[Cite as In re S.C., 2012-Ohio-3432.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

 : JUDGES: 

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

 : Hon. W. Scott Gwin, J. 

 : Hon. Sheila G. Farmer, J. 

IN RE S.C. : 

 : Case No. 12AP040026 

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 : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court 

of Common Pleas, Juvenile Division, Case 

No. 11JN00599 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: July 17, 2012 

APPEARANCES: 

For Parents-Appellant: For TCJFS-Appellee: 

 

JOHN A. GARTRELL DAVID W. HAVERFIELD 

153 N. Broadway 389 – 16th St., SW 

New Philadelphia, OH 44663 New Philadelphia, OH 44663 

 

 KAREN DUMMERMITH, GAL 

 349 E. High Ave. 

 P.O. Box 494 

 New Philadelphia, OH 44663 
Delaney, P.J. 

{¶1} Parents-Appellants A.C. and R.C. appeal the March 1, 2012 judgment 

entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, to grant 

permanent custody of their child to Appellee Tuscarawas County Job and Family 

Services (“TCJFS”). 

FACTS AND PROCEDURAL HISTORY 

{¶2} This appeal pertains to the permanent custody disposition of S.C., 

whose date of birth is November 28, 2011. Appellant R.C. is the natural mother of the 

child and Appellant A.C. is the natural father of the child (“Parents”). 

{¶3} On November 29, 2011, TCJFS filed a dependency/permanent custody 

complaint regarding S.C. S.C. was placed in the temporary custody of TCJFS at that 

time. The complaint alleged that eight of S.C.’s siblings had previously been ordered 

into the permanent custody of TCJFS.1

 TCJFS alleged the Parents failed to alleviate 

the concerns that led to the finding of dependency and neglect and failed to engage in 

case plan services, resulting in the trial court granting permanent custody of all eight 

children to TCJFS. TCJFS prepared a case plan that did not include a reunification 

plan for either parent with the child. 

{¶4} An adjudicatory hearing was held on the dependency complaint on 

January 24, 2012. The trial court found S.C. to be a dependent child by judgment 

entry on January 27, 2012. Temporary custody with TCJFS was maintained. 

{¶5} On January 30, 2012, TCJFS filed a motion to determine the need for the 

agency to expend reasonable efforts to reunify S.C. with the Parents. 

 

1

 This Court has examined the prior permanent custody decisions in In re Craig, 5th Dist. No. 2007 AP 

03 0017, 2007-Ohio-3726 and In re Craig, 5th Dist. No. 2008 AP 05 0030, 2008-Ohio-4251. 
{¶6} An evidentiary hearing was held on the permanent custody complaint on 

February 21, 2012. The trial court granted permanent custody in favor of TCJFS on 

March 1, 2012. The trial court additionally found therein that pursuant to R.C. 

2151.419, TCJFS was not required to expend reasonable efforts to reunify S.C. with 

the Parents. 

{¶7} It is from this decision the Parents now appeal. 

ASSIGNMENT OF ERROR 

{¶8} The Parents raises one Assignment of Error: 

{¶9} “THE TRIAL COURT’S DECISION IN FINDING S.C. TO BE [A] 

DEPENDENT CHILD PURSUANT TO ORC 2151.04(D) AND THE DECISION TO 

TERMINATE THE APPELLANT’S PARENTAL RIGHTS AND GRANT PERMANENT 

CUSTODY TO TUSCARAWAS COUNTY JOB AND FAMILY SERVICES IS AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE PURSUANT TO R.C. 2151.414 AND 

ERRED IN DETERMINING THAT JOB AND FAMILY SERVICES WAS NOT 

REQUIRED TO EXPEND REASONABLE EFFORTS TOWARDS REUNIFICATION 

BEFORE GRANTING PERMANENT CUSTODY.” 

ANALYSIS

DEPENDENCY FINDING 

{¶10} The Parents first challenge the underlying dependency finding, 

maintaining the evidence presented did not support the same. We disagree. 

{¶11} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re 

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 

405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent's interest in the care, 
custody and management of his or her child is “fundamental.” Id.; Santosky v. 

Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The permanent 

termination of a parent's rights has been described as, “ * * * the family law equivalent 

to the death penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 

N.E.2d 45 (1991). Therefore, parents “must be afforded every procedural and 

substantive protection the law allows.” Id. 

{¶12} An agency may request permanent custody of a child as part of its 

original abuse, neglect, or dependency complaint. R.C. 2151.353(A)(4). A trial court 

should only grant permanent custody as the initial disposition in extreme situations 

where reunification is not possible. In re Croston, 4th Dist. No. 95CA1692 (March 21, 

1996); In re Smart, 21 Ohio App.3d 31, 35, 486 N.E.2d 147 (10th Dist. 1984). 

