In re J.G. , 2021 Ohio 1479 ( 2021 )

[Cite as In re J.G., 2021-Ohio-1479.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: J.G. : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
:
:
: Case No. 2021 CA 00002
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No.2019JCV01271
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 28, 2021
APPEARANCES:
For - SCJFS For - Mother
JAMES B. PHILLIPS KELLY S. MURRAY
300 Market Avenue North 800 Courtyard Center
Canton, OH 44702 116 Cleveland Avenue NW
Canton, OH 44702
[Cite as In re J.G., 2021-Ohio-1479.]
Gwin, J.
{¶1} Appellant-mother [“Mother”] appeals the December 16, 2020 Judgment
Entry of the Stark County Court of Common Pleas, Family Court Division, which
terminated her parental rights with respect to her minor child, J.G.1 (b. Apr. 15, 2019) and
granted permanent custody of the child to appellee, Stark County Department of Jobs
and Family Services (hereinafter “SCJFS”).
Facts and Procedural History
{¶2} On December 17, 2019, SCJFS filed a complaint alleging dependency and
or neglect of J.G. Mother, M.G., is the biological mother of the child. On December 18,
2019, the trial court found probable cause existed for SCJFS to be involved and placed
the child into emergency temporary custody with SCJFS. On December 30, 2019, a
Guardian Ad Litem [“GAL”] was appointed for the child. On January 15, 2020, an
evidentiary hearing was set for February 28, 2020 to determine adjudication and
disposition. On February 21, 2020, the GAL filed a report and recommended this child
be placed in the temporary custody of SCJFS. On March 3, 2020, Mother stipulated to
a finding of dependency at the adjudicatory hearing. A disposition hearing was held
that same day and the court placed the child in the temporary custody of SCJFS. The
court approved and adopted the case plan filed on January 23, 2020.
{¶3} On June 6, 2020, a dispositional review was held where the trial court was
unable to find compelling reasons to preclude a request for permanent custody to SCJFS
due to the lack of reduction of the risk. On October 20, 2020, SCJFS filed a motion for
permanent custody. On November 13, 2020, a dispositional review was held and again
1 See, Juv. R. 5; OH ST Supp. R. 44(H) and 45(D) concerning the use of personal identifiers.
Stark County, Case No. 2021 CA 00002 3
the court found no compelling reasons to preclude a request for permanent custody. At
that time, the finding was made due to the pending permanent custody hearing on
December 8, 2020.
{¶4} On December 8, 2020, the permanent custody hearing was held pursuant
to RC. 2151.414.
Permanent Custody trial.
{¶5} Mother did not appear at the permanent custody hearing; however, she
was represented by appointed counsel.
{¶6} The ongoing caseworker, Carmona Griffin, testified that J.G. was originally
placed in the emergency temporary custody of the SCJFS on December 16, 2019 and had
remained in the custody of the SCJFS since that date. The child was found dependent as
to all parents on February 28, 2019 and at on the date of the permanent custody trial the
child had been in the temporary custody of the SCJFS for just short of a year.
{¶7} Ms. Griffin testified that Mother had services on her case plan that required her
to complete a substance abuse assessment at CommQuest, complete an anger
management assessment at CommQuest, submit to random drug testing on the color code
system, and successfully complete the Goodwill Parenting Program. Mother only
completed the substance abuse assessment at CommQuest. Mother failed to follow
through with the recommended treatment. Ms. Griffin testified that Mother had left the
state and was presently residing in the state of Alabama. Ms. Griffin testified that Mother
last visited J.G. on February 6, 2020.
{¶8} During the Best Interest part of the hearing, Ms. Griffin testified that the
child had no medical issues or delays. J.G. had been placed in his current foster home
Stark County, Case No. 2021 CA 00002 4
in December 2019. Ms. Griffin testified that the child has a significant bond with the foster
parent as she is the only mother J.G. has known. Ms. Griffin testified that there is no
bond between the child and Mother. Ms. Griffin testified that she believed that it was in
J.G.’s best interest for permanent custody to be granted.
{¶9} The GAL for the child, submitted a report that recommended that permanent
custody be granted to the SCJFS.
{¶10} On December 16, 2020, the trial court issued its findings of fact and
conclusions of law granting permanent custody of J.G. to SCJFS and terminating Mother’s
parental rights. The trial court found that J.G. could not and should not be placed with
Mother at this time or within a reasonable period of time, the child had been abandoned
by Mother, and permanent custody was in J.G.'s best interest.
Assignment of Error
{¶11} Mother raises one Assignment of Error,
{¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT THE CHILD COULD
NOT BE PLACED WITH MOTHER WITHIN THE FORESEEABLE FUTURE.”
Law and analysis
Standard of Appellate Review
{¶13} “[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
Stark County, Case No. 2021 CA 00002 5
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(6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id. An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1).
{¶14} The Ohio Supreme Court has delineated our standard of review as follows,
“clear and convincing evidence” is “[t]he 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. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St. 3d 101, 103-
104, 495 N.E.2d 23 (1986). In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118
(1954), the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
Stark County, Case No. 2021 CA 00002 6
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added). A court of appeals will affirm the trial court's
findings “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 Adkins, 5th Dist. Nos.
2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.
Requirements for Permanent Custody Awards
{¶15} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶16} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
Stark County, Case No. 2021 CA 00002 7
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) 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, or 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 and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶17} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Stark County, Case No. 2021 CA 00002 8
1. Abandonment – R.C. 2151.414(B)(1)(b).
{¶18} In the case at bar, the trial court found, by clear and convincing evidence,
that Mother abandoned the child pursuant to R.C. 2151.414(B)(1)(b). Pursuant to R.C.
2151.011(C), a child is “presumed abandoned when the parties of the child have failed to
visit or maintain contact with the child for more than ninety days, regardless of whether
the parents resume contact with the child after that period of ninety days.”
{¶19} The trial court found that Mother had abandoned J.G. by virtue of her lack
of contact, lack of bonding, failure to support, and failure to attempt any form of
reunification.
{¶20} Competent, credible evidence supports the trial court’s findings. In the case
at bar, Mother’s last visit with J.G. was February 6, 2020. The motion for permanent
custody was filed October 26, 2020. Thus, one hundred eighty-three days had elapsed
without contact between Mother and J.G. before the filing of the motion for permanent
custody. Mother has left Ohio and is now residing in Alabama. Mother has not disputed
these facts.
{¶21} A trial court’s finding of abandonment under R.C. 2151.414(B)(1)(b) will
satisfy the first prong of the permanent custody test, independent of a finding under R.C.
2151.414(B)(1)(a) [Parental Placement within a Reasonable Time], allowing the court to
move on to the second prong of considering whether the grant of permanent custody to
the agency is in the best interest of the child. In re A.M., 5th Dist. Stark No. 2013 CA
00113, 2013-Ohio-4152.
Stark County, Case No. 2021 CA 00002 9
2. The Best Interest of the Child.
{¶22} We have frequently noted, “[t]he 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.” In re Mauzy
Children, 5th Dist. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re
Awkal, 85 Ohio App. 3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).
{¶23} 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; (4) the child’s need for a
legally secure placement and whether that type of placement can be achieved without a
grant of permanent custody; and (e) whether any of the factors in divisions (E)(7) to (11)
of this section apply in relation to the parents and child. No one element is given greater
weight or heightened significance. In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862
N.E.2d 816.
{¶24} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. The willingness of a relative to care
for the child does not alter what a court considers in determining permanent custody. In
re Patterson, 134 Ohio App. 3d 119, 730 N.E.2d 439 (9th Dist. 1999); In re Adoption of
Stark County, Case No. 2021 CA 00002 10
Ridenour, 61 Ohio St. 3d 319, 574 N.E.2d 1055 (1991). Accordingly, a court is not required
to favor a relative if, after considering all the factors, it is in the child’s best interest for the
agency to be granted permanent custody. In re R.P. and I.S., 5th Dist. Tuscarawas No.
2011AP050024, 2011-Ohio-5378.
{¶25} In the present case, the trial court's decision indicates it considered the best
interest factors. The trial court concluded the child's need for legally secure placement
could not be achieved without awarding permanent custody to SCJFS. Upon review of
the record, it is clear that the record supports the trial court's finding that granting the
motion for permanent custody is in J.G.’s best interest.
{¶26} J.G. had been placed in his current foster home since December 2019, which
is basically his entire life. Ms. Griffin testified that the child has a significant bond with the
foster parent as she is the only mother he has known. Ms. Griffin testified that there is no
bond between the child and Mother. The foster parent has indicted that she wished to
adopt the child if permanent custody was granted. Ms. Griffin testified that she believed
that it was in J.G. best interest for permanent custody to be granted. The GAL presented
a written report to the trial court that recommended permanent custody be granted to the
SCDJFS.
Conclusion
{¶27} For these reasons, we find that the trial court’s determination that Appellant-
Mother had abandoned J.G. was based upon competent credible evidence and is not
against the manifest weight or sufficiency of the evidence. We further find that the trial
court’s decision that permanent custody to SCJFS was in the child's best interest was
Stark County, Case No. 2021 CA 00002 11
based upon competent, credible evidence and is not against the manifest weight or
sufficiency of the evidence.
{¶28} Because the evidence in the record supports the trial court’s judgment, we
overrule Appellant-Mother’s sole assignment of error, and affirm the decision of the Stark
County Court of Common Pleas, Family Court Division.
By: Gwin, J.,
Baldwin, P.J., and
Hoffman, J., concur