In re C.G. ( 2023 )

[Cite as In re C.G., 2023-Ohio-3857.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin, P.J.
Hon. John W. Wise, J.
C.G. aka Hon. Andrew J. King, J.
G.C. Case No. 2023 CA 26
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 2021 AB 0081
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 24, 2023
APPEARANCES:
For Appellee For Appellant Mother
R. KYLE WITT DAVID TAWNEY
PROSECUTING ATTORNEY 117 West Main Street,
GENYLYNN COSGROVE Suite 208
ASSISTANT PROSECUTOR Lancaster, Ohio 43130
239 West Main Street, Suite 101
Lancaster, Ohio 43130 For Father
Guardian ad Litem ZACHARY MERANDA
33 West Main Street
THOMAS GORDON Newark, Ohio 43055
3135 Sun Valley Drive
Pickerington, Ohio 43147
Fairfield County, Case No. 2023 CA 26 2
Wise, J.
{¶1} Appellant, J.W., appeals the decision of the Fairfield County Court of
Common Pleas, Juvenile Division, which terminated Appellant’s parental rights and
granted Fairfield County Department of Job and Family Services’ (“Agency”) motion for
permanent custody of C.G. The following facts give rise to this appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} C.G. was born on June 17, 2021. Appellant is the biological mother of C.G.
B.G. is the biological father (“Father”).
{¶3} On June 18, 2021, the Agency received a report of abuse as C.G. tested
positive at birth for suboxone.
{¶4} On August 31, 2021, C.G. was found to be a dependent minor and placed
into the temporary custody of the Agency.
{¶5} On November 14, 2022, the Agency filed a motion requesting they be
granted permanent custody of C.G.
{¶6} On March 13, 2023, the trial court held a hearing on the motion for
permanent custody.
{¶7} First, Appellant testified that she is the mother of C.G. She was already
involved with the Agency when C.G. was born, as C.G.’s sibling U.G. ingested her
prescription medication. Appellant had five children involved with the Agency when C.G.
was born. The Agency eventually obtained permanent custody of her other five children
for her lack of compliance with her case plan.
{¶8} Appellant testified she had a relapse in February of 2022 when she had an
overdose. After her relapse she entered inpatient treatment in April of 2022 and was
Fairfield County, Case No. 2023 CA 26 3
discharged in August of 2022. From inpatient treatment she went to Southern Hope, a
sober living and inpatient facility. She was then briefly at another facility she did not feel
safe at and transferred to Spectrum Outreach in October of 2022.
{¶9} Appellant recently moved into a new home with B.G. Both are employed,
and Appellant recently got hired full time at a retail store at a higher wage. She will have
a second, part-time job where she can work hours as necessary. Appellant admitted there
was violence between her and B.G. in the past which led to Agency involvement.
{¶10} Appellant and B.G. have had unsupervised visits with C.G. She believes
they are going well, and C.G. is bonding with her.
{¶11} Appellant testified that since entering inpatient treatment in April of 2022,
she has not tested positive for any controlled substance other than what she is prescribed.
{¶12} Next, B.G. testified that he is C.G.’s father. He testified he had three children
with Appellant at the time C.G. was born. All three were involved with the Agency. B.G.
said he did not have good compliance with the other three children’s case plan. He was
incarcerated when C.G. was born, serving a sentence of about four months. He is not
sure what he was incarcerated for, either drug use or violating probation.
{¶13} B.G. was incarcerated again at the end of 2021 for about a month or two for
a felony drug possession charge. Upon release, he entered inpatient treatment. He was
there for roughly six months. He then went to sober living for a couple of months. He then
enrolled in Spectrum. In order to work on preventing domestic violence, B.G. and
Appellant have set boundaries. He completed a batterer’s intervention program and
participates in counseling. He and Appellant are also engaged in parenting classes. He
Fairfield County, Case No. 2023 CA 26 4
is working at Taco Bell right now. They have been in their current residence for a week.
The rent is about $800 per month.
{¶14} Since entering his inpatient program, B.G. has had no positive drug
screens. He is up for a promotion at his job, and his visits with C.G. have been going well.
{¶15} Morgan Furness then testified that she is the caseworker employed by the
Agency. C.G. has been in foster care since his birth. Appellant and B.G. do not have
custody of any of their other children. At the beginning of temporary custody there was a
lack of involvement by either parent with the case plan.
{¶16} Since Appellant started inpatient treatment, she has complied with her case
plan. The Agency paid Appellant and B.G.’s first month rent in their new residence.
Appellant has continued her substance abuse counseling and random screening. She
also is in therapy for her mental health. There are no safety concerns with their new
residence, and it is appropriate for a child.
{¶17} B.G. was not active in his other children’s case plan. Upon leaving
incarceration a second time, he entered inpatient treatment and has been compliant with
the case plan.
{¶18} Ms. Furness then testified about the concerns the Agency holds. The
Agency is worried about maintaining their recovery outside of a heavily structured
environment, maintaining housing of their own, and the potential return of domestic
violence into the home. The Agency would need a longer period of time to observe in
order to make this determination.
{¶19} The Agency has had temporary custody of C.G. since his birth. He turned
two this year. The Agency has noted no concerns with the parents’ interaction with C.G.
Fairfield County, Case No. 2023 CA 26 5
{¶20} During observation of C.G. with the foster parents, the Agency noted all his
basic needs are being met. He is comfortable in his environment. He has bonded with his
foster parents and the other children in the home.
{¶21} On cross-examination, Ms. Furness stated that Appellant has had a longer
period of compliance with her case plan than non-compliance. The Agency did not
attempt to arrange any overnight visits for C.G. with either parent while in sober living.
{¶22} Last, the Guardian ad Litem, Thomas Gordon, testified he had been with
the family since the case with the older children first opened. The Guardian ad Litem filed
a report with the trial court recommending the Agency not be granted permanent custody
of C.G. He observed the parents with C.G. ten times, and every time, Appellant and B.G.
were appropriate with C.G. The Guardian ad Litem also saw C.G. with his foster family.
They took very good care of him, and C.G. enjoys being with them. The Guardian ad
Litem would recommend the parents receive more time to show they can maintain a
sober, safe, and stable living arrangement.
ASSIGNMENTS OF ERROR
{¶23} Thereafter, Appellant timely filed her notice of appeal. She raises the
following two Assignments of Error:
{¶24} “I. THE TRIAL COURT ERRED IN FINDING THAT THE MINOR CHILD
COULD NOT BE PLACED WITH THE APPELLANT WITHIN A REASONABLE LENGTH
OF TIME.
{¶25} “II. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS
SUFFICIENT EVIDENCE TO GRANT THE MOTION FOR PERMANENT CUSTODY.”
Fairfield County, Case No. 2023 CA 26 6
{¶26} For the sake of judicial economy, we will address the assignments of error
out of order.
II.
{¶27} In Appellant’s second Assignment of Error, Appellant argues the trial court
erred in finding there was sufficient evidence to grant Appellee’s motion for permanent
custody. We agree.
{¶28} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right. In re Murray,
52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S. 64592 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must be based
on clear and convincing evidence. R.C. §2151.414(B)(1). 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). “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.” Id. at 477,
120 N.E.2d 118. If some competent, credible evidence going to all the essential elements
of the case supports the trial court’s judgment, an appellate court must affirm the judgment
and not substitute its judgment for that of the trial court. C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶29} 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 evidence in the parties’
Fairfield County, Case No. 2023 CA 26 7
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159.
Requirements for Permanent Custody Awards
{¶30} R.C. §2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. §2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing 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.
{¶31} Following the hearing, R.C. §2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child’s
parents within a reasonable time or should not be placed with the child’s
parents.
Fairfield County, Case No. 2023 CA 26 8
(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, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division D(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary agency in another state.
(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.
{¶32} 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 circumstances delineated in R.C.
§2151.414(B)(1) is present before proceeding to a determination regarding the best
interest of the child.
{¶33} In the case sub judice, the trial court found that R.C. §2151.414(B)(1)(a)-
(c),(e) do not apply to either parent, but R.C. §2151.414(B)(1)(d) does apply.
Fairfield County, Case No. 2023 CA 26 9
Best Interest of the Child
{¶34} In determining the best interest of the child at a permanent custody hearing,
R.C. §2151.414(D)(1) mandates the trial court must 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) This wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard to 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
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two month period, or the child has been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(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;
Fairfield County, Case No. 2023 CA 26 10
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶35} No one element is given greater weight or heightened significance. In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816.
{¶36} In the case sub judice, we note the trial court found that C.G. is very bonded
to Appellant, B.G., and the foster family. The trial court further found Appellant and B.G.
have not shown that they can maintain their sobriety, employment, and housing outside
of a highly structured environment. The trial court also notes Appellant and B.G. lost
custody of older children. The trial court has also found that for over the past year
Appellant and B.G. have successfully worked the case plan, maintained sobriety, gained
employment, participated and completed mental health counseling, substance abuse
counseling, and parenting classes.
{¶37} What is also noted is that the Agency has not pointed to any part of the case
plan where Appellant or B.G. were deficient in the prior year, unlike with their other
children’s case plan where neither engaged with the Agency. In addition, the Guardian
ad Litem does not recommend permanent custody be granted to the Agency. He feels
Appellant and B.G. should be given an opportunity to show they can maintain their
sobriety, employment, and safe living arrangements.
{¶38} Appellee’s argument at the permanent custody hearing focused on the need
for C.G. to have a permanent, stable living arrangement. However, no one element is
given greater weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, 862 N.E.2d 816. Appellant and B.G. have been meeting the goals and objectives
of the case plan for more than the past year with no deficiency or shortcomings noted by
Fairfield County, Case No. 2023 CA 26 11
the Agency. Yet the Agency did not find reunification possible. We fail to see how the
case plan was designed in a way to achieve reunification, and how reasonable efforts
were made at reunification as required by R.C. §2151.419(A)(1). The case plan should
have been designed to provide sufficient time to show their ability to maintain their
sobriety, employment, and a safe, permanent, and stable living arrangement for C.G.
{¶39} Based upon the foregoing, we find the evidence was insufficient to grant the
Agency’s motion for permanent custody.
{¶40} Accordingly, Appellant’s second Assignment of Error is sustained.
I.
{¶41} Based upon our disposition in Appellant’s second Assignment of Error, we
decline to address Appellant’s first Assignment of Error.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division of Fairfield County, Ohio, is reversed and remanded for further
proceedings consistent with this opinion.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
JWW/br 1019