COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76650 IN RE: GREGORY AND ZOE FOUNTAIN : : ACCELERATED DOCKET [Appeal by: Gregory Fountain : : JOURNAL ENTRY Appellant] : : AND : : OPINION Date of Announcement of Decision: FEBRUARY 24, 2000 Character of Proceeding: Civil appeals from Court of Common Pleas Juvenile Court Division Case Nos. 9990761, 9990762 Judgment: Affirmed Date of Journalization: Appearances: For Appellant: MICHAEL L. WOLPERT, ESQ. Jerome Silver & Associates 3421 Prospect Avenue Cleveland, Ohio 44115 For Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor TIFFANY D. ALLEN, Assistant Prosecuting Attorney 3955 Euclid Avenue Cleveland, Ohio 44115 -2- JAMES M. PORTER, J.: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. Appellant Gregory Fountain, father of Gregory (d.o.b. 6/21/97) and Zoe Fountain (d.o.b. 8/19/98), appeals from the order of the Juvenile Court granting Cuyahoga County Department of Children and Family Services ( Family Services ) permanent custody of Gregory and Zoe. Appellant contends that the evidence was insufficient to warrant a transfer of permanent custody to Family Services; that the trial court failed to issue requested findings of fact and conclusions of law; and that counsel was ineffective. We find no error and affirm. On March 27, 1998, Gregory Fountain, along with several half siblings, was taken from his mother's custody due to her abuse of drugs. At that time, Family Services received emergency custody. Gregory had been placed in emergency custody one prior time due to his mother's drug problem. In March 1998, although Family Services still retained custody of Gregory, disposition of Gregory was to his father's home. On August 3, 1998, Gregory was then taken from his father's custody due the father's domestic violence against Gregory's mother, who was then eight months pregnant with Zoe. Family Services had filed for emergency custody three previous times. Each time the custody expired. On February 19, 1999, Family Services again filed a complaint for both permanent custody and emergency custody. The emergency custody was again granted on -3- February 24, 1999 and on May 11, 1999 a permanent custody hearing was conducted. At the hearing, all the relevant parties were present except for the mother who failed to appear. The following evidence was presented. Officer Hupka testified that on August 3, 1998 he was dispatched to the home of Zandra Ross. The radio dispatch indicated that a male was beating a female with a baseball bat. When the officer arrived, EMS was already at the scene treating Ms. Ross who appeared to have a bleeding hand and welts on various parts of her body. The officer did not speak to Mr. Fountain about the incident because he had left the scene. Kristin Marshall, the Family Services Social Worker assigned to the Fountain case, testified that Family Services initially received custody of Zoe and Gregory due to the mother's drug abuse problem. In March 1998, Gregory along with his four other half siblings were taken from the mother's custody. Disposition of Gregory was to his biological father where he lived until his father committed an act of domestic violence against Gregory's mother on August 3, 1998. The agency took immediate custody of Zoe when she was born on August 19, 1998. The mother was referred to a drug abuse treatment program in March 1998. After three months, she failed to complete the program. At the time of the referral to the drug treatment program the mother was pregnant with Zoe. After quitting the program the mother relapsed into drug abuse again. The last official contact -4- the agency had with the mother was February 1999, although she had visited the children two weeks before the hearing. Her whereabouts were unknown at the time of the hearing and Marshall indicated that the mother's visitation with the children was sporadic. When she did visit with the children she appeared to be high and would fall asleep. Marshall has personally witnessed the father's anger problem as several times he has screamed, yelled and sworn at Marshall. While she conceded that it was normal for the father to be upset about the situation, the extent of the father's anger was not normal. Marshall stated that in November 1998, the father was referred to anger management classes at Beech Brook and a Batterers Intervention Program. The father initially attended the classes but then was terminated from both programs for nonattendance the same month. The father did, however, complete a six-week anger management program at Beech Brook in January 1999. However, according to Marshall, it did not appear that the program had an effect on the father's behavior. Marshall testified that the father's behavior has not stabilized and that he has had outbursts since completing the program. She indicated that he has in fact been belligerent with his anger management counselor. In February 1999, Marshall attempted to explain to the father the importance of the anger management program; however, he conveyed to Marshall that he did not feel he needed to attend the program. To her knowledge, the father's behavior has not stabilized. -5- Marshall indicated that the father was also referred to parenting classes, but only attended one class and quit. Marshall explained to both the mother and father the importance of them completing the case plan for purposes of reunification. The father understood the importance but seemed to feel that it was not necessary to complete the classes. She stated that the father's visitation with the children was consistent. Marshall noted that whenever she was there, the father spent most of the visit interacting with her instead of visiting with the children. She stated that the children do not have a strong bond with their parents. Marshall has investigated other relatives for placement of the children but has not discovered any relatives willing or who are appropriate. Zoe has been in a foster home since her birth on August 19, 1998 and Gregory has been in a foster home since August 3, 1998. Both children are in the same home and they both have a strong bond with their foster parents. According to Marshall, the foster parents would like to adopt both children. Marshall testified that it would be in the best interest of the children that Family Services receive permanent custody as neither parent has made efforts to resolve the problems that required the children to be taken away in the first place. Regarding the father, she specifically noted his lack of commitment to resolving his anger problem. She also felt that there was no real commitment to the children by either parent. -6- According to Marshall, the father currently has eight or nine children living with him ranging in age from one year to thirteen or fourteen years old. Although those children have remained in the custody of Mr. Fountain, the agency is involved with them due to allegations of neglect of some of the children. Marshall has personally been to Mr. Fountain's home and noted that there is not enough room for the children that currently live there, let alone two more. Juliette Stephens is the assigned Bellefaire case worker on the Gregory and Zoe Fountain case. She works with families who are actively seeking reunification with their children. She developed the case plan for Mr. Fountain and Ms. Zandra. She supervised several of the visits between the parents and the children. She noted that the parents were initially always very late for the visits and that sometimes they were so late that the children were no longer available for visitation. The father made an effort to be on time when several times the children were gone by the time he arrived. Stephens testified that the mother's visits were sporadic and when she did show up, she was half asleep and appeared to be on drugs. Stephens noted that when the father initially saw Zoe for the first time, he was very critical of her and stated that she was too pale. When Stephens questioned the father whether the child was his, he then warmed up to the baby. Stephens noted that there was not a strong bond between either child and their father. Stephens stated that Gregory seemed to have become attached to his -7- foster mother and his foster mother's adult son, who is also a licensed foster parent. Stephens stated that the father was continually argumentative with her. She stated that when she initially spoke with the father about the requirement of his attending anger management and parenting classes he outright refused to attend. After several months spent trying to convince him to attend, he did acquiesce in attending. She noted that Mr. Fountain, prior to this hearing on permanent custody, was inquisitive of whether the foster parents wanted to adopt the children but was concerned that the children's mother would be upset with him if he gave up his rights to the children. Mr. Fountain then testified in his own behalf. He stated that he has lived in a home that he owns for the past three years. He currently lives with his girlfriend. In spite of Marshall's claim that eight or nine children lived with him, Fountain maintained that only five children currently live with him. The children range in age from one to seven or nine years old. He has been employed as a tow truck driver for the past seven years but claims to have recently quit his job to attend parenting classes. He stated that Gregory lived with him from March 1998 until August 1998. He admitted that Gregory was taken away in August due to an argument he had with Gregory's mother. He denied knowing how the mother received the injuries that she sustained that day and denied hitting her with a baseball bat. He stated that he completed a six-week domestic violence class in January 1999 and that since -8- April 1999 he had been taking parenting classes. He stated that the agency has never had custody of the children currently living with him, although he did receive notice that the agency was informed that one of the children was medically neglected in November 1998. According to Fountain, no action was taken based on this complaint. He stated that he wants custody of both Gregory and Zoe and feels that he can provide for them. On cross-examination, the father stated that his home is a three-bedroom home. However, he indicated that he also owned a four-bedroom home and that if he got custody of the children, he would move to the other home. No one currently lives at the other home. He denied ever having an anger problem and claimed that he did not immediately take parenting classes because he felt he did not need to take parenting classes because he was already a parent. He also claimed that he quit his job three or four weeks previously so he would have the time to attend the parenting classes. He claims he is now self-employed and also receives $500/month in disability. As a result of the above evidence, the trial court found the children to be dependent and neglected. The attorneys for both sides then stipulated that disposition could be made based on the same evidence, in lieu of the court holding a separate disposition hearing. Although not appearing at the hearing, the guardian ad litem assigned to the case provided the court on May 11, 1999 with a packet of information which contained: a written report by the GAL from May 1998 in which he recommended that the mother not -9- receive custody of Gregory, but the father should; a February 18, 1999 letter regarding other children of Ms. Ross not parties to this suit; a letter from November 9, 1998 from the GAL in which he stated that in spite of the May 1998 report, he now believed custody should be awarded to Family Services due to the fact that evidence has been produced that Gregory Fountain has the potential to become violent. On the cover sheet to the May 11, 1999 packet of information, the GAL also wrote: The attached reports were submitted in reference to termination of parental rights of Greg Fountain. Evidence supports a finding for the county. My concerns identified in the original reports have not been resolved. In addition, new evidence relating to domestic violence further supports granting of the county's motion. All three reports attached hereto are incorporated by reference. The trial court thereafter issued an order granting permanent custody to Family Services. The father now appeals assigning four assignments of error. We will address appellant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY OF CHILDREN IN EMERGENCY PLACEMENT WHERE EXTREME CIRCUMSTANCES COULD NOT BE DEMONSTRATED RULING OUT REUNIFICATION. II. CLEAR AND CONVINCING EVIDENCE WAS NOT DEMONSTRATED SUPPORTING THE TERMINATION OF PARENTAL RIGHTS. Appellant claims that when a child is placed directly into permanent custody from emergency custody, a more stringent standard is required of the trial court in awarding permanent custody. He also argues that the trial court's granting of permanent custody -10- was not supported by clear and convincing evidence as none of the factors in R.C. 2151.414(E) was present and there was no evidence that the father was an inadequate parent except for hearsay evidence of an abusive incident with the children's mother. These arguments have no merit. In the case before us, pre-dispostional temporary custody was granted to Family Services on February 24, 1999. This was the fourth filing as the time requirements on previous emergency custody filings had expired. Family Services actually had emergency custody of the children since August 1998. Several months after granting this fourth pre-dispostional custody order, the trial court determined at a permanent custody hearing that the children were dependent and neglected and thereafter ordered permanent custody be granted to Family Services. As this Court recognized in In re Vinci (Sept. 3, 1998), Cuyahoga App. No. 73043, unreported, there are two ways in which Family Services can seek permanent custody of a child: 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 dispostional 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 foster care. R.C. 2151.353(A)(4); R.C. 2151.413; R.C. 2151.414. Id. at 6. In the case before us, as in the In re Vinci case, Family Services sought permanent custody of the children pursuant to the filing of an original complaint for dependency and neglect. -11- As stated in In re Vinci, the standard of review of the trial court's order when Family Services requests permanent custody in an original complaint is no different from the standard when permanent custody is requested from temporary custody: If the parent against whom the allegations are made in a dependency complaint admits the allegations, or if clear and convincing evidence is presented at the adjudicatory hearing to establish 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); Juv.R. 29(F)(2). If the adjudication is made, the court may grant permanent custody if it determines at the dispostional 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). Id. at 6-7. The deference we must show the trial court's findings and determination was set forth by this Court in In re Awkal, supra, at 316 as follows: 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 whether to terminate 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 accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. Moreover, the knowledge the juvenile court gains at the -12- adjudicatory 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 by a printed record. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410-411, N.E.2d 1273, 1276; cf. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846. Hence, this 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, 5 OBR 481, 482, 450 N.E.2d 1140, 1142 (defining abuse of discretion ). The trial court's decision in the instant case was not arbitrary, unreasonable or capricious. The evidence presented at the hearing supported the trial court's granting permanent custody to Family Services. The trial court's journal entry indicated that permanent custody was granted to Family Services for the following reasons: The court finds that the continued residence of the children in their home will be contrary to their best interest and welfare for the following reasons: Mother has a chronic and severe chemical dependency which makes her unable to provide an adequate and permanent home for the children at present and in the foreseeable future. Father of Gregory and alleged father of Zoey Fountain has failed to continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside the home. The reason cited by the trial court for not placing the children with the father is listed as one of the findings in R.C. 2151.414(E) justifying the grant of permanent custody. See R.C. 23151.414(E)(1). The record supports this finding. -13- The testimony of social worker Kristin Marshall indicated that Gregory was removed from the care of his father due to his beating Gregory's mother. Marshall also testified to appellant's outbursts that she herself had witnessed. As a result of appellant's apparent anger problem, he never received possession of Zoe. The father refused for several months to receive any treatment to control his anger problem even though it was explained to him that he could not have his children unless this problem was brought under control. Finally, after the social workers continually stressed to him the importance of receiving anger management treatment he finally consented five months later to obtaining the treatment. Testimony at trial, however, indicated that in spite of completing six weeks of anger management classes, appellant's anger problem was not resolved. According to Marshall, appellant continued to have outbursts after the treatment and was belligerent with his anger management counselor. When Marshall explained to him the necessity of receiving further treatment, appellant refused to obtain further treatment. The GAL's recommendations also specifically pointed to the appellant's violent temperament as a reason for not awarding the appellant custody and also raised an issue that there was new evidence of domestic violence. Also disturbing was the appellant's own testimony at the hearing where he denied having or ever having an anger problem. Portions of Officer Hudek's testimony regarding the domestic violence incident on August 3, 1998 were hearsay as appellant -14- contends. For instance, the officer should not have testified to what the victim informed him or read into the record the police incident report as these constitute hearsay. See State v. Duelley (Dec. 23, 1999), Hamilton App. No. C-990327, unreported; State v. Canitia, Jr. (June 17, 1993), Cuyahoga App. No. 62492/62639, unreported. No objection was made to the testimony at the hearing. Therefore, absent plain error, any objection to this testimony is waived. We find no plain error here, since where the trial judge acts as the fact finder, it is presumed the judge is capable of disregarding improper testimony. In re Sims (1983), 13 Ohio App.3d 37, 41. Given the above evidence, we cannot say the trial court abused its discretion in finding that permanent custody should be awarded to Family Services. Assignment of Error I and II are overruled. III. THE TRIAL COURT ERRED IN FAILING TO SET FORTH SPECIFIC FINDINGS OF FACT AND CONCLUSION OF LAW. The appellant argues that the trial court erred in failing to issue appellant's requested findings of fact and conclusions of law. R.C. 2151.414(C) requires that when ordering permanent custody, the juvenile court upon the request of either party, shall file a written opinion setting forth its findings of fact and conclusions of law in relation to the proceeding. R.C. 2151.414(C); See, also, In re Meyer (1994), 98 Ohio App.3d 189, 195. In the case herein, in spite of appellant's timely request, the trial court failed to issue findings of fact and conclusions of -15- law. However, the purpose of separately stated findings of fact and conclusions of law is to enable the reviewing court to determine the existence of assigned error. Davis v. Wilkerson (1986), 29 Ohio App.3d 100,101. If the court's ruling or opinion, together with other parts of the trial record, provides an adequate basis upon which an appellate court can decide the legal issues presented, there is substantial compliance with Civ.R. 52. Stone v. Davis (1981), 66 Ohio St.2d 74, 84-85; In re Schoeppner (1976), 46 Ohio St.2d 21, 23; Blevins v. Sorrell (1990), 68 Ohio App.3d 665, 672; Finn v. Krumroy Constr. Co. (1990), 68 Ohio App.3d 480, 487. We find that the trial court's written decision along with the transcript of the hearing sufficiently sets forth a basis for the juvenile court's ruling, and that this Court has an adequate basis on which to decide the appellant's assignments of error. Therefore, the juvenile court's failure to issue findings of fact and conclusions of law is harmless error. Blevins v. Sorrell, supra, at 487. Assignment of Error III is overruled. IV. THE FATHER WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL. The appellant argues that his counsel was ineffective as counsel did not subpoena the mother to attend the hearing nor did counsel subpoena other witnesses to testify to the father's parenting skills with the five children of whom he does have custody and did not present the testimony from the emergency -16- custody hearing where the mother recanted her allegations that the appellant beat her with a plastic baseball bat. The two-part standard set forth in Strickland v. Washington (1984), 466 U.S. 668, for proving ineffective assistance of counsel in criminal cases is also used in cases where the State attempts to gain involuntary and permanent termination of parental rights. In re Wise (1994), 96 Ohio App.3d 619,627. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Additionally, *** a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' Strickland, supra, at 689. See, also, State v. Clayton (1980), 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d, vacated in part on other grounds (1978), 438 U.S. 910. With respect to appellant's argument that his attorney failed to subpoena witnesses who would testify to his parenting skills with the children he currently resides with, there is no evidence presented whether such witnesses were available. Kristin Marshall -17- did state that there were allegations of neglect regarding these children; therefore, we cannot say counsel was ineffective for failing to call such witnesses. Regarding his failure to subpoena the mother it was established that the mother's whereabouts were unknown. Furthermore, it appears that the mother was not able to remain drug free; therefore not calling her as a witness may have been a tactical decision. Finally, there is no evidence that the mother recanted her allegations that appellant hit her with a baseball bat. We do not have a copy of the transcript from the emergency custody hearing at which the recanting is alleged to have occurred. Even if such evidence existed, the mother's credibility would be seriously placed in doubt considering she was in jeopardy of losing all contact with her children due to the pending permanent custody hearing. Therefore, we cannot say that such evidence would have impacted the trial court's decision. Assignment of Error IV is overruled. Judgment affirmed. -18- 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 Court of Common Pleas, Juvenile Court 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. KARPINSKI, P.J., and SPELLACY, J., CONCUR. JAMES M. PORTER 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. 22. 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 .