In re L.R. ( 2013 )

[Cite as In re L.R., 2013-Ohio-3104.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: L.R., M.R. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 13CA004
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Holmes County Court
of Common Pleas, Juvenile Division, Case
Nos. 10-N-115, 10-N-116
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2013
APPEARANCES:
For - Appellee For - Appellant
STEPHEN KNOWLING
SEAN WARNER CLARKE W. OWENS
Holmes County Prosecuting Attorney 132 S. Market Street, Suite 204
164 E. Jackson Street Wooster, OH 44691
Millersburg, OH 44654
GUARDIAN AD LITEM
DAVID M. HUNTER
244 W. Main Street
Loudonville, OH 44842
[Cite as In re L.R., 2013-Ohio-3104.]
Gwin, P.J.
{¶1} Appellant-father, Leonard Rice [“Father”] appeals the March 1, 2013,
judgment entry of the Holmes County Court of Common Pleas, Juvenile Court Division,
which terminated his parental rights with respect to his minor children J.R. and M.R. and
granted permanent custody of the children to appellee, Holmes County Department of
Jobs and Family Services (“HCDJFS”).
PROCEDURAL HISTORY
{¶2} On May 21, 2010, HCDJFS filed a Complaint in Neglect, Abuse, and
Dependency for the two children, J.R. (03/01/1998) and M.R (01/11/2001). On July 7,
2010, the parties stipulated to a finding of Neglect under R.C. 2151.03(A)(3) and
Dependency under R.C. 2151.04(C), and the other sections were dismissed. Protective
supervision was ordered as of July 12, 2010, with case plan at disposition.
{¶3} Melissa Fugett, former intake and ongoing worker with HCDJFS testified
that she requested and received temporary custody of the children in August 2010 due
to the parents' failure to begin services and failure to submit to drug screens. Both
children remain in the agency's custody. Ms. Fugett, testified that Father does have a
prescription for oxycodone,
{¶4} A hearing was held August 30, 2010 to review the grant of custody and
served as an initial hearing on HCDJFS' motion for contempt against both parents. Both
the grant of custody and the motion for contempt were based in part on the parents'
refusal to submit to drug screens when requested by the agency. A second contempt
motion was filed against Father in May 2011 for failure to submit to drug screens and
failing to attend the individual counseling required by the case plan. At the time she filed
Holmes County, Case No. 13CA004 3
the second contempt motion, Ms. Fugett said Father “wasn't doing drug screens, he
wasn't attending visitation regularly, he wasn't, uh, seeing a counselor. He wasn't doing
anything..." (T.22).
{¶5} Ms. Fugett stated that Leonard attended counseling and failed to submit to
drug screens sporadically throughout the case. When Leonard did submit to drug
screens he tested positive for marijuana and admitted to Ms. Fugett that he used
marijuana and that he should stop. Both parents had moved from house to house during
the pendency of the case. At one point, Father was incarcerated for failure to pay child
support.
{¶6} Ms. Fugett was asked about visits by the parents with the children. She
testified the supervised visits were "inconsistent" with lots of no-shows. She said that
sometimes the parents did well but sometimes the parents were "out of it" which was
evidenced by them falling asleep and slurring their words. She also testified the children
noticed this behavior by their parents and were upset by it. She stated the visits were
initially one-hour visits twice every week but transportation problems resulted in a
change to a single visit of one and one-half hours per week. She stated the parents
rarely used the entire ninety minutes. She did state that the majority of the visits by the
parents at HCDJFS offices were positive visits.
{¶7} Mr. Klinger of HCDJFS testified he supervised approximately 116 visits by
the parents with their children. Mr. Klingler said, "for the most part visits by [Father] have
gone well." However, he noted Father fell asleep approximately five times during visits
and the last of those was at least one year before the hearing date. He also stated that
on one occasion, Father was slurring his speech and appeared to be under the
Holmes County, Case No. 13CA004 4
influence and that incident was at least one year before the hearing date. Mr. Klingler
stated one of the biggest problems in the visits was Father’s discussion of these cases
with the children. Mr. Klingler said he had to warn Father about this problem "a number
of times." Mr. Klinger further testified Father was adamant that he would not lose
permanent custody of his children.