{¶13} Proceedings involving the termination of parental rights must be 

bifurcated into separate adjudicatory and dispositional hearings. R.C. 2151.35, Juv.R. 

29 and 34. See also, In re Baby Girl Baxter, 17 Ohio St.3d 229, 479 N.E.2d 257 

(1985). In the adjudicatory phase, a child must be found to be abused, neglected or 

dependent. 

{¶14} In pertinent part, R.C. 2151.04(D) defines a dependent child as any child 

to which both of the following apply: (1) “The child is residing in a household in which a 

parent, guardian, custodian or other member of the household committed an act that 

was the basis for an adjudication that a sibling of the child or any other child who 

resides in the household is an abused, neglected or dependent child;” and (2) who 

“[B]ecause of the circumstances surrounding the abuse, neglect or dependency of the 

sibling or other child and the other conditions in the household of the child, the child is 
in danger of being abused or neglected by the parent, guardian, custodian, or member 

of the household.” R.C. 2151.04(D)(1) and (2). 

{¶15} “Ohio courts have held that newborn infants can be dependent before 

they have ever been released into their parents' custody.” In re Pieper Children, 85 

Ohio App.3d 318, 325, 619 N.E.2d 1059 (12th Dist. 1993), See also, In re Bishop, 36 

Ohio App.3d 123, 124, 521 N.E.2d 838 (5th Dist. 1987). Essentially, a prospective 

finding of dependency is appropriate where a child has not been in the custody of the 

parents but circumstances demonstrate that to allow the parents to have custody of 

the child would threaten the child's health and safety. “ ‘A juvenile court should not be 

forced to experiment with the health and safety of a newborn baby where the state can 

show, by clear and convincing evidence, that placing the child in such an environment 

would be threatening to the health and safety of that child.’“ In re Pieper Children, 

supra, quoting In re Campbell, 13 Ohio App.3d 34, 36, 468 N.E.2d 93, 96 (12th Dist. 

1983). 

{¶16} The trial court’s dependency decision was based on a finding that TCJFS 

had been granted permanent custody of eight prior born children. The evidence 

further demonstrates that in the prior cases, the Parents failed to complete their case 

plan objectives, such as addressing concerns with poor hygiene, an unsafe home 

environment, poor parenting skills, and domestic violence. As in In re Craig, 5th Dist. 

No. 2007 AP 03 0017, 2007-Ohio-3726, the trial court could find that the nature and 

circumstances of the Parents’ situation would place a newborn at risk. Therefore, 

pursuant to R.C. 2151.04, the trial court did not abuse its discretion in adjudicating the 

child dependent. 
MANIFEST WEIGHT 

{¶17} The Parents next contend the trial court’s decision to grant permanent 

custody was against the manifest weight of the evidence. We disagree. 

{¶18} Once reunification efforts have either been waived, unsuccessfully 

completed or exhausted without progress, R.C. 2151.353(A)(4) states in pertinent part 

that if a child has been adjudicated abused, neglected or dependent, the court may 

“commit the child to the permanent custody of a public children service agency or 

private child placing agency, if the court determines in accordance with division (E) of 

section 2151.414 of the Revised Code that the child cannot be placed with one of the 

child's parents within a reasonable period of time or should not be placed with either 

parent and determines in accordance with division (D) of section 2151.414 [2151.41.4] 

of the Revised Code that the permanent commitment is in the best interest of the 

child.” R.C. 2151.353(A)(4). 

{¶19} With respect to the first requirement, R.C. 2151.414(E) sets forth a list of 

16 possible predicate findings. One of those findings must be established prior to a 

judicial conclusion that a child cannot or should not be placed with the child's parent. 

R.C. 2151.414(E)(11) states that, in determining whether a child cannot be placed with 

a parent within a reasonable period of time or should not be placed with a parent, the 

court shall determine if the following exists: “The parent has had parental rights 

involuntary terminated pursuant to section or sections 2151.343 or 2151.415 of the 

Revised Code with respect to a sibling of the child.” R.C.2151.414(E)(11). 
{¶20} The statute also enumerates certain criteria for evaluating whether 

permanent custody with a children's services agency is in the child's best interests. 

R.C. 2151.414(D) requires a court to consider the following factors: 

(1) the interaction and interrelationship of the child with the child's 

parents, siblings, relatives, foster care givers 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, including whether the child has 

been in the temporary custody of one or more public children services 

agencies or private child placing agencies for twelve or more months of a 

consecutive twenty-two-month period ending on or after March 18, 1999; 

(4) The child's need for a legally secure permanent placement and 

whether that type of placement can be achieved without a grant of 

permanent custody to the agency; * * * 

(5) Whether any of the factors in division (E)(7) to (11) of this section 

apply in relation to the parents and the child. 

{¶21} A trial court's permanent custody finding, which is supported by clear and 

convincing evidence, will not be overturned as against the manifest weight of the 

evidence if the record contains competent credible evidence by which the court could 

have formed a firm belief or conviction that the essential statutory elements for a 

termination of parental rights have been established. In re S et al., 102 Ohio App.3d 

338, 344-345, 657 N.E.2d 307 (1995); Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 
118 (1954), paragraph three of the syllabus. Additionally, “[e]very reasonable 

intendment and every reasonable presumption must be made in favor of the judgment 

and the finding of facts.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 

N.E.2d 1273 (1984). 

{¶22} As stated above, the parental rights as to the Parents’ eight prior children 

have been involuntarily terminated. The children are siblings of S.C. 

{¶23} Elizabeth Bendetto, agency case manager who handled several prior 

cases concerning the Parents and their other children, testified as to the concerns in 

the prior cases that involved inadequate home conditions, mental health and stability 

problems of the Parents, and domestic violence in the home. (T. 5.) During the prior 

cases, the Parents never completed their case plans. (T. 6.) Bendetto testified that 

the Parents completed the Goodwill Parenting Program in 2008, not as part of a case 

plan, but because they were attempting to secure custody of another child. (T. 47.) 

A.C. also participated in court-ordered anger management counseling due to an 

assault conviction in the Tuscarawas County Common Pleas Court. (T. 23.) 

{¶24} S.C. is placed in a foster to adopt home with the child’s biological 

siblings. (T. 39.) Bendetto testified the foster family was in a position to meet the 

child’s long term needs and provide the child a permanent home. Id. 

{¶25} The guardian ad litem recommended that permanent custody be granted 

to TCJFS. 

{¶26} The trial court’s findings that the child could not be placed with the 

Parents within a reasonable period of time or should not be placed with the parents 
and that the best interests of the child would be served by granting permanent custody 

to TCJFS were supported by clear and convincing evidence. 

REASONABLE EFFORTS 

{¶27} The Parents finally challenge the trial court’s decision, pursuant to R.C. 

2151.419, that the agency was not required to expend reasonable efforts to reunify 

S.C. with the Parents. 

{¶28} Pursuant to R.C. 2151.419, the agency which has removed the child 

from the home must have made reasonable efforts to prevent the removal of the child 

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

make it possible for the child to return home safely. In re Hess, 5th Dist. 

Nos.2007CA00262, 2007CA00261, 2008-Ohio-1920, ¶ 46. 

{¶29} However, R.C. 2151.419(A)(2) states in pertinent part as follows: 

If any of the following apply, the court shall make a determination 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: 

* * * 

(e) The parent from whom the child was removed has had parental rights 

involuntarily terminated pursuant to section 2151.353, 2151.414, or 

2151.415 of the Revised Code with respect to a sibling of the child. 

{¶30} The Parents nonetheless direct this Court to R.C. 2151.419(A)(3), which 

states: “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 the child in situations in which 

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

{¶31} Parents further cite to the decision of the Sixth District Court of Appeals 

in In re Nicholas P., 169 Ohio App.3d 570, 2006-Ohio- 6213, 863 N.E.2d 1102 (6th 

Dist.) which states that R.C. 2151.419(A)(3) “provides the trial court with the 

discretion to override the mandate of R.C. 2151.419(A)(2)(e).” Id. at ¶ 36. 

{¶32} In In re Craig, 5th Dist. No. 2007 AP 03 0017, 2007-Ohio-3726, we 

referenced the Nicholas P. decision, although we did not expressly adopt the 

“override” holding therein. In In re Craig, 5th Dist. 2008 AP 05 0030, 2008-Ohio-4251, 

we reviewed the identical reasonable efforts argument under similar factual 

circumstances. In that case, we held the trial court properly concluded that TCJFS 

was not required to make reasonable efforts to prevent and eliminate the removal of 

S.C. from his home and to return the child to his home. 

{¶33} The same facts and circumstances are present in the case sub judice. 

We accordingly follow the precedent set in In re Craig, 5th Dist. No. 2007 AP 03 0017, 

2007-Ohio-3726 and In re Craig, 5th Dist. 2008 AP 05 0030, 2008-Ohio-4251 to find 

that TCJFS was not required to make reasonable efforts to prevent and eliminate the 

removal of S.C. from her home and to return the child to her home.
CONCLUSION 

{¶34} For the foregoing reasons, the Parents’ sole Assignment of Error is 

overruled. 

{¶35} The judgment of the Tuscarawas County Court of Common Pleas, 

Juvenile Division, is affirmed. 

By: Delaney, P.J. 

Gwin, J. and 

Farmer, J. concur. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER 

PAD:kgb 

 IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE S.C. 

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 JUDGMENT ENTRY 

 Case No. 12AP040026 
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 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Tuscarawas County Court of Common Pleas, Juvenile Division is AFFIRMED. Costs 

assessed to Appellants. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER