In re T.G. , 2022 Ohio 1213 ( 2022 )

[Cite as In re T.G., 2022-Ohio-1213.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. Earle E. Wise, Jr., P. J.
Hon. John W. Wise, J.
T.G. Hon. Patricia A. Delaney, J.
M.G. Case Nos. 2021CA00119, 120, 121
M.G. OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case Nos.
2019JCV01235, 01236, and 01237
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 7, 2022
APPEARANCES:
For Appellee SCJFS For Appellant
BRANDON J. WALTENBAUGH AARON KOVALCHIK
STARK COUNTY JFS 116 Cleveland Avenue, NW
402 2nd Street, SE Suite 808
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case Nos. 2021CA00119, 00120, and 00121 2
Wise, John, J.
{¶1} Appellant, C.R., appeals the decision of the Stark County Court of Common
Pleas, Family Court Division, which terminated Appellant’s parental rights and granted
Stark County Department of Job and Family Services’ (“Agency”) motion for permanent
custody of T.G., M.G.1., and M.G.2 (“Children”). The following facts give rise to this
appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant is the biological mother of T.G., M.G.1., and M.G.2. D.G. is the
biological father (“Father”).
{¶3} On December 11, 2019, the Agency filed complaints alleging the
dependency of T.G., the abuse, neglect, and/or dependency of M.G.1., and the abuse,
neglect, and/or dependency of M.G.2. The same day, the trial court held an emergency
hearing. At the hearing the trial court found that probable cause existed for the
involvement of the Agency, that the Agency engaged in reasonable efforts to prevent the
need for the removal of the Children, and that continued residence of the Children with
Appellant was contrary to their best interests. The trial court approved and adopted the
pre-adjudicatory orders requested by the Agency, including a no-contact order between
Appellant and the Children, and granted temporary custody of the Children to the Agency.
{¶4} On March 5, 2020, the trial court found T.G. and M.G.2. to be dependent
and M.G.1. to be an abused child. The trial court placed the Children into temporary
custody. The trial court also approved and adopted the case plan, found that the Agency
had made reasonable efforts to finalize the permanency planning in effect, and that
compelling reasons existed to preclude a filing of permanent custody.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 3
{¶5} On June 5, 2020, the trial court reviewed the case. The trial court approved
and adopted the case plan, found that the Agency had made reasonable efforts to finalize
the permanency planning, and that compelling reasons existed to preclude filing
permanent custody by the Agency.
{¶6} On October 16, 2020, the Agency filed motions to extend its temporary
custody of the Children for six months.
{¶7} On November 5, 2020, the trial court approved and adopted the case plan
and found that compelling reasons existed to preclude filing permanent custody by the
Agency.
{¶8} On January 6, 2021, the trial court held a hearing on the motions to extend
the Agency’s temporary custody of the Children.
{¶9} On January 8, 2021, the trial court granted the Agency’s extension of
permanent custody.
{¶10} On March 8, 2021, Attorney Nikki Reed was appointed Guardian ad Litem
for the Children.
{¶11} On March 17, 2021, Attorney Herb Morello filed notice of appearance for
Appellant.
{¶12} On May 4, 2021, the trial court reviewed the case, and found that no
compelling reasons existed to preclude a filing of permanent custody.
{¶13} On July 1, 2021, the Guardian ad Litem filed a report.
{¶14} On July 6, 2021, Appellant filed a motion to continue the permanent custody
hearing. On July 8, 2021, despite its prior denial of the motions the trial court continued
the trial until September 17, 2021.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 4
{¶15} On September 10, 2021, the Guardian ad Litem filed her final report.
{¶16} On September 17, 2021, the trial court heard evidence on the motions
requesting permanent custody of the Children. The trial court took the matter under
advisement.
{¶17} At the hearing, Linda Chambliss testified she is a Supervising Worker at the
Agency assigned to this case. Appellant objected to Chambliss’s testimony as hearsay
since she was only a supervisor on the case and lacked first-hand knowledge. The trial
court judge overruled the objection.
{¶18} Chambliss testified T.G. was born on May 8, 2013. She also testified M.G.1.
and M.G.2. were born on December 18, 2018. Chambliss continued, M.G.1. broke her
arm. Appellant blamed T.G., but didn’t know how it happened.
{¶19} Chambliss was asked about Appellant’s history with Wayne County’s child
services when Appellant renewed her objection. The trial court overruled citing this
testimony is historical information. Appellant argued employees from Wayne County
would be more appropriate to present such testimony. The trial court noted the objection
and overruled.
{¶20} Chambliss testified that Appellant’s open cases in Wayne County related to
drug use, being gruff with the Children, and yanking baby T.G. by the arm when she was
young. Chambliss continued that Appellant’s cases in Stark County stem from ongoing
neglect and domestic violence between her and her boyfriend.
{¶21} Chambliss testified the Father asked not to participate in any case plan
services, did not visit the Children after he was released from prison, and had been
removed from the case plan. The Agency had been involved with Appellant because
Stark County, Case Nos. 2021CA00119, 00120 and 00121 5
M.G.1. had a broken arm, and doctors felt Appellant’s explanation was not plausible.
Appellant blamed T.G., seven years old at the time, for the injury. The Agency also had
concerns over Appellant’s drug use.
{¶22} Chambliss also testified that Appellant had difficulty during visits
maintaining and engaging the Children when they were all together. She spoke and acted
aggressively toward the Children. Appellant was scheduled to attend counseling with
T.G., but they had to stop because Appellant continued to blame T.G. for M.G.1.’s broken
arm. This had a negative impact on T.G. The Agency wants Appellant to admit there is a
deficit in her parenting in order to learn from the parenting classes. While she has
completed Goodwill Parenting classes, she has not demonstrated that she understands
and can apply the skills learned. The Agency does not know if Appellant understands that
her failure to supervise M.G.1. caused the broken arm.
{¶23} Chambliss finished her direct examination by determining, based upon
conversations she had with Appellant, that Appellant does not accept responsibility for
the M.G.1.’s broken arm.
{¶24} On cross-examination, Chambliss testified that she has never personally
witnessed Appellant abuse drugs, that Appellant has appropriate housing, and that
Appellant has not been charged for M.G.1.’s broken arm.
{¶25} On re-direct, Chambliss testified that Appellant indicated that she has a
medical marijuana card which allows her to get marijuana from dispensaries in Ohio, but
she gets her marijuana from Michigan.
{¶26} Next Carmona Griffin, the ongoing worker assigned by the Agency to the
case, testified she began working on the case in February of 2021. She testified the
Stark County, Case Nos. 2021CA00119, 00120 and 00121 6
Children’s father was not a part of the case or case plan because he has a history of
domestic violence and was recently incarcerated in Wayne County for domestic violence.
{¶27} Griffin then testified that Appellant’s case plan involved her completing a
substance abuse assessment, parenting assessment, anger management classes, and
a Goodwill Parenting class.
{¶28} Appellant completed the substance abuse assessment. The
recommendations included her to continue with her counseling, which she has done.
Appellant was supposed to drug test randomly, but she has not participated fully in the
drugs testing. Appellant tested positive for THC on April 19, 2021, and did not comply
with testing after.
{¶29} Appellant also completed parenting assessment and anger management
classes. However, she did not complete her goals at the Goodwill Parenting course and
reunification was not recommended.
{¶30} Appellant was also recommended to attend counseling with T.G. However,
no progress was being made and Appellant was asked not to come back.
{¶31} Griffin then testified that Appellant has made very little progress on her case
plan, and that if the Children were to be returned to her, they would be at risk for harm.
Griffin does not believe another extension of temporary custody would change anything
between Appellant and the Children.
{¶32} Appellant testified that M.G.1. and M.G.2. were on track developmentally,
and that T.G. has no physical issues, but she is developmentally delayed. She is eight-
years old, but her mentality is that of a three or four-year old. T.G., M.G.1., and M.G.2.
are placed in the same foster home. They have bonded together as siblings and with the
Stark County, Case Nos. 2021CA00119, 00120 and 00121 7
foster family. It is a possible adoptive placement. No relatives were identified as being
able to take placement of the Children. Father has not seen the Children since Griffin has
been involved. T.G. appears to be bonded to Appellant, but M.G.1. and M.G.2. do not
appear to be bonded to Appellant.
{¶33} Griffin testified that permanent placement is in their best interest as they are
in a home that is currently safe, they are bonded to the foster family, it is the only home
M.G.1. and M.G.2. have known, no case plan progress has been made, and Appellant
continues to use marijuana.
{¶34} Dr. Aimee Thomas testified she is employed by Lighthouse Family Center
as a licensed psychologist. Thomas continued that Appellant thought the Agency treated
her unjustly, that she was proven innocent of her abuse charge, and that she believes
she still has full custody of the Children. Appellant took no personal responsibility for
M.G.1.’s broken arm but blamed T.G. Appellant spent considerable time vilifying T.G. in
each session, calling her aggressive and violent. Appellant gave conflicting statements
on what happened to M.G.1. In one statement, M.G.1.’s broken arm was an accident. In
another statement, T.G. dropped M.G.1. And in a third statement, T.G. stomped on
M.G.1. There was no consistency in her statements as to what happened. However, other
records showed T.G. likely could not have caused the broken arm.
{¶35} Thomas also testified that Appellant’s childhood history impacts her ability
to parent. She was exposed to domestic violence and experienced sexual abuse at an
early age. Appellant’s mother was diagnosed with schizophrenia, and Appellant had many
poor parental role models. This desensitized Appellant to a chaotic environment.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 8
{¶36} Appellant maintained a long-term relationship with Father. Appellant noted
she was a victim of violence in the relationship, but also reported there was mutual
violence. T.G. was exposed to these incidents. Father was a reported user of
methamphetamines, cocaine, and heroin.
{¶37} Appellant told Thomas she uses marijuana to cope with symptoms of post-
traumatic stress disorder. Appellant used marijuana while pregnant with M.G.1. and
M.G.2. and was diagnosed with a substance use disorder related to her ongoing use.
Appellant has a medical marijuana card and was smoking legally due to her mental health
diagnosis. Thomas noted that Appellant was confused and dysregulated when they met.
Appellant and Appellant’s boyfriend were both smoking marijuana daily. Appellant’s
PTSD was not being treated by counseling.
{¶38} Thomas testified Appellant was functioning in the below average range of
intellectual ability. Appellant acknowledged that she did expose T.G. to violence in
Appellant’s home and in Appellant’s mother’s home. Appellant continued to vilify T.G.
throughout her interactions with Thomas. Thomas believes Appellant uses marijuana to
cope with negative emotions, and it does not appear to be effective. Appellant was also
drinking alcohol several days a week. Appellant’s IQ was assessed at 73, which means
she is functioning at the level of a ten-year-old. Marijuana and alcohol use can further
reduce someone’s judgment and reasoning.
{¶39} T.G. had reported during a clinical interview that Appellant “whooped” T.G.’s
younger siblings, and that T.G. has had bruises from Appellant’s “whooping.” Thomas
believes Appellant parentified T.G. by giving T.G. responsibilities including giving M.G.1.
and M.G.2. formula.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 9
{¶40} Thomas diagnosed Appellant with Cannabis Use Disorder, Specified
Personality Disorder with Borderline Independent Traits, Borderline Intellectual
functioning, and other Specified Stress or Trauma Disorder which is a step down from
Post-Traumatic Stress Disorder. Thomas recommended Appellant participate in
counselling to address anger management, trauma focus to reduce PTSD type
symptoms, successfully complete Goodwill Parenting classes, joint counseling sessions
with T.G.’s therapist, substance abuse treatment services, abstain from mood altering
substances, including alcohol, the Agency should ascertain if Appellant’s boyfriend can
be unsupervised around the Children, and to stop vilifying T.G. for M.G.1’s injury.
{¶41} Next, Kelsey Kiggans testified she is a parenting instructor and family coach
at Goodwill Industries. Kiggans testified Appellant began the parenting program on
September 14, 2020, and her final date was November 20, 2020. Appellant created four
individual goals to demonstrate responsibility and insight regarding the Agency’s
concerns, and eleven program goals creating safety and stability for the Children.
Appellant achieved zero out of the four individual goals and one out of eleven program
goals. Appellant also had to take a health and safety medical care pre-test and post-test.
The pre-test is taken right before the class, and the post-test is given at a previously
undisclosed time to test participant’s retention of topics. Appellant scored a two out of
thirty-nine, or five percent, on the pre-test, and seven out of thirty-nine, or eighteen
percent, on the post-test.
{¶42} In addition, participants also take a comprehensive pre-test and post-test
going over all topics covered in class. Appellant scored a thirty-six out of 142, twenty-five
percent, on the pre-test, and sixty-seven out of 192, thirty-five percent, on the post-test.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 10
{¶43} Every Friday during the program participants engage in visitations with their
children in an observed environment. Over the course of the program Kiggans observed
Appellant pulling her children by the arms. Kiggans told Appellant to lift children by their
bodies and not arms. Appellant argued with Kiggans, saying she was not pulling hard on
the Children’s arms.
{¶44} During the same visit Appellant took hold of one of her child’s legs
attempting to show Kiggans the child had the wrong shoe size. The child tried to squirm
out of Appellant’s lap, and Appellant did not let go twisting of the child’s leg. Appellant
became frustrated because she wanted to explain the shoe size was wrong, but Kiggans
criticized her for not paying attention to her child’s reaction. While frustrated, Appellant
did not remain calm, which startled the child.
{¶45} Kiggans observed that Appellant struggled to divide her attention amongst
the Children. When all three were present, Appellant focused mainly on the younger
children and engaged little with T.G. Kiggans created a goal to address the lack of
engagement with T.G.; however, Appellant did not implement any behavior to achieve the
goal. Appellant displayed minimal effort towards engaging with T.G.
{¶46} Appellant’s first individual goal was to address her past physical punishment
with the Children. However, when asked to list general changes she planned to make in
how she disciplined her children, she could not list any. Appellant continued to indicate
she would teach her children not to trust men who were abusive. Appellant did not
respond to any attempts to bring the conversation back to addressing the goal.
{¶47} Appellant’s second individual goal was not accepted because of Appellant’s
description and use of medical marijuana. Appellant was to demonstrate how she was
Stark County, Case Nos. 2021CA00119, 00120 and 00121 11
using medical marijuana within the parameters of the law and her prescription. Appellant
was travelling to Michigan to buy her marijuana and smoking in the morning and at night.
However, it is not legal to transport marijuana across state lines, and in Ohio medical
marijuana participants are only permitted to ingest or vape medical marijuana. Therefore,
Appellant did not demonstrate she was appropriately using her prescription.
{¶48} Appellant’s third individual goal was to take responsibility for M.G.1.’s
broken arm such as not offering proper supervision, and to have gotten M.G.1. medical
attention promptly. Appellant never took responsibility.
{¶49} Appellant’s fourth individual goal was to demonstrate bonding activities with
T.G during visitations and assist T.G. in healing from the traumatic experiences T.G. has
endured while under Appellant’s care. Appellant minimally engaged with T.G. saying she
would send T.G. to counseling and take T.G. to Chuck E. Cheese as her full plan in
assisting with T.G. in healing from any trauma T.G. endured. As children need to process
traumatic situations they have endured under their parent’s care with the parent, sending
T.G. to counseling alone and then taking T.G. to Chuck E. Cheese would not benefit
T.G.’s mental health.
{¶50} The levels of completion for the program are: completion, participation,
attendance, and non-compliance. Completion means the participant successfully
completed most of the course requirement. Participation means the participant
successfully completed an average amount of requirements. Attendance indicates the
participant has completed only a minimal amount of requirements. Finally, non-
compliance means the participant failed to complete even a minimal amount of
requirements. Appellant received a non-compliance certificate.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 12
{¶51} During the discharge meeting Kiggans reviewed test scores, classroom
observations, and concerns during visitation. Appellant yelled during the meeting, ranting
about how a judge forced a Goodwill employee to apologize to her in the past.
{¶52} Next, Marisela Ortega Gomes testified she is employed at Lighthouse
Family Center as a clinical counselor. Ortega Gomes has been T.G.’s counselor since
May of 2020. Ortega Gomes brought Appellant into the counseling session for T.G. to talk
to Appellant about how T.G. was feeling. Ortega Gomes indicated that Appellant needed
to apologize to T.G. for blaming T.G. for hurting M.G.1. T.G. believes she did not injure
M.G.1., but is feeling guilt over being blamed for it. Ortega Gomes wanted Appellant to
apologize to T.G. for making her feel that way.
{¶53} The Agency then rested its case.
{¶54} Nikki Reed, the Children’s second Guardian ad Litem, testified she was
appointed in March of 2021. Reed testified Appellant was employed throughout her period
as Guardian ad Litem. Reed continued that the visits she observed between Appellant
and the Children were all appropriate. Reed spoke with Father, who said he had no
concerns about Appellant’s parenting abilities. Reed also does not know who broke
M.G.1.’s arm.
{¶55} On cross-examination Reed testified that Appellant’s boyfriend had taken a
video of T.G. The video was difficult to understand from M.G.2. screaming in the back
ground. However, Reed indicated that it appeared T.G., age six, was being coerced into
admitting she had done something wrong.
{¶56} Appellant testified she lives in Canton, Ohio with her boyfriend. Appellant
works as a home health care aide. Appellant believes her children are being taken from
Stark County, Case Nos. 2021CA00119, 00120 and 00121 13
her for something she did not do. Appellant testified Father used to abuse her in front of
T.G. Appellant accused her previous caseworker of stopping her joint parenting sessions.
{¶57} Appellant’s testimony included denying she broke M.G.1.’s arm, denying
she was upset at visitations, and denying she twisted her child’s leg to get a look at the
shoe. She did not feel like Goodwill assisted her at all, and that she was singled out by
staff. Appellant then made the accusation that only the white parents who attended her
Goodwill class got their children back. Appellant also denied that her and the twins are
not bonded. Appellant says she discovered bruises on one child and was never told the
cause of the bruises.
{¶58} After Appellant finished parenting classes, Ortega Gomes reached out
again to see if Appellant wanted to restart joint counseling with T.G. Appellant indicated
she did not understand why she would need to go to the sessions. Ortega Gomes decided
it would be best, due to Appellant’s hesitation, not to restart the joint counseling.
{¶59} On October 1, 2021, the trial court issued its finding of facts, granted
permanent custody of the Children to the Agency, and terminated the parental rights of
Appellant. Appellant appeals that decision.
ASSIGNMENTS OF ERROR
{¶60} Thereafter, Appellant timely filed her notice of appeal. She raises the
following four Assignments of Error:
{¶61} “I. MOTHER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE THE TRIAL COURT COUNSEL FAILED TO FILE A MOTION TO EXTEND
TEMPORARY CUSTODY OR A MOTION TO RETURN THE CHILDREN TO MOTHER
PRIOR TO THE PERMANENT CUSTODY TRIAL.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 14
{¶62} “II. THE TRIAL COURT ERRED BY ALLOWING LINDA CHAMBLISS TO
TESTIFY TO HEARSAY EVIDENCE.
{¶63} “III. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN 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.
{¶64} “IV. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I.
{¶65} In Appellant’s first Assignment of Error, Appellant argues she received
ineffective assistance of counsel when her trial counsel failed to file a motion to extend
temporary custody or a motion to return the Children to Appellant prior to the permanent
custody trial. We disagree.
{¶66} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test found in Strickand v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458 (1996).
Therefore, Appellant must show counsel’s performance fell below an objective standard
of reasonable representation and but for counsel’s error, the result of the proceedings
would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other
words, Appellant must show counsel’s conduct so undermined the proper functioning of
Stark County, Case Nos. 2021CA00119, 00120 and 00121 15
the adversarial process that the trial cannot be relied upon as having produced a just
result. Id.{¶67} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland at 689. Therefore, we must determine if counsel acted “outside the wide
range of professionally competent assistance.” Id. at 690.
{¶68} In the case sub judice, Appellant argues trial counsel was ineffective
because of a failure to file motions for an extension of temporary custody and/or motions
to return the Children to Appellant. However, a filing of these motions is unnecessary.
R.C. §2151.415 does not provide that a parent may file a request for an extension of
temporary custody of the agency. In re A.C. B., 11th Dist. Portage No. 2016-P-0065, 2017-
Ohio-4127, ¶34. Therefore, counsel would not be deficient for failing to file such a motion.
As part of the permanent custody hearing, the trial court must find the Children could not
or should not be placed with either parent within a reasonable period of time. R.C.
§2151.414. This finding precludes granting a motion to return the Children to Appellant.
Therefore, counsel would not be deficient not filing such a motion.
{¶69} As noted above, the motion for extension of temporary custody and motion
to return the Children to Appellant were unnecessary. As such Appellant has failed to
demonstrate trial counsel’s performance fell below an objective standard of reasonable
representation.
{¶70} Appellant’s First Assignment of Error is overruled.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 16
II.
{¶71} In Appellant’s Second Assignment of Error, Appellant argues Chambliss’s
testimony should not have been allowed as to facts that occurred outside of her direct
involvement in the case because she had no personal knowledge of those facts. We
disagree.
{¶72} “Hearsay” is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C).
{¶73} In In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶21, the Eighth
District found that a social worker’s testimony as to the contents of the agency’s case file
is an exception to the rule against hearsay according to Evid.R. 803(6) and Evid.R.
803(8). The Eighth District stated:
Evid.R.803(6) creates a hearsay exception for records kept in the
ordinary course of business. See In re McCullough (Dec. 6, 2001),
Cuyahoga App. No. 79212. Likewise, Evid.R. 803(8) creates a hearsay
exception for public records and reports which set forth the activities of an
agency or office and contain matters observed which, pursuant to a duty of
law, the agency or office has a duty to report. See In re Brown, [sic] Athens
App. No. 06CA4, 2006-Ohio-2863, at ¶32, fn.1; In re Garvin (June 15,
2000), [sic] Cuyahoga App. Nos. 75329 and 75410. Id.{¶74} Under either exception, a social worker’s testimony concerning records kept
by the agency, statements made by a parent, and reports taken during the course of the
agency’s investigation, are admissible because the contents of her file, including the
Stark County, Case Nos. 2021CA00119, 00120 and 00121 17
reports against the family, had been compiled as part of the Agency’s activities. Matter of
D.M., 5th Dist. Guernsey No. 18 CA 18, 2018-Ohio-4737, ¶27. As such, a case worker in
a supervisory capacity may testify to the contents of the case file.
{¶75} In addition, Appellant objects to the portion of testimony where Chambliss
is reading from a judgment entry already stipulated to by the defense and in the record.
The problem with Appellant’s argument is that Appellant stipulated to their admission. A
stipulation is a voluntary agreement between opposing counsel concerning the disposition
of some relevant point to avoid the necessity for proof of issue. Julian v. Creekside Health
Ctr., 7th Dist. No. 03MA21, 2004-Ohio-3197, ¶54. Once entered into by the parties and
accepted by the court, a stipulation is binding upon the parties. Id.{¶76} A stipulation to the admissibility of evidence precludes any subsequent
challenge or claim of error relating to the stipulated evidence. See Lentz v. Schnippel, 71
Ohio App.3d 206, 211, 593 N.E.2d 341, 344 (3rd Dist.1991); Dubecky v. Horvitz, 64
App.3d 726, 742, 582 N.E.2d 1087, 1097 (11th Dist.1990). Therefore, because Appellant
stipulated to the admission of the judgment entries, she is precluded from challenging its
admissibility before this Court on appeal.
{¶77} Furthermore, assuming arguendo, an error was committed in allowing
Chambliss to read from judgment entry’s already in the record, we find that error to be
harmless as the information was already stipulated to and in the record.
{¶78} Appellant’s Second Assignment of Error is overruled.
III., IV.
{¶79} In Appellant’s Third and Fourth Assignments of Error, Appellant argues the
trial court’s findings that the Children cannot and should not be placed with Appellant
Stark County, Case Nos. 2021CA00119, 00120 and 00121 18
within a reasonable period of time and that, in the best interest of the Children, permanent
custody is granted to the Agency, was against the manifest weight and sufficiency of the
evidence. We disagree.
{¶80} Sufficiency of the evidence is a test of adequacy to determine if the
evidence is legally sufficient to sustain a decision. This is a question of law to be reviewed
de novo by this Court. State v. Thompson, 78 Ohio St.3d 380, 386, 678 N.E.2d 541, 546
(1997).
{¶81} 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, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). 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 Construction, 54 Ohio St.2d 279, 376 N.E.2d 578(1978).
{¶82} 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
[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). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
Stark County, Case Nos. 2021CA00119, 00120 and 00121 19
N.E.2d 517. In weighing the evidence, however, we are always mindful of the presumption
in favor of the trial court’s factual findings. Eastley at ¶2.
{¶83} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶84} 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.
{¶85} 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 no relatives of the child are able to take
permanent custody; or (d) the child has been in temporary custody of one or more public
children services agencies or private child placement agencies for twelve or more months
of a consecutive twenty-two month period ending on or after March 18, 1999.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 20
{¶86} 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 child’s need
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody.
{¶87} 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, a 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.
{¶88} In the case sub judice, the trial court found that the statutory requirement of
R.C. §2151.414(B)(1)(a) through (d) have been met. The court found by clear and
convincing evidence that the Children had been in temporary custody of the Agency for
a period of twelve or more of the past twenty-two-month period. The Agency presented
testimony showing the Agency met the burden of R.C. §2151.414(B)(1)(d). The trial court
also found, by clear and convincing evidence, that the Children could not be placed with
either parent within a reasonable period of time or should not be placed with the either
parent.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 21
{¶89} No party contested that the Children could not be placed with their father.
Appellant argues the trial court found that the minor children could not be placed with
Appellant is against the manifest weight and sufficiency of the evidence. 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.
{¶90} Here, the trial court found Appellant failed to successfully complete and
implement her Goodwill parenting class, Appellant admitted to using marijuana for
medicinal purposes, but failed to comply with drug testing after April of 2021. Appellant
refused to acknowledge her role in M.G.1.’s broken arm, instead blaming T.G. for it.
Appellant needed to admit that the injury occurred due to her lack of supervision over her
children. She did not.
{¶91} Appellant scored a five percent on the Health & Safety Medical Care pretest,
and Appellant score an eighteen percent on her post-test. Appellant scored a twenty-five
percent on her total class pretest, and Appellant scored a thirty-five percent on her total
class post-test. Appellant argues the administrator of the test needed to provide more
assistance, more than offering to read and ensure Appellant understood each question,
due to her low IQ. However, Appellant fails to site to any legal authority to support this
contention.
{¶92} Based on the foregoing, we find the “first-prong” burden as required by R.C.
§2151.414(B)(1)(a) through (d) has been met.
Stark County, Case Nos. 2021CA00119, 00120 and 00121 22
{¶93} Next, we must address the issue of best interest. “The discretion which the
juvenile court enjoys in determining whether an order of permanent custody is in the best
interest of [the children] 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 WL1700073 (Nov.
13, 2000), citing In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).
{¶94} In the case sub judice, the trial court determined it was in the best interest
of the Children to be placed in the permanent custody of the Agency pursuant to R.C.
§2151.414(D), and we agree.
{¶95} The Agency presented testimony that while M.G.1. and M.G.2. are
developmentally on target, T.G. is developmentally delayed. T.G., M.G.1., and M.G.2. are
all placed together in the same foster home, and they have bonded to the foster parents
and each other. While T.G. is bonded with Appellant, M.G.1. and M.G.2. are not bonded
with Appellant. The foster family wants to adopt all three children.
{¶96} The Agency also presented testimony that M.G.1. broke her arm. Appellant,
who was home at the time, was not in the room but blames T.G. for the break. However,
a medical assessment showed that it was not plausible that T.G. broke M.G.1.’s arm.
Both Appellant’s mother and boyfriend were in the room at the time. Despite being told
that Appellant’s blaming of the broken arm on T.G. was harmful to T.G., Appellant
continued to do so.
{¶97} The Agency also presented evidence that Appellant tested positive for THC
and subsequently failed to comply with further drug testing. Appellant admitted to using
marijuana but does have a medical marijuana card. However, Appellant obtains her
Stark County, Case Nos. 2021CA00119, 00120 and 00121 23
medical marijuana from Michigan and smokes it from a bowl every day. Appellant is
required to obtain her marijuana from dispensaries in the State of Ohio and should either
use the vape or edible form of marijuana to ensure correct dosage.
{¶98} Therefore, we find that the trial court’s decision finding that the Children
could not or should not be placed with Appellant or Father within a reasonable period of
time was not against the manifest weight or sufficiency of the evidence, and that a grant
of permanent custody to the Agency was in the Children’s best interest.
{¶99} Appellant’s Third and Fourth Assignments of Error are overruled.
{¶100} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division of Stark County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Delaney, J., concur.
JWW/br 0405