{¶8} Ms. Fugett left HCDJFS in August 2012. Ms. Fugett characterized both
parents as lacking motivation to change during the entire time she was the ongoing
caseworker for the children (T. 8-10). She testified to numerous occasions in which both
parents did not comply with the case plan requirements or failed to follow the rules of
unsupervised visitation leading to the termination of such visits after only a brief period.
{¶9} Kati Vaughn, current intake worker for HCDJFS stated she assisted
current ongoing worker, Luella Gilbert on occasion. Ms. Vaughn stated that she
administered a drug screen to Father on November 7, 2012 (T. 57). She indicated that
the screen was requested due to concerns with Father's condition at a supervised visit
with his children that day or the day prior to the request.
{¶10} Joe Messner counseled Father sporadically from September 2010 until
April 2012. There were 12 appointments in 19 months with 14 cancellations. (T. 89). Mr.
Messner testified that Father was unable to sustain long periods of motivation and that
Father's level of motivation was externally, as opposed to internally, driven which
appeared to be tied to his case plan (T. 92). Father cancelled his last appointment with
Mr. Messner on April 10, 2012 and indicated he would not return stating Father felt the
counseling "had done as much good as it was going to do." (T. 93).
Holmes County, Case No. 13CA004 5
{¶11} Jackie Taylor testified that she is a caseworker for the Holmes County
Child Support Enforcement Agency (T. 130). She stated that Father has only made one
payment during the pendency of his case and has been incarcerated for failure to pay
his obligations (T. 133).
{¶12} Roger Estill, Chief Probation Officer for Holmes County Common Pleas
Court, testified that the children’s mother has been incarcerated for several different
drug charges during the last two and a half years (T. 164). Her most recent
incarceration from August to December of 2012 was the result of a probation violation
which mother admitted to theft of Father’s oxycodone.
{¶13} Bridget Lemberg, lab director of Forensic Fluids, testified that Father
tested positive for cocaine from the test administered by Kati Vaughn on November 7,
2012 (T. 228). Father's positive test result was admitted as State's Exhibit A.
{¶14} Luella Gilbert is the current ongoing HCDJFS caseworker assigned to the
children. Ms. Gilbert testified that she began working on the case in August 2012 (T.
255). She indicated that she was unaware of any employment by Father from that point
to the present (T. 274). She indicated that Father's home was adequate until Mother
was released from prison in early December. Since that time, the condition of the home
has deteriorated (T. 281-283). Ms. Gilbert indicated both Father and Mother have
refused drug screens in December and January. (T. 271).
{¶15} Ms. Gilbert was aware that Father had re-engaged in counseling with
Scott Self in October 2012. Ms. Gilbert testified Father told her he had signed back up
"due to his attorney telling him that is what he needed to do to help him with his court
case." (T. 276). In spite of his counseling, Father still refused to take drug screens after
Holmes County, Case No. 13CA004 6
November 20, 2012. Ms. Gilbert testified she was present at Father's home on
November 7, 2012 when Kati Vaughn administered a drug screen to Father. During this
meeting, Father mentioned that J.R. requested to extend visitation to two hours. Ms.
Gilbert asked Father if he wished the visits to be extended. Father stated he did not
know if he could sit in the small visitation room at the agency for two hours. Ms. Gilbert
told Father that it was still time he would be able to spend with his children and that Ms.
Gilbert would request an additional hour be added if Father would commit to coming for
that duration. Father would not commit to coming for two hours to visit his children (T.
277-278). Ms. Gilbert also noted that on the last supervised visit on the Friday prior to
the hearing, Father's speech was slurred and he appeared "out of it" prompting Ms.
Gilbert to inquire multiple times if he was all right (T. 279).
{¶16} Scott Self confirmed that Father had begun counseling in November of
2012 and that Father was currently in stage three of five stages of change. Father has
not begun any action phase of the stages of change and currently in the planning stage
(T. 108). He further testified Father needs some type of support going forward but was
unable to specify what type of support because Father had not completed the exit
interview as of the date of the evidentiary hearing. He indicated Father was diagnosed
with Alcohol Dependency; a condition he said is more serious than Alcohol Abuse. He
stated relapses for someone like Father are very common and occur more often than
not.
{¶17} Ken Klingler testified that Father and Mother’s visits went well with the
children when the parents did attend (T. 140). Mother's incarceration precluded her from
attending during large stretches (T. 144). Father would regularly miss visits and would
Holmes County, Case No. 13CA004 7
leave visits early due to transportation problems (T. 147). Father had to be warned
repeatedly not to discuss the case with his children (T. 153).
{¶18} Mark Leinbach testified about his work in counseling with J.R. He worked
with J.R. for about six months after HCDJFS became involved. He stated that J.R.
made significant progress and Mr. Leinbach determined further counseling was not
needed. He stated J.R. made progress in dealing with the transition from home to foster
care and his problem behaviors at school decreased.
{¶19} Patricia Tabereaux also testified about the progress of J.R. and M.R. She
testified they are both "doing great in foster care." She said both kids are involved in a
snowboarding club and J.R. is on the Merit Roll. She said she has seen both children
interact with their foster parents and both kids get along well with them. She summed up
her testimony by saying "[J.R.] and [M.R.] have improved a whole lot since being
removed from the care of their father and mother."
{¶20} Two of J.R.'s teachers testified at the evidentiary hearing. Their testimony
showed J.R. was often tired and hungry when he came to school from his parents'
home. They said his work was never done and he lost a lot of weight. Their testimony
was that he did not do well with structure and rules, was messy, quite often angry,
obstinate and needed to be re-directed a lot. Ms. McDowell testified that while Jesse
was in his parents' care during the sixth grade he "missed many days of school."
{¶21} Both teachers testified about the significant change they saw in J.R. after
he was placed in foster care. They report he has gained weight, is happy, well kept,
focused, has more friends and "is on the right track." They also reported his attendance
is very good at this time.
Holmes County, Case No. 13CA004 8
{¶22} Deb Yoder, J.R.'s foster mother testified that she and her family have a
strong bond with J.R. (T. 246). She indicated he is a pleasure to have in their home.
She stated J.R. looks up to her three sons and is considering a career in the military
after spending time with her son who is currently in the Air Force (T. 248). She also
indicated that J.R. is very good with younger children and he dotes on his toddler foster
sister (T. 247). She also noted that J.R. sees M.R. often as well as relatives such as Pat
Tabereaux. (T. 245). Mrs. Yoder indicated she has M.R. in her home so that J.R. can
visit her and the Yoder’s and M.R.'s foster parents, the DeWits, take weekend
vacations together (T. 243-244). Mrs. Yoder stated that it is her intention to adopt J.R.
should permanent custody be granted to HCDJFS. (T. 249). She indicated M.R. was
having more trouble accepting foster care, but believed "she's not old enough to
understand" Ms. Yoder testified her family interacts with M.R.’s foster family on a
regular basis. She reported that M.R. stays in her home about every other weekend.
{¶23} Attorney David Hunter, Guardian Ad Litem for both the children submitted
a written report to the Court prior to the evidentiary hearing. He recommended
HCDJFS's Motion for Permanent Custody be granted. The Court also conducted an in
camera interview of the children after the conclusion of the evidentiary hearing.
{¶24} On March 1, 2013, the trial court filed Findings of Fact and Judgment
Entries in each child’s case, which terminated Father’s parental rights with respect to his
minor children and granted permanent custody of the children to HCDJFS.
{¶25} It is from these entries that Father has appealed.
Assignments of Error
{¶26} On appeal, Father asserts the following assignment of error,
Holmes County, Case No. 13CA004 9
{¶27} “I. THE HOLMES COUNTY JUVENILE COURT ERRED BY FINDING
THAT IT WAS IN THE BEST INTERESTS OF BOTH CHILDREN TO TERMINATE
PARENTAL RIGHTS, AND THE ORDER OF PERMANENT CUSTODY WAS
OTHERWISE INSUFFICIENTLY SUPPORTED BY THE EVIDENCE.
{¶28} “II. THE COURT LACKED JURISDICTION TO GRANT A MOTION FOR
PERMANENT CUSTODY OVER OBJECTION OF COUNSEL WHEN THE
STATUTORY FRAMEWORK FOR SERVICE OF SUMMONS ON THE MOTION WAS
NOT COMPLIED WITH. THE COURT ALSO LACKED JURISDICTION BECAUSE THE
MOTION FAILS TO ALLEGE BEST INTERESTS. THE LATTER FACTOR IS PLAIN
ERROR.
{¶29} “III. THE COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF
LEONARD RICE BY ADMITTING INTO EVIDENCE A DRUG TEST RESULT LACKING
IN PROPER FOUNDATION.
{¶30} “IV. IT WAS ERROR TO TERMINATE FATHER'S PARENTAL RIGHTS
WHEN THE COURT HAD PREVIOUSLY DENIED HIS MOTION TO MODIFY
VISITATION WITHOUT A HEARING, IN VIOLATION OF DUE PROCESS.”
I.
{¶31} In his first assignment of error, Father argues that the trial court’s decision
granting permanent custody of his minor children was based upon insufficient evidence.
A. Burden Of Proof
{¶32} “[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. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
Holmes County, Case No. 13CA004 10
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a
parent's rights has been described as, “* * * the family law equivalent to the death
penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th
Dist.1991). Therefore, parents “must be afforded every procedural and substantive
protection the law allows.” Id.{¶33} An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986).
B. Standard of Review
{¶34} The Ohio Supreme Court has delineated our standard of review as
follows,
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. See Ford v. Osborne, 45 Ohio St. 1,
12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v.
Rimenik, 115 Ohio St. 11, 152 N.E. 14.
Holmes County, Case No. 13CA004 11
{¶35} Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court
of appeals will affirm the trial court's findings “if the record contains competent, credible
evidence by which the court could have formed a firm belief or conviction that the
essential statutory elements for a termination of parental rights have been established.”
In re Adkins, 5th Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431,
2006 WL 242557, ¶17.
{¶36} In Cross, the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
C. Requirements for Permanent Custody Awards
{¶37} 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 of a motion for permanent custody of
Holmes County, Case No. 13CA004 12
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.
{¶38} 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;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period, or the
Holmes County, Case No. 13CA004 13
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.
{¶39} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶40} 1. The child had been in the temporary custody of the agency for a
period of time in excess of twelve of the prior twenty-two consecutive months –
R.C. 2151.414(B)(1)(d).
{¶41} In the case sub judice, the trial court found, pursuant to R.C. 2151.
414(B)(1)(d) that the children had been in the temporary custody of the agency for a
period of time in excess of twelve of the prior twenty-two consecutive months.
{¶42} Before a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22–month period.” In re: C.W., 104 Ohio St.3d 163, 2004–Ohio–6411, 818
N.E.2d 1176 at paragraph one of the syllabus. When calculating this time period, the
court in C.W. cautioned, “the time that passes between the filing of a motion for
Holmes County, Case No. 13CA004 14
permanent custody and the permanent-custody hearing does not count toward the 12–
month period set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004–Ohio–6411 at ¶ 26,
818 N.E.2d at 1180. Accord, In re: N.C., 5th Dist. No. 2011-CA-00141, 2011-Ohio-6113,
¶32.
{¶43} In the case at bar, the grant of temporary custody of both children to
HCDJFS occurred on August 27, 2010. The motion for permanent custody was filed on
May 21, 2012. Thus, the children had been in the temporary custody of HCDJFS for at
least 12 months of a consecutive 22-month period at the time the motion for permanent
custody was filed1. Father has not challenged the twelve of twenty-two month finding.
{¶44} This finding alone, in conjunction with a best-interest finding, is sufficient
to support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,
2008–Ohio–5458, ¶ 45.
2. The Best Interest of the Children.
{¶45} 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.
1
Aug. 22, 2010 to May 21, 2012 = 634 days (1yr., 8 months, 25 days).
Holmes County, Case No. 13CA004 15
{¶46} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d
309, 315, 642 N.E.2d 424(8th Dist.1994). A finding that it is in the best interest of a child
to terminate the parental rights of one parent is not dependent upon the court making a
similar finding with respect to the other parent. The trial court would necessarily make a
separate determination concerning the best interest of the child with respect to the
rights of the mother and the rights of the father.
{¶47} The trial court made findings of fact regarding the children’s best interest.
It is well-established that “[t]he discretion which the juvenile court enjoys in determining
whether an order of permanent custody is in the best interest of a child 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. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting In re
Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).
{¶48} As an appellate court, we neither weigh the evidence nor judge the
credibility of 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. No. CA-5758, 1981 WL 6321(Feb. 10, 1982). “Reviewing courts
should accord deference to the trial court’s decision because the trial court has had the
opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that
cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St.3d 71,
523 N.E.2d 846 (1988).
Holmes County, Case No. 13CA004 16
{¶49} In the present case, the trial court's decision indicates it considered the
best interest factors. Upon review of the record, it is clear that the record supports the
trial court's finding that granting the motion for permanent custody is in J.R.’s and M.R.’s
best interest. The trial court concluded the children's need for legally secure placement
could not be achieved without awarding permanent custody to HCDJFS.
