[Cite as In re S. Children, 2012-Ohio-6265.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

S. CHILDREN 

 

JUDGES: 

: Hon. Patricia A. Delaney, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Sheila G. Farmer, J. 

: 

: 

: Case No. 2012-CA-00164 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Juvenile Division, Case 

No. 2012JCV00512 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 31, 2012 

APPEARANCES: 

For-Appellee For-Appellant 

JERRY A. COLEMAN KEVIN J. ANKNEY 

SCDJFS Stark County Public Defendant's Office 

110 Central Plaza South, Ste. 400 200 W. Tuscarawas St., Ste 200 

Canton, OH 44702 Canton, OH 44702 
[Cite as In re S. Children, 2012-Ohio-6265.]

Hoffman, J., 

{¶1} Appellant Donald S. (“Father”) appeals the August 16, 2012 judgment 

entered by the Stark County Court of Common Pleas, Juvenile Division, which 

terminated his parental rights, privileges and responsibilities with respect to his two 

minor children and granted permanent custody of the children to appellee Stark County 

Department of Job and Family Services (“JFS”). 

THE STATEMENT OF THE FACTS AND CASE 

{¶2} Father is the biological father of T.S. and L.S., both born on May 21, 2012. 

On May 23, 2012, JFS filed a complaint alleging dependency and neglect, and seeking 

permanent custody of the two children. At the shelter care hearing, the trial court 

placed the children in the temporary custody of JFS. The parties stipulated to a finding 

of dependency. The children’s mother is not a party to this appeal, but she and Father 

are married and reside together. 

{¶3} JFS has historically been involved with family due to frequent drug and 

alcohol use, inappropriate supervision of the young children, numerous criminal 

convictions, and severe mental health concerns. JFS initially became involved with the 

family in 2006. The child who was the subject of that case (2006JCV1847) was found 

to be dependent, but was eventually returned to Mother after she completed her case 

plan in 2007. 

{¶4} In 2008, the agency again became involved with the family when Father 

was convicted of gross sexual imposition of an eight year old child. The children 

involved in that case (20008JCV00733) were found to be dependent, but Mother 
Stark County, Case No. 2012-CA-00164 3 

completed her case plan and the agency terminated its involvement on December 23, 

2008. 

{¶5} JFS again became involved with the family in 2009 because of Mother’s 

mental health and drug/alcohol abuse. The children in that case (2009JCV00882) again 

were found to be dependent and permanent custody was eventually granted to JFS on 

June 18, 2010. This court affirmed. In re D.D.S. and D.T.S. Minor Children, 5th Dist. 

No. 2010CA00187, 2010-Ohio-5800. 

{¶6} JFS became involved with Mother and Father again in 2011. The child 

involved in that case (2011JCV00574) was found to be dependent and permanent 

custody was granted to JFS on July 7, 2011. This court affirmed. In the Matter of D.S., 

5th Dist. No. 2011CA00166, 2011-Ohio-6379. 

{¶7} The trial court found Father has a criminal record and is currently 

registered as Tier II sex offender working his way through a treatment program at 

Melymbrosia. Father has not completed the program despite having the opportunity to 

do so for nearly two years. Father testified he stopped attending the class because of 

financial reasons and had not re-enrolled in the program. The court found Father 

refuses to acknowledge the severe mental illness of his wife, the children’s mother, 

which could lead to unsafe parenting situations in the future. The trial court found 

neither parent had shown by clear and convincing evidence any change in 

circumstances that would preclude a grant of permanent custody to JFS. 

{¶8} At the time of the hearing, T.S. and L.S. were appropriately three months 

of age and had no medical or psychological problems. They were placed in a licensed 

foster home and the foster parents were interested in adopting the children. The court 
Stark County, Case No. 2012-CA-00164 4 

found the foster parents have formed a bond with both children, and the children are not 

strongly bonded with Father or Mother. 

{¶9} The guardian ad litem presented a written report recommending that 

permanent custody be granted to JFS. 

