In re T.A.R. , 2022 Ohio 1851 ( 2022 )

[Cite as In re T.A.R., 2022-Ohio-1851.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: T.A.R. : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
:
:
: Case No. 21-CA-000033
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
20-JC-00247
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 2, 2022
APPEARANCES:
For Appellant-Father For Appellee-Agency
ANDREW E. RUSS MELISSA M. WILSON
P.O. Box 520 274 Highland Avenue
Pickerington, OH 43147 Cambridge, OH 43725
MARK A PERLAKY Guardian ad Litem
120 North Broadway Street
Cambridge, OH 43725 CHERYL GADD
801 Wheeling Avenue, #D101
For Mother Cambridge, OH 43725
JOSHUA W. PAMMER
17 North 8th Street
Cambridge, OH 43725
Guernsey County, Case No. 21-CA-000033 2
Wise, Earle, P.J.
{¶ 1} Appellant-father, E.G., appeals the December 16, 2021 journal entry of the
Court of Common Pleas of Guernsey County, Ohio, Juvenile Division, terminating his
parental rights and granting permanent custody of his child to appellee, Guernsey County
Children Services.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 21, 2020, appellee filed a complaint alleging a child to be
dependent: T.A.R. born in September 2020. Father is E.G., appellant herein, determined
on April 13, 2021; mother is T.R. Appellee sought emergency temporary custody of the
child which was granted effective September 19, 2020.
{¶ 3} Adjudicatory and dispositional hearings were held on December 14, 2020.
The trial court adjudicated the child dependent. By journal entry filed January 11, 2021,
the trial court continued appellee's temporary custody of the child.
{¶ 4} On June 22, 2021, appellee filed a motion for permanent custody of the
child. It was alleged that father was incarcerated and mother had substance abuse issues
and was noncompliant with the case plan. A hearing was held on December 6, 2021. By
journal entry filed December 16 2021, the trial court terminated the parents' parental rights
and granted appellee permanent custody of the child.
{¶ 5} Appellant-father filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 6} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS
OF THE CHILD IS SERVED BY GRANTING PERMANENT CUSTODY TO THE
Guernsey County, Case No. 21-CA-000033 3
GUERNSEY COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES IS AGAINST
THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
II
{¶ 7} "THE TRIAL COURT ERRED IN ALLOWING THE MOTION FOR
PERMANENT CUSTODY TO PROCEED OR GRANTING THE MOTION DUE TO A
LACK OF REASONABLE EFFORTS."
III
{¶ 8} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT PROPERLY
CONSIDERING THE BEST INTERESTS OF THE CHILD."
I, II, III
{¶ 9} In his three assignments of error, appellant claims the trial court abused its
discretion in finding the best interest of the child would be best served by granting
permanent custody of the child to appellee against the manifest weight and sufficiency of
the evidence. Appellant further claims a lack of reasonable efforts. We disagree with
appellant's arguments.
{¶ 10} Sufficiency of the evidence "is a test of adequacy. Whether the evidence is
legally sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 11} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
Guernsey County, Case No. 21-CA-000033 4
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). In Thompkins, supra, at 387, quoting Black's
Law Dictionary 1594 (6th Ed.1990), the Supreme Court of Ohio explained the following:
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." (Emphasis sic.)
{¶ 12} In weighing the evidence however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.
{¶ 13} R.C. 2151.414(B)(1) states permanent custody may be granted if the trial
court determines, by clear and convincing evidence, that it is in the best interest of the
child and:
(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.
Guernsey County, Case No. 21-CA-000033 5
(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.
(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 * * *.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
{¶ 14} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established."
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
"Where the degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof." Cross at 477.
{¶ 15} R.C. 2151.414(E) sets out the factors relevant to determining whether a
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Said section states in pertinent part to appellant the following:
Guernsey County, Case No. 21-CA-000033 6
(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
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.
Guernsey County, Case No. 21-CA-000033 7
(12) The parent is incarcerated at the time of the filing of the motion
for permanent custody or the dispositional hearing of the child and will not
be available to care for the child for at least eighteen months after the filing
of the motion for permanent custody or the dispositional hearing.
(16) Any other factor the court considers relevant.
{¶ 16} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interest of a child:
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division (A)(4)
or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised
Code, the court shall consider all relevant factors, including, but not limited
to, the following:
(a) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
(b) 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;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
Guernsey County, Case No. 21-CA-000033 8
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶ 17} During the hearing, the trial court heard from the ongoing caseworker,
appellant's girlfriend, and the guardian ad litem. Appellant appeared by audio and video
from Chillicothe Correctional Institution and did not testify.
{¶ 18} The caseworker testified the child was born addicted to drugs. T. at 18.
Mother was noncompliant with the case plan and appellant was never placed on the case
plan because he was incarcerated. T. at 21-25. Appellant is expected to be released in
March 2023. T. at 26. Appellant has not had any contact with the child. Id.{¶ 19} Appellant's girlfriend met him online. T. at 49. She has a child with
appellant and lives in West Virginia. T. at 41, 44. She was interested in kinship
placement, but had limited contact with the agency. T. at 45-46. She was unaware that
appellant had been charged with domestic violence in February 2021. T. at 51. The child
does not have any relationship with the girlfriend. T. at 30. The agency was concerned
about the girlfriend having a relationship with appellant given his felonies. Id.Guernsey County, Case No. 21-CA-000033 9
{¶ 20} The guardian ad litem had a "huge concern" with the girlfriend's relationship
with appellant. T. at 57. The guardian had concerns with her judgment given appellant's
criminal history. Id.{¶ 21} In its December 16, 2021 journal entry, the trial court found "[n]either parent
has been able to care for the child and there were no kinship placements available or
appropriate for the minor child." The trial court found mother has not attempted any of
the requirements of the case plan and appellant "has been incarcerated and will be
incarcerated until March 8, 2023." Appellant has never visited or communicated with the
child. The trial court questioned appellant's girlfriend's judgment as it relates to
relationships given the facts presented. She has never met the child. The trial court's
findings are amply supported in the record.
{¶ 22} As for best interest, the trial court found the child was in need of a legally
secure placement which can only be obtained through a grant of permanent custody to
appellee. The child remains in the same foster home since birth and "is thriving in this
environment." The child has developed a bond with the foster parents and has done very
well in their home. T. at 27.
{¶ 23} The guardian ad litem recommended granting permanent custody of the
child to appellee because the child "has had no parental interest throughout the life of this
case" and "deserves permanency." T. at 56. The guardian agreed permanent custody
to appellee was in the child's best interest. Id.{¶ 24} Upon review, we find sufficient clear and convincing evidence to support the
trial court's decision to terminate appellant's parental rights and grant appellee permanent
custody of the child, and do not find any manifest miscarriage of justice.
Guernsey County, Case No. 21-CA-000033 10
{¶ 25} Assignments of Error I, II, and III are denied.
{¶ 26} The judgment of the Court of Common Pleas of Guernsey County, Ohio,
Juvenile Division, is affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Hoffman, J. concur.
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