In re C.T.L.V. ( 2023 )

[Cite as In re C.T.L.V., 2023-Ohio-1182.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
C.T.L.V. : CASE NO. CA2022-12-122
: OPINION
4/10/2023
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2021-0115
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee, Butler County Department of Job and Family Services.
Michele Temmel, for appellee, father.
Mark Raines, for appellant.
Legal Aid Society of Southwest Ohio, LLC., and Jamie Lee Landvatter, guardian ad litem.
PIPER, J.
{¶1} Appellant, Mother, appeals a decision of the Butler County Court of Common
Pleas, Juvenile Division, granting permanent custody of her daughter, C.T.L.V., to the Butler
County Department of Job and Family Services ("BCDJFS"). The child's Father did not
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appeal.1 For the reasons detailed below, we affirm.
Preliminary Background
{¶2} C.T.L.V. is a female child born on August 20, 2013. Mother and Father are
immigrants from Guatemala and C.T.L.V. was not born in the United States. The record
further indicates Mother and Father also have two other children.
{¶3} While the reasons for doing so are disputed, Father, at some point, moved to
Ohio taking C.T.L.V. with him. Mother claims that Father took C.T.L.V. without her
permission and that Father would not allow her to communicate with C.T.L.V. At the time
of the permanent custody hearing, Mother acknowledged that she had not seen C.T.L.V. in
person for five years.
{¶4} C.T.L.V. had significant cognitive delays which have improved, but still exist
in varying degrees. The foster mother stated that when first arriving in her care, C.T.L.V.
had the cognitive ability of an approximately one-and-one-half-year-old child, despite being
seven years old. Furthermore, foster mother stated that when C.T.L.V. first arrived, she
was remarkably nonverbal. Throughout these proceedings, C.T.L.V. has become more
verbal with an increasing ability to communicate in both English and Spanish.
Initial Proceedings Upon Removal
{¶5} On April 16, 2021, BCDJFS refiled an abuse, neglect, and dependency
complaint regarding C.T.L.V. seeking temporary custody.2 In the refiled complaint,
BCDJFS alleged that on October 12, 2020, the Hamilton Police Department conducted a
police removal of C.T.L.V. after she was left for an indeterminate period of time unattended
in a vehicle at Miami Valley Gaming.
1. Father also did not appear at the permanent custody hearing.
2. BCDJFS filed a previous complaint which is not contained in the record thereby providing incomplete
information as to why the complaint was refiled.
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{¶6} The same day she was removed, C.T.L.V. was admitted to the Cincinnati
Children's Hospital. Hospital staff discovered that C.T.L.V. had internal injuries to her
vagina, which indicated sexual abuse. Hospital staff also discovered "male DNA" on
C.T.L.V.'s body. BCDJFS stated there was an ongoing criminal investigation and it had
received allegations that C.T.L.V.'s father was the alleged perpetrator of the possible sexual
abuse.3
{¶7} According to the refiled complaint, Father had not enrolled C.T.L.V. in school
despite the child having reached the age of seven in October 2020. The refiled complaint
further indicated that Mother's whereabouts was not initially known but that she had since
been located in Homestead, Florida. The refiled complaint then indicated that a home study
request had been submitted to the state of Florida under the Interstate Compact for the
Placement of Children ("ICPC").
{¶8} Following a hearing, the juvenile court granted an emergency ex parte order
granting temporary custody to BCDJFS. The juvenile court then ordered that Father have
no contact with C.T.L.V. Mother's contact with the child was to occur at the discretion of
BCDJFS.
{¶9} The ICPC home study stated that Mother did not have appropriate housing,
as the home was in a deplorable condition with mold "everywhere." There was only one
full size bed in the residence where Mother and her two other children would sleep. Mother
reportedly stated that she would be moving soon and would notify the "primary worker" after
she moved.
{¶10} On May 11, 2021, the juvenile court held a hearing on the refiled complaint.
3. Subsequently, at the permanent custody hearing, the caseworker testified that no charges had been filed
to date. It her was understanding there was still an open investigation. Father denied ever sexually abusing
C.T.L.V.
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BCDJFS moved to amend the refiled complaint to withdraw the abuse allegations. BCDJFS
noted that a case plan was filed in November 2020 under the original case number and
requested the juvenile court adopt the case plan for these proceedings. BCDJFS further
requested that Mother be added to the case plan. Thereafter, Mother and Father agreed
to the adjudication that C.T.L.V. was a dependent and neglected child. 4 The juvenile court
then found C.T.L.V. to be neglected and dependent, and adopted the prior case plan with
Mother now included. The case plan included requirements that Mother attain appropriate
housing, gain employment, and submit to another home study. The juvenile court further
stated that visitation between C.T.L.V. and Mother would begin once it was recommended
by C.T.L.V.'s therapist.
{¶11} On August 19, 2021, the juvenile court held a review hearing during which
Mother's counsel discussed the difficulties Mother was having in obtaining assistance in
order to contact C.T.L.V.
{¶12} The guardian ad litem ("GAL") stated C.T.L.V.'s therapist had concerns about
reintegrating the parents into C.T.L.V.'s current situation. C.T.L.V. had not been receiving
consistent care and had the speech skills of a three-and-one-half-year-old child. However,
the juvenile court agreed there should be some communication between C.T.L.V. and her
parents. The juvenile court issued an order in an effort to facilitate communication with the
child, stating:
The BCDJFS shall advise this child's therapist that her mother
and father both desire to have some communication with
[C.T.L.V.]. Her therapist shall be advised that movement
towards some communication, which can be structured, limited,
or arranged in any way deemed to be necessary to keep
[C.T.L.V.] comfortable needs to occur as soon as may be
practicable.
4. Mother attended the court proceedings by phone. She only appeared in person for the permanent custody
hearing.
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{¶13} However, Mother only sporadically contacted the caseworker and as a result
only had two video calls with C.T.L.V.
Subsequent Permanent Custody Determination
{¶14} On January 12, 2022, BCDJFS moved for permanent custody. The
permanent custody hearing was held on August 2, 2022. At the permanent custody hearing,
the juvenile court heard testimony from Mother, C.T.L.V.'s foster mother, the BCDJFS
caseworker, and C.T.L.V.'s therapist. The GAL also provided a report recommending
permanent custody be granted to BCDJFS.
{¶15} Mother testified that she previously lived in Florida with Father and all three
children. Mother stated that Father was abusive and would hit her, sometimes after he had
been drinking but also while he was sober. According to Mother, Father left Florida with
C.T.L.V. without her permission. Mother stated that she arrived home one day and Father
and C.T.L.V. were gone. Mother testified that she did not file a missing persons report.
Mother explained that although she was aware she could have called the police, she did
not contact the police because she was afraid Father would retaliate against her. Mother
took no steps to locate C.T.L.V. or retrieve her from Father. Although Mother thought Father
would take care of C.T.L.V., Mother also acknowledged that she had concerns that Father
might do "something" to C.T.L.V.
{¶16} Mother admitted that she failed the first home study due to the poor conditions
of her living arrangements. Mother also admitted to failing a second home study because
she failed to report that her boyfriend was living in the residence. Mother testified that she
was employed full time at a plant nursery. Mother stated that she had another family
member who provided care for her two other children while she worked.
{¶17} The caseworker stated that Mother's engagement throughout these
proceedings was erratic. Furthermore, Mother had not seen C.T.L.V. for years. The
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caseworker testified that Mother only had two video calls with C.T.L.V. The caseworker did
not observe the first video call but noted the second video call only lasted approximately 15
to 20 minutes. The caseworker stated that during the call C.T.L.V. appeared very anxious
and clung to her foster mother. The caseworker stated that as the video call progressed
C.T.L.V. appeared excited to see her siblings despite indicating that she did not remember
them.
{¶18} The caseworker explained that it would be very difficult for Mother to
reestablish a relationship with C.T.L.V. due to the lengthy period of time apart from her.
The caseworker also confirmed that Mother failed two home studies. The caseworker
further addressed other concerns. For example, C.T.L.V. is on an IEP and was scheduled
to be placed in a resource room for the next school year. 5 C.T.L.V. has been diagnosed
with PTSD and is in ongoing speech therapy, occupational therapy, and play therapy. The
caseworker stated that Mother would not know how to meet C.T.L.V.'s special needs.
{¶19} The caseworker testified that C.T.L.V. is thriving with her foster family.
C.T.L.V. was initially an extremely fearful child who tended to hide under tables, but has
made significant strides and is now happier and appears more comfortable. The
caseworker stated that C.T.L.V. has bonded with her foster family and that the foster family
is able to meet C.T.L.V.'s special needs.
{¶20} C.T.L.V.'s foster mother testified that C.T.L.V. has remained in her care since
October 2020. When foster mother first met C.T.L.V. in the hospital, C.T.L.V. was very
small, malnourished, and had notable dark circles under her eyes. According to the foster
mother, C.T.L.V. was basically nonverbal. While C.T.L.V. can now use full sentences, she
still struggles to communicate. Foster mother was able to enroll C.T.L.V. in school. Initially,
5. An Individualized Educational Plan designed for the specific needs of a particular child is known as an IEP.
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C.T.L.V. was placed on a 504 plan for her protection.6 C.T.L.V. had to repeat the second
grade. However, at the time of the permanent custody hearing, C.T.L.V. had been
promoted to the third grade and was on an IEP. Foster mother testified that C.T.L.V. has
dramatically improved and was thriving.
{¶21} C.T.L.V.'s foster mother also testified about the video calls between C.T.L.V.
and Mother. Foster mother testified that C.T.L.V. was very nervous during the calls and
C.T.L.V. clung to the foster mother. Foster mother also testified that during the first video
call, Mother and C.T.L.V. mostly just waved at each other. During the second video call,
the foster mother stated that C.T.L.V. was calmer, but there was limited engagement during
the call. Foster mother explained "there was a lot of waving initially." Foster mother stated
that the second video call only lasted approximately 10 to 15 minutes.
{¶22} C.T.L.V.'s foster mother indicated that she wanted to adopt C.T.L.V. and that
C.T.L.V. is very bonded to her daughters. Foster mother has five daughters, one of whom
was also adopted and was originally from C.T.L.V.'s home country of Guatemala.
{¶23} Next, the state called C.T.L.V.'s therapist, Adriana Blazer, as a witness.
Blazer testified that she had been working with C.T.L.V. for over a year. Blazer explained
that she has not been able to start trauma therapy with C.T.L.V. since C.T.L.V. could not
fully express her feelings due to poor language skills. When she began treating C.T.L.V.,
Blazer stated that C.T.L.V. was very anxious and nonverbal. As therapy progressed, Blazer
stated that she had observed C.T.L.V.'s improvements in regard to her ability to
comprehend and her use of language. Blazer indicated that C.T.L.V. seems happy with her
foster home and has a positive relationship with her foster mother.
6. The foster mother testified that the 504 plan was in place for C.T.L.V.'s protection because the goal at the
time was to get her socialized in school. The foster mother explained that the focus was not on academics at
that point, but rather to help C.T.L.V. adapt to being in school and capable of interacting with others.
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{¶24} The GAL's report noted an additional observation regarding an in-person visit
Mother had with C.T.L.V. The GAL observed that the visit lasted approximately one hour
at a local park. When C.T.L.V. saw Mother, C.T.L.V. reportedly began to cry. C.T.L.V.
clung to her foster mother and indicated that she wanted to return to her foster home. The
visit ended because Mother tried to hug C.T.L.V. and C.T.L.V. began crying again. The
GAL's report concluded that permanent custody should be granted to BCDJFS.
{¶25} On August 31, 2022, the magistrate issued an entry granting BCDJFS's
motion for permanent custody. Mother filed objections to the magistrate's decision. Mother
argued that the termination of her parental rights was not in C.T.L.V.'s best interest. Mother
believes she is a fit custodial parent. Mother claims that she was prevented from visiting
C.T.L.V., and was not given a genuine opportunity for reunification. On November 22, 2022,
the juvenile court overruled Mother's objections and adopted the magistrate's decision.
Mother timely appeals, raising a single assignment of error for review.
Issue on Appeal
{¶26} Mother's sole assignment of error is as follows:
{¶27} THE TRIAL COURT'S DECISION TO GRANT BUTLER COUNTY
CHILDREN'S SERVICES PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR
AND CONVINCING EVIDENCE.
{¶28} In her sole assignment of error, Mother argues the juvenile court's decision is
not supported by clear and convincing evidence.7 Mother argues the juvenile court and
BCDJFS prevented her from repairing her relationship with C.T.L.V. Mother maintains that
neither the juvenile court nor BCDJFS made any meaningful efforts to repair her relationship
7. In the "issue presented for review," Mother selectively addresses only a few of the best interest factors to
be considered. However, there are additional factors that must be considered when determining a child's best
interest in permanent custody matters.
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with C.T.L.V. to determine if Mother could be a "good option for the child." She further
argues the court hindered C.T.L.V.'s ability to have meaningful contact with her biological
sisters. Consequently, Mother requests this court remand the case to the juvenile court
with orders for a plan to transition C.T.L.V. back into Mother's care.
Standard of Review
{¶29} Before a natural parent's constitutionally protected liberty interest in the care
and custody of her child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 748, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re M.B., 12th Dist.
Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. A reviewing court
will reverse a finding by the juvenile court that the evidence was clear and convincing only
if there is a sufficient conflict in the evidence presented. Id.{¶30} In determining whether a juvenile court's decision to grant a motion for
permanent custody is against the manifest weight of the evidence, an appellate court
"'weighs the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost
its way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered.'" In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru
CA2018-08-091 and CA2018-08-094 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. "In weighing the evidence,
there is a presumption in favor of the findings made by the finder of fact and evidence
susceptible to more than one construction will be construed to sustain the verdict and
judgment." In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15.
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Relevant Statutory Law
{¶31} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. First,
the court must find that the grant of permanent custody to the agency is in the best interest
of the child, utilizing, in part, the factors of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton
No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Second, the court must find that any of the
following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been
in the temporary custody of the agency for at least 12 months of a consecutive 22-month
period; (4) where the preceding three factors do not apply, the child cannot be placed with
either parent within a reasonable time or should not be placed with either parent; or (5) the
child or another child in the custody of the parent from whose custody the child has been
removed, has been adjudicated an abused, neglected, or dependent child on three separate
occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033,
2015-Ohio-3709, ¶ 10. Only one of the above findings must be applicable for the second
part of the permanent custody test to be satisfied. In re A.W., 12th Dist. Fayette No.
CA2014-03-005, 2014-Ohio-3188, ¶ 12.
{¶32} In this case, C.T.L.V. has been in the temporary custody of BCDJFS for more
than 12 months of a consecutive 22-month period at the time BCDJFS filed its motion for
permanent custody. This satisfies the second part of the test. Therefore, we now must
consider the first part of the test which involves the best interest factors. Id.{¶33} When considering the best interest of a child in a permanent custody hearing,
the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors.
This includes, but is not limited to: (1) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster caregivers and out-of-town providers, and any
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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; (3) the custodial history of the
child; (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; and (5)
whether any of the factors listed in R.C. 2151.414(E)(7) to (11) apply in relation to the
parents and child.
Analysis
{¶34} In granting the motion for permanent custody, the juvenile court considered
each of the best interest factors in light of the evidence presented at the hearing. With
respect to R.C. 2151.414(D)(1)(a), the juvenile court stated C.T.L.V. had been in her
Father's care at the time of the police removal. Approximately three years prior to C.T.L.V.'s
removal, Father had taken her to Ohio leaving Mother and C.T.L.V.'s two other siblings
behind. The juvenile court noted there were differing accounts concerning Father's
motivations for leaving with C.T.L.V. However, Mother admitted that she knew Father had
taken C.T.L.V. to Ohio. She acknowledged that she took no action to try to find C.T.L.V.
Mother further admitted that she had not seen C.T.L.V. in person in five years.
{¶35} When Mother was located, her home study failed because of the poor
condition of her residence with mold "everywhere" and there being only one bed in which
she and her two other children slept. A second home study was conducted later, which
also failed because Mother misled the assessors regarding another adult, Mother's
boyfriend, residing in the home.
{¶36} The juvenile court noted that C.T.L.V. did not have any contact with Father
since the police removal. Due to concerns regarding her medical condition, including
allegations that C.T.L.V. had been sexually abused, Father was ordered to have no contact
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with C.T.L.V. Father participated minimally with his case plan services.8 The juvenile court
further noted that there were concerns about Father's excessive alcohol use and having
multiple men present or living in his residence.
{¶37} The juvenile court stated that efforts were made to facilitate video calls
between C.T.L.V. and Mother. Given C.T.L.V.'s age, speech limitations, and the time of
separation, the virtual contact was limited and, as the juvenile court described, "superficial."
The only time Mother travelled to Ohio was for the permanent custody hearing. It was at
that time that Mother had the opportunity to visit C.T.L.V. in person. The juvenile court
noted that during the visit C.T.L.V. had time to warm up to Mother, but that effort failed, and
the visit was not productive.
{¶38} C.T.L.V. is doing well in her foster home, which she calls her home. At the
time of police removal, C.T.L.V. was nonverbal. Foster mother speaks Spanish and spent
the night with C.T.L.V. in the hospital and began to forge their relationship. When C.T.L.V.
came into foster care, she was malnourished and prone to anger. While C.T.L.V. still suffers
delays, she is described by foster mother as being confident, loving, observant, and
empathetic. The foster family has incorporated C.T.L.V. into their home and family. Foster
mother expressed interest in adopting C.T.L.V. if presented the opportunity.
{¶39} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that
C.T.L.V. had not been interviewed. The GAL submitted a report recommending permanent
custody be granted to BCDJFS.
{¶40} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed the
custodial history of C.T.L.V. The juvenile court found C.T.L.V. has been in the temporary
8. During a hearing, Father's counsel indicated that the transportation service provided for him was routinely
late, contributing to him missing appointments. Later, the assistant prosecutor noted that Father lived only
four or five blocks from where the appointments took place.
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custody of BCDJFS for 12 or more months of a consecutive 22-month period.
{¶41} In considering R.C. 2151.414(D)(1)(d), the juvenile court found C.T.L.V. is in
need of a legally secure placement and such placement is the only way C.T.L.V.'s needs
can be achieved. C.T.L.V.'s Father has been absent from C.T.L.V.'s life since she was
removed from his care in October 2020. C.T.L.V.'s Mother did nothing when Father took
C.T.L.V. to Ohio and was without contact with her for many years. When Mother was
located in Florida, she was found to be residing in a home in a deplorable condition and
had to relocate. However, upon relocating, Mother failed a second home study because
she was dishonest with the home study assessor regarding who resided in the home.
{¶42} Meanwhile, C.T.L.V. has thrived in her foster placement and is having her
special needs met. The juvenile court noted that C.T.L.V. considers her foster family to be
her family. The record reflects that C.T.L.V. is well-cared for and bonded with her foster
family.
{¶43} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court found that
both Mother and Father abandoned C.T.L.V. Again, the juvenile court stated that Father
has had no contact with C.T.L.V. and has done little to rectify the situation. Even accepting
Mother's explanation that Father wrongfully took C.T.L.V. away, she did nothing to retrieve
her.
{¶44} Based on these findings, the juvenile court found by clear and convincing
evidence that it was in the C.T.L.V.'s best interest to grant permanent custody to BCDJFS.
On appeal, Mother claims the juvenile court and BCDJFS prevented her from repairing her
relationship with C.T.L.V. and hindered C.T.L.V.'s ability to have meaningful contact with
her siblings. She argues that "BCDJFS certainly did not show enough to prove by clear
and convincing evidence that this relationship couldn't be repaired."
{¶45} We have carefully and thoroughly reviewed the evidence in this case and find
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that the juvenile court's determination regarding the best interest of C.T.L.V. is supported
by clear and convincing evidence and was not against the manifest weight of the evidence.
Though Mother states that she is employed, has suitable housing, and manages to take
care of her other children, the record reflects that she cannot provide the continued care
and attention that C.T.L.V. needs. Even accepting Mother's claim that Father wrongfully
took C.T.L.V. without her knowledge, she failed to do anything over the ensuing years to
protect or even maintain contact with C.T.L.V. Mother admitted that she failed to act out of
concern for her own well-being. Mother further admitted that she was concerned that Father
might do something to C.T.L.V., yet still failed to act. Mother's concern was well-founded,
as C.T.L.V. was never enrolled in school and was possibly sexually abused while in Father's
care.
{¶46} Mother complains that the juvenile court and BCDJFS did not do more to
expand the relationship between herself and C.T.L.V. She further maintains "the court"
hindered C.T.L.V.'s ability to have meaningful contact with her other siblings. Yet this
argument ignores the reality of the situation. Mother had already abandoned C.T.L.V. and
had not seen her for years before C.T.L.V. was removed from Father's care. Even under
different circumstances, it would have been difficult to reestablish a meaningful relationship
with C.T.L.V. It was even more complicated in this case due to C.T.L.V.'s cognitive delays
and limited communication skills. Although Mother, on a few occasions, indicated that she
wanted to communicate with C.T.L.V., the juvenile court had to weigh the competing
circumstances.
{¶47} C.T.L.V. had a limited ability to communicate, had experienced childhood
trauma, and had been abandoned by her parents. Mother was also sporadic in her
communication with the caseworker and never appeared in Ohio to see C.T.L.V. until the
permanent custody hearing. In light of this, the juvenile court made efforts to arrange for
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communication between Mother and C.T.L.V., which were conducted through video calls.
Though Mother complains that the juvenile court or BCDJFS should have done more, this
situation was Mother's own doing. She did nothing when Father left for Ohio with C.T.L.V.
and made no efforts to locate C.T.L.V. in order to check on her well-being. Even after
having failed her first home study, Mother failed a second home study because she was not
completely honest with the home study assessors.
Conclusion
{¶48} While in the temporary custody of BCDJFS, C.T.L.V. has thrived and received
treatment for her medical conditions and cognitive delays. C.T.L.V. is bonded with her
foster family and the foster mother has expressed an interest in providing a stable, safe
environment in which C.T.L.V. can continue to thrive. In light of the foregoing, we find there
is sufficient, credible evidence – which was also clear and convincing – supporting the
juvenile court's decision. We further find the juvenile court as the factfinder did not lose its
way, nor create a manifest miscarriage of justice requiring reversal. There was no error in
the juvenile court's decision to grant permanent custody to BCDJFS. Mother's sole
assignment of error is overruled.
{¶49} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.
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