{¶10} The trial court awarded permanent custody to JFS on August 16, 2012, 

and it is from this judgment entry Father appeals, citing as error: 

{¶11} “I. THE LOWER COURT ERRED PROCEDURALLY BY GRANTING 

PERMANENT CUSTODY AT DISPOSITION PURSUANT TO OHIO REVISED CODE 

2151.353 WITHOUT MAKING A FINDING THAT REASONABLE EFFORTS WERE 

MET, OR NOT REQUIRED, UNDER OHIO REVISED CODE 2151.419. 

{¶12} “II. THE LOWER COURT ERRED BY NOT REQUIRING THE STARK 

COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES TO MAKE REASONABLE 

EFFORTS UNDER OHIO REVISED CODE 2151.419 TO REUNITE THE CHILDREN 

WITH APPELLANT. 

{¶13} “III THE JUDGMENT OF THE LOWER COURT THAT THE BEST 

INTERESTS OF THE CHILD (sic) WOULD BE SERVED BY GRANTING PERMANENT 

CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE 

EVIDENCE.” 

{¶14} This case comes to us on the expedited calendar and shall be considered 

in compliance with App. R. 11.2 (C). 

I. 

{¶15} In his first assignment of error, Father argues the trial court erred 

procedurally by granting permanent custody at the dispositional hearing without making 
Stark County, Case No. 2012-CA-00164 5 

a finding that either reasonable efforts were met, or were not required under R.C. 

2151.419. 

{¶16} R.C. 2151.419 requires a court at the disposition hearing following an 

adjudication of dependency, neglect or abuse to determine if reasonable efforts have 

been made to return the children to the parents, and if not, the court determines if 

reasonable efforts were not required. The statute requires the court to find that the 

agency is not required to make reasonable efforts to prevent the removal of the child 

from the child's home, eliminate the continued removal of the child from the child's 

home, and return the child to the child's home if, inter alia, the parent from whom the 

child is removed has had parental rights involuntarily terminated with respect to a sibling 

of the child. R.C. 2151.419(A)(2)(e). 

{¶17} The trial court made extensive findings regarding the family history and 

specifically found Father had involuntarily lost permanent custody of several children in 

prior cases. This fact has never been disputed. However, the trial court did not make a 

specific finding reasonable efforts were not necessary. This court has previously held it 

is not reversible error to omit a specific determination JFS was not required to make 

reasonable efforts where the facts and circumstances would support such a finding. In 

Re: Brown, 5th Dist. No. 2008 CA 00029, 2008-Ohio-3655, ¶ 26. 

{¶18} The first assignment of error is overruled. 

II. 

{¶19} In his second assignment of error, Father cites R.C. 2151.419 (A)(3), 

which provides “At any hearing in which the court determines whether to return a child 

to the child’s home, the court may issue an order that returns a child in situations in 
Stark County, Case No. 2012-CA-00164 6 

which the conditions described in divisions (A)(2)(a) to (e) of this section.” Father 

asserts the statute permits the trial court to return these children to his home, even 

though he had his parental rights involuntarily terminated as to other children previously. 

{¶20} The statute makes the decision to return the children discretionary, not 

mandatory. We find the trial court did not err in not ordering JFS to make reasonable 

efforts to return these children to their home. 

{¶21} The second assignment of error is overruled. 

III. 

{¶22} In his third assignment of error, Father argues the trial court’s finding the 

best interest of the children would be served by granting JFS permanent custody was 

against the manifest weight and sufficiency of the evidence. 

