In re D.C.J. , 2021 Ohio 4395 ( 2021 )

[Cite as In re D.C.J., 2021-Ohio-4395.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.C.J. JUDGES:
Hon. Craig R. Baldwin, P.J.
Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
Case No. 2021CA00090
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2020JCV01200
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 10, 2021
APPEARANCES:
For Plaintiff-Appellee For Mother-Appellant
BRANDON J. WALTENBAUGH AARON KOVALCHIK
Stark County Department of 116 Cleveland Avenue, N.W., Suite #808
Job and Family Services Canton, Ohio 44702
402 2nd Street, S.E.
Canton, Ohio 44702
Stark County, Case No. 2021CA00090 2
Hoffman, J.
{¶1} Appellant Tasha Reeves (“Mother”) appeals the July 19, 2021 Judgment
Entry entered by the Stark County Court of Common Pleas, Family Court Division, which
terminated her parental rights, privileges, and obligations with respect to her infant child
(“the Child”), and granted permanent custody of the Child to appellee Stark County
Department of Jobs and Family Services (“SCDJFS”).
STATEMENT OF THE CASE AND FACTS
{¶2} On November 13, 2020, SCDJFS filed a Complaint, alleging the Child was
dependent and requesting temporary custody be awarded to SCDJFS. SCDJFS filed the
Complaint due to concerns relative to Mother's extensive history with SCDJFS which
included multiple court involvements resulting in Mother's losing legal and permanent
custody of four of her other five children. At the time of the filing of Complaint, the case
involving her fifth child was scheduled for hearing on SCDJFS’s motion for permanent
custody on December 22, 2020. The trial court ultimately granted permanent custody of
the fifth child to SCDJFS. This Court affirmed the trial court’s decision. In re: D.C., 5th
Dist. Stark No. 2021CA00047, 2021-Ohio-2735.
{¶3} The Complaint noted the concerns which gave rise to the actions involving
Mother's other children which included Mother exposing the children to sexual offenders,
failing to protect the children from sexual abuse, deplorable home conditions, Mother's
mental health issues, and her faulty decision making. In 2017, child protective services
in the state of Michigan investigated concerns Mother had exposed her fifth child to a
sexual offender and the fifth child had witnessed domestic violence between the sexual
offender and another individual. Mother moved to Ohio before Michigan child protective
services conducted the final home inspection. Despite ten years of involvement with
Stark County, Case No. 2021CA00090 3
SCDJFS, Mother had not improved her parenting skills and was still struggling with the
same chronic issues. Mother was unable to meet the Child's needs and unable to
maintain a sanitary and safe home environment.
{¶4} Following a shelter care hearing, the trial court placed the Child in the
emergency temporary custody of SCDJFS. The trial court conducted an adjudicatory
hearing on February 9, 2021, and found the Child to be dependent and placed him in the
temporary custody of SCDJFS. The trial court conducted a review hearing on May 7,
2021, and maintained the status quo. SCDJFS filed a motion for permanent custody on
May 7, 2021.
{¶5} The trial court conducted a hearing on SCDJFS’s motion for permanent
custody on July 15, 2021.
{¶6} Kimberly Gabel, an SCDJFS caseworker, testified she was assigned to the
family in February, 2021, but had an historical knowledge of SCDJFS’s involvement with
Mother and her other children. Gabel stated SCDJFS became involved with the Child at
the time of his birth because of the Agency’s decade long involvement with Mother. Gabel
identified the judgment entries granting permanent custody of Mother’s five other children
to SCDJFS.
{¶7} Gabel noted, when Mother advised SCDJFS of her pregnancy with the
Child, Mother reported she was serving as a surrogate for her friend and her friend’s
boyfriend, Terrence Pryor. Genetic testing excluded Pryor as the Child’s father. Mother
did not provide SCDJFS with the names of any other potential fathers for the Child.
{¶8} Mother’s previous case plans required her to engage in comprehensive
mental health treatment, including counseling, medication compliance, and case
Stark County, Case No. 2021CA00090 4
management; engage in substance abuse services; and work with Goodwill through the
parenting skills training program and home-based program. Mother was also required to
maintain appropriate housing and a viable source of income. Gabel indicated Mother has
failed to make any meaningful changes in order to safely parent any of her children. With
respect to the instant action, Mother’s case plan required her to engage in services at
Comquest to address her substance use and sobriety, complete an assessment and
comply with the color code drug screening requirements, engage in comprehensive
mental health treatment, and establish paternity of the Child.
{¶9} Gabel stated Mother did not cooperate with establishing paternity. Mother’s
mental health counselor did not provide Gabel with Mother’s records; therefore, Gabel
was unable to verify whether Mother was being consistent with the services. In February,
2021, Mother completed an initial assessment at Comquest. The evaluator
recommended Mother comply with a twice a week color code screening and continue
mental health services. Mother tested positive for alcohol on February 19, 2021, May 14,
2021, and June 2, 2021. She tested positive for methamphetamines on April 27, 2021,
and May 7, 2021, and positive for cocaine on June 16, 2021. Mother had failed to comply
with drug testing in the month prior to the hearing. Gabel opined Mother had not
demonstrated a commitment to the Child.
{¶10} During the best interest portion of the hearing, Gabel testified the Child is “a
fairly typical child,” and is a “very happy little infant.” Tr. at 21. The Child has some
asymmetry with his face and head, but he was in the process of getting a dock band which
will reshape his head. The asymmetry does not hinder the Child’s growth and
development. The Child is bonded with his foster family. The foster family is ensuring a
Stark County, Case No. 2021CA00090 5
bond between the Child and his siblings who are in other placements. SCDJFS had not
been able to find an appropriate relative placement for the Child, but continued to
investigate possibilities. Gabel had not observed a discernable attachment between
Mother and the Child. Gabel added the Child would benefit from adoption and she did
not think any damage would occur if the trial court granted permanent custody to
SCDJFS.
{¶11} The trial court permitted Attorney Mary Lou Sekula, the Guardian ad Litem
(“GAL”), to make a statement. Attorney Sekula expressed her belief the Child was not
bonded with Mother. She added she did not observe Mother making efforts to build a
bond with the Child. When Attorney Sekula and the caseworker made an unannounced
visit to Mother’s home, they observed three other individuals at the residence. One of the
individuals had an extensive criminal history which included drugs. Attorney Sekula
observed two empty Crown Royal bottles on a table. Mother stated the bottles belonged
to a friend. Attorney Sekula opined the benefits to the Child of a permanent loving home
greatly outweighed any harm.
{¶12} The trial court issued Findings of Fact and Conclusions of Law on July 19,
2021. Via Judgment Entry filed the same day, the trial court terminated Mother’s parental
rights, privileges, and obligations, and granted permanent custody of the Child to
SCDJFS. Specifically, the trial court found Mother had involuntarily lost permanent
custody of other children. The trial court further found Mother failed to prove by clear and
convincing evidence she could provide a legally secure placement as well as adequately
care for the health, welfare, and safety of the Child. The trial court concluded the Child
Stark County, Case No. 2021CA00090 6
should not be placed with Mother and it was in the Child’s best interest to grant permanent
custody to SCDJFS.
{¶13} It is from this judgment entry Mother appeals, raising the following
assignments of error:
I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILD CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT
THIS TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE
GRANTING OF 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).
Stark County, Case No. 2021CA00090 7
I, II
{¶15} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by
some competent, credible evidence going to all the essential elements of the case will not
be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr. (1978), 54 Ohio St.2d 279.
{¶16} 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 the 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.
{¶17} 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, 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 placement agencies for twelve or
Stark County, Case No. 2021CA00090 8
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶18} 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.
{¶19} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶20} R.C. 2151.414(E) provides, in pertinent part:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Stark County, Case No. 2021CA00090 9
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section 2151.353
or 2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent
to those sections, and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the parent can
Stark County, Case No. 2021CA00090 10
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.
***
(16) Any other factor the court considers relevant.
{¶21} As set forth in our statement of the facts and case, supra, SCDJFS has
been involved with the family for over ten years. Despite years of case plan services,
Mother has been unable to adequately and safely care for any of her children. Mother
did not successfully complete her case plan services relative to the Child.
{¶22} The Child is “a fairly typical child,” and is a “very happy little infant.” Tr. at
21. The Child has some asymmetry with his face and head, but he was in the process of
getting a dock band which will reshape his head. The asymmetry does not hinder the
Child’s growth and development. The Child is bonded with his foster family. The foster
family is ensuring a bond between the Child and his siblings who are in other placements.
The on-going caseworker did not observe a discernable attachment between Mother and
the Child. The GAL did not believe the Child was not bonded with Mother. She did not
observe Mother making efforts to build a bond with the Child. Attorney Sekula opined the
benefits to the Child of a permanent loving home greatly outweighed the harm.
{¶23} We find the trial court's finding the Child should not be placed with Mother
within a reasonable period of time is not against the manifest weight of the evidence.
Moreover, pursuant to R.C. 2151.414(E)(11), the trial court was required to find the Child
could not and should not be placed with Mother within a reasonable time because Mother
(1) has had her parental rights involuntarily terminated with respect to the Child's siblings,
Stark County, Case No. 2021CA00090 11
and (2) Mother failed to provide clear and convincing evidence to prove, notwithstanding
the prior termination, she could provide a legally secure permanent placement and
adequate care for the health, welfare, and safety of the Child. We further find the trial
court's finding it was in the Child's best interests to grant permanent custody to SCDJFS
is not against the manifest weight of the evidence.
{¶24} Mother’s first and second assignments of error are overruled.
{¶25} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, J.
Baldwin, P.J. and
Gwin, J. concur