{¶50} The record makes clear that Father failed to complete the majority of the
case plan provided by HCDJFS and failed to meet even the basic needs of the children.
{¶51} In the case at bar, in addition to the testimony, the trial court considered
the wishes of the children and the report of the GAL.
{¶52} As set forth in our Statement of the Facts and Case, supra, Father failed
to remedy the problems that initially caused the removal of the child from the home.
Father was not consistent with his case plan. Very little if anything, has changed with
respect to Father since this case began. He does not have stable housing. He does not
have steady employment. He continues to battle problems with drugs and alcohol. He
continues to miss visitations and to be unable or unwilling to follow the rules when he
does have visits with the children.
{¶53} On the other hand, the children have begun to accept that their parents
are unwilling or unable to do what is necessary to reunify the family. By the date of the
evidentiary hearing, the children had been in the custody of HCDJFS for almost 29
months.
Holmes County, Case No. 13CA004 17
D. Conclusion.
{¶54} For these reasons, we find that the trial court’s decision that permanent
custody to HCDJFS was in J.R.’s and M.R.’s best interest was based upon competent,
credible evidence and is not against the manifest weight or sufficiency of the evidence.
{¶55} Father’s first assignment of error is overruled.
II.
{¶56} In his second assignment of error, Father contends that the trial court
lacked jurisdiction to conduct a permanent custody proceeding because he was not
personally served with the motion for permanent custody.
{¶57} R.C. 2151.414(A)(1) mandates the juvenile court must schedule a hearing
when a motion for permanent custody is filed, and provide notice of the filing of the
motion and of the hearing, in accordance with section 2151.29 of the Revised Code, to
all parties to the action and to the child's guardian ad litem. Service may be made by
delivering a copy to the person notified, by leaving a copy at the person's usual place of
residence, or be sent by registered or certified mail. R.C. 2151.29. Father is a proper
party pursuant to Juv. R. 2(Y); therefore, was entitled to notice.
{¶58} Juv. R. Rule 20 reads:
{¶59} (A) Service: when required
Written notices, requests for discovery, designation of record on
appeal and written motions, other than those which are heard ex parte,
and similar papers shall be served upon each of the parties.
(B) Service: how made
Holmes County, Case No. 13CA004 18
Whenever under these rules or by an order of the court service is
required or permitted to be made upon a party represented by an attorney,
the service shall be made upon the attorney unless service is ordered by
the court upon the party. Service upon the attorney or upon the party shall
be made in the manner provided in Civ. R. 5(B).
{¶60} In the case at bar, the "PROOF OF SERVICE" on the permanent custody
motion certifies that a copy of the motion was served upon Court-appointed Counsel for
each parent and the Guardian ad litem. Such service of a copy of the motion on the
attorneys for the parents is consistent with Juv. R. 20(B).
{¶61} As the record indicates, Father was present with counsel for both days of
the evidentiary hearing. Between the original filing of the motion for permanent custody
in May 2012 and the actual hearing in January 2013, Father subpoenaed witnesses on
his behalf and moved to have his children interviewed in camera by the trial court.
Father further filed a motion to dismiss on June 11, 2012.
{¶62} It is clear Father knew HCDJFS filed a motion to terminate his parental
rights and the trial date. Father was represented by counsel at the hearing. We find
Father was provided with appropriate notice of the permanent custody hearing.
{¶63} Father’s second assignment of error is overruled.
III.
{¶64} In his third assignment of error, Father argues that the November 7, 2012
drug screen test of Father that indicated the presence of cocaine in Father’s system
was improperly admitted into evidence.
Holmes County, Case No. 13CA004 19
{¶65} At the outset we note in Williams v. Illinois, ––– U.S. ––––, 132 S.Ct.
2221, 183 L.Ed. 2d 89 (2012), the Supreme Court tackled the constitutionality of
allowing an expert witness to discuss a non-testifying expert's statements when the non-
testifying expert's statements are not admitted in evidence.