{¶23} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, the Ohio 

Supreme Court distinguished the terms “sufficiency” and “weight” in civil cases, 

declaring that “manifest weight” and “legal sufficiency” are “both quantitatively and 

qualitatively different,” in the same manner the Supreme Court previously held 

regarding criminal cases in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 

(1997), paragraph two of the syllabus. The court found sufficiency of the evidence to be 

“a term of art meaning that legal standard which is applied to determine whether the 

case may go to the jury or whether the evidence is legally sufficient to support the jury 

verdict as a matter of law. * * * In essence, sufficiency is a test of adequacy.” Eastley, 

¶11, citing Thompkins, supra at 386, 678 N.E.2d 541, and Black’s Law Dictionary 1433 

(6th Ed. 1990). 
Stark County, Case No. 2012-CA-00164 7 

{¶24} By contrast, weight of the evidence concerns “the inclination of the greater 

amount of credible evidence, offered in a trial, to support one side of the issue rather 

than the other. It indicates clearly to the jury that the party having the burden of proof 

will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find 

the greater amount of credible evidence sustains the issue which is to be established 

before them. Weight is not a question of mathematics, but depends on its effect in 

inducing belief.” Eastley at ¶12, citing Thompkins, supra at 387, 678 N.E.2d 541, and 

Black’s, supra at 1594. (Emphasis sic.) 

{¶25} Permanent custody cases, require the evidence to meet the clear and 

convincing standard. The Ohio Supreme Court has defined “clear and convincing 

evidence” as the measure or degree of proof that will produce in the mind of the trier of 

fact a firm belief or conviction as to the allegations sought to be established. It is 

intermediate, being more than a mere preponderance, but not to the extent of such 

certainty as required beyond a reasonable doubt as in criminal cases. In re: Estate of 

Haynes, 25 Ohio St.3d 101, 103–04, 495 N.E.2d 23(1986); see, also, State v. Schiebel, 

55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990). 

{¶26} In determining the best interest of the child at a permanent custody 

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors, 

including, but not limited to, the following: (1) the interaction and interrelationship of the 

child with the child's parents, siblings, relatives, foster parents and out-of-home 

providers, and any other person who may significantly affect the child; (2) the wishes of 

the child as expressed directly by the child or through the child's guardian ad litem, with 

due regard for the maturity of the child; (3) the custodial history of the child; and (4) the 
Stark County, Case No. 2012-CA-00164 8 

child's need for a legally secure permanent placement and whether that type of 

placement can be achieved without a grant of permanent custody. 

{¶27} The trial court found the children are with foster parents who are 

interested in adopting them. The court found the foster parents are very interactive with 

the children and formed a bond with both children, and the children were not strongly 

bonded to either biological parent. The guardian ad litem recommended permanent 

custody be granted to JFS. 

{¶28} The court found the children deserved to be in a stable, loving 

environment where they can thrive and have their needs met on a daily basis. The 

court explained that extending temporary custody of the children to allow the parents to 

work on their case plan was not in the children’s best interest, because it appears from 

the evidence the parents will not be able to remedy the initial problems in the case at 

any time within the foreseeable future. The court concluded it was in the best interest of 

the children to grant permanent custody to JFS for purposes of adoption. 

{¶29} Based upon the foregoing, we find the trial court’s finding it was in the 

children’s best interest to grant permanent custody was not against the manifest weight 

or based upon insufficient evidence. 

{¶30} The third assignment of error is overruled. 
Stark County, Case No. 2012-CA-00164 9 

{¶31} The judgment of the Stark County Court of Common Pleas, Juvenile 

Division, is affirmed. 

By Hoffman, J., 

Delaney, P.J., and 

Farmer, J., concur 

 s/ William B. Hoffman ________________

 HON. WILLIAM B. HOFFMAN 

 s/ Patricia A. Delaney ________________

 HON. PATRICIA A. DELANEY 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

WBH:clw 1211
[Cite as In re S. Children, 2012-Ohio-6265.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

S. CHILDREN : 

 : 

 : 

 : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : 

 : CASE NO. 2012-CA-00164 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Stark County Court of Common Pleas, Juvenile Division, is affirmed. Costs to 

Appellant. 

 s/ William B. Hoffman ________________

 HON. WILLIAM B. HOFFMAN 

 s/ Patricia A. Delaney ________________

 HON. PATRICIA A. DELANEY 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER