997), Hocking App. No. 97CA02, unreported. Thus, the juvenile court had the discretion to consider all relevant factors, including those factors relating to appellant's mental illness and erratic behavior, in its determination that clear and convincing evidence existed to establish that Matthew could not be placed with his parents within a reasonable time or should not be pm he catch-all provision [a]ny other factorlaced with his and convincing evidence as required by R.C. 2151.414 is defined as that measure or degree of proof which is more than a mere `preponderance of the evidence' but not to the extent of such certainty as is required `beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be estab- lished. In re Awkal (1994), 95 Ohio App.3d 309, 315, citing Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St.3d 176, 180-181. Our review of the record as a whole3 in the instant 2 See H.B. No. 274, effective August 8, 1996. 3 As mentioned above, Ohio law contemplates that the factors set forth in R.C. 2151.414(D) and (E) are to be established at the dispositional hearing. In the case sub judice, virtually all of the evidence relating to whether Matthew could not or should not be placed with his mother or whether a permanent commitment was in his best interest occurred at the adjudicatory hearing. There was ample evidence presented at the adjudicatory hearing, including the expert testimony of Dr. Dobyns, to otherise satisfy the requirements of R.C. 2151.414. Due to the fact that appellant has not assigned this error for our review and the record does not establish plain error, App.R. 12(A) does not require us to consider -8- case demonstrates the existence of clear and convincing evidence that Matthew could not or should not be placed with his mother pursuant to one or more of the factors listed in R.C. 2151.414(E). See, In re Leverett (Mar. 26, 1998), Cuyahoga App. Nos. 71357- 71360, unreported. For the foregoing reasons, appellant's assignment of error is overruled and the judgment of the juvenile court is affirmed. this error. See, Hungler, supra. -9- 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. PATRICIA A. BLACKMON, A.J. and MICHAEL J. CORRIGAN, J. CONCUR JUDGE KENNETH A. ROCCO 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 of decision by the .