{¶66} The defendant in Williams was convicted of rape. At trial, the prosecution
called an expert witness who testified that a DNA profile produced by an outside
laboratory, Cellmark, matched a profile produced by the state police lab using a sample
of the defendant's blood. Id. at 2227. The defendant in Williams argued that the
Confrontation Clause was violated when the witness “referred to the DNA profile
provided by Cellmark as having been produced from semen found on the victim's
vaginal swabs.” Id. According to the defendant, his right to confrontation was violated
because the witness did not have personal knowledge that the profile produced by
Cellmark was based on vaginal swabs taken from the victim.
{¶67} Justice Alito, Chief Justice Roberts, Justice Kennedy, and Justice Breyer
reasoned that the testifying expert could discuss the non-testifying expert’s statements
because the non-testifying expert's statements were not offered for their truth, but only
to explain the assumption on which the testifying expert based her opinion. Id. at 2235–
40. In dissent, Justices Kagan, Scalia, Ginsburg, and Sotomayor concluded that the
non-testifying expert's statements were being offered for their truth and were
testimonial, and thus found a Confrontation Clause violation. Id. at 2268– 72 (Kagan, J.,
dissenting). In a concurring opinion, Justice Thomas agreed that the non-testifying
expert's statements were offered for their truth but concluded that they “lacked the
requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the
Holmes County, Case No. 13CA004 20
Confrontation Clause.” Id. at 2255 (Thomas, J., concurring). Accord, U.S. v. Soto,
__F.3d__, 2013 WL 3156598(1st Cir. June 24, 2013).
{¶68} In addition, even if error occurred in the admission of the test results, it
was harmless. We note that any error will be deemed harmless if it did not affect the
accused's “substantial rights.” Before constitutional error can be considered harmless,
we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”
United States v. Chapman, 386 U.S.18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where
there is no reasonable possibility that unlawful testimony contributed to a conviction, the
error is harmless and therefore will not be grounds for reversal. State v. Conway, 108
Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman; State v. Lytle,
48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in
part on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d
1154(1978).
{¶69} In the case at bar, evidence independent of the test results was introduced
concerning Father’s battle with drug and alcohol abuse. Father has failed to establish
that absent the admission of the November 7, 2012 test results, the trial court would
have denied HCDJFS’ motion for permanent custody.
{¶70} Father’s third assignment of error is denied.
IV.
{¶71} In his fourth assignment of error, Father argues that he was denied due
process by the court’s denial of his motion to modify visitation without a hearing.
{¶72} “A fundamental requirement of due process is ‘the opportunity to be heard’
* * * at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S.
Holmes County, Case No. 13CA004 21
545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). “Due process of law implies, in its most
comprehensive sense, the right of the person affected thereby to be present before the
tribunal * * * to be heard, by testimony or otherwise, and to have the right of
controverting, by proof, every material fact which bears on the question of right in the
matter involved.” Williams v. Dollison, 62 Ohio St.2d 297, 299, 405 N.E.2d 714(1980).
{¶73} In the case at bar, Father was given an opportunity to demonstrate his
fitness and ability to parent his children at the evidentiary hearing on the motion for
permanent custody. Evidence at that hearing demonstrated that when offered additional
visitation time with the children under supervision, Father declined.
{¶74} The children love Father and Father loves his children and has developed
a bond. The evidence demonstrated the successful efforts Father had made in the case
to regain custody of his children. On that point, the evidence demonstrates that any
improvement that Father has made in his life is tentative and, perhaps, temporary, and
that he is at risk of relapse. The trial court found that, regardless of Father’s compliance
with aspects of his case plan, he was still not able to be a successful parent to his
children. In the case of In re: Summerfield, 5th Dist. No. 2005CA00139, 2005-Ohio-
5523, this court found where, despite marginal compliance with some aspects of the
case plan, the exact problems that led to the initial removal remained in existence, a
court does not err in finding the child cannot be placed with the parent within a
reasonable time.
{¶75} Based upon the foregoing, as well as the entire record in this case, the
trial court properly denied Father’s motion to modify visitation.
Holmes County, Case No. 13CA004 22
{¶76} Because clear and convincing evidence in the record supports the trial
court’s judgment, we overrule Father’s four assignments of error in their entirety, and
the judgment of the Holmes County Court of Common Pleas, Juvenile Court Division is
affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0703
[Cite as In re L.R., 2013-Ohio-3104.]
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: L.R., M.R. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 13CA004
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Holmes County Court of Common Pleas, Juvenile Court Division is
affirmed.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE