In re H.G.

[Cite as In re H.G., 2012-Ohio-1977.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. Sheila G. Farmer, P. J.
Hon. John W. Wise, J.
H.G., Hon. Julie A. Edwards, J.
F.G., JR., and
F.G. Case Nos. 11 CA 42, 11 CA 43
MINOR CHILDREN OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case Nos. 10 JC 00387 and
11 JC 00296
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 3, 2012
APPEARANCES:
For Appellee For Appellant Mother
DANIEL G. PADDEN LINDSEY K. DONEHUE
PROSECUTING ATTORNEY 116 Southgate Parkway
139 West 8th Street Post Office Box 464
Post Office Box 640 Cambridge, Ohio 43725
Cambridge, Ohio 43725
For Appellant Father
ANDREW J. WARHOLA
110 North 7th Street
Cambridge, Ohio 43725
Guernsey County, Case No. 11 CA 42, 11 CA 43 2
Wise, J.
{¶1} Appellants Cara Gibson and Fred Gibson appeal the decision of the
Guernsey County Court of Common Pleas, Juvenile Division, which granted permanent
custody of their three minor children to Appellee Guernsey County Children Services.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts leading to this appeal are as follows.
{¶3} Appellants Cara Gibson and Fred Gibson are the biological parents of the
three minor children at issue in this matter, H.G., born 11/4/07, F.G., Jr., born 9/17/09,
and F.G., born 5/19/11.
{¶4} On September 22, 2009, the Guernsey County Juvenile Court awarded
Temporary custody of H.G. to the Guernsey County Children Services Board
(hereinafter "GCCSB").
{¶5} On October 6, 2009, the Guernsey County Juvenile Court awarded
Temporary custody of F.G., Jr. to GCCSB.
{¶6} On November 19, 2009, the Guernsey County Juvenile Court terminated
Temporary Custody with GCCSB, and awarded temporary custody to paternal aunt,
Shelley Valentine. At that time, protective supervision was awarded to GCCSB for a six
month period.
{¶7} On December 14, 2009, the Guernsey County Juvenile Court terminated
the case, reunifying both children with their parents.
{¶8} On January 4, 2010, F.G., Jr. was safety planned with paternal aunt, due
to allegations of medical neglect.
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 3
{¶9} On July 2, 2010, GCCSB received a report that H.G. was found wandering
alone near the Cambridge City Park. Allegations of neglect were substantiated by
GCCSB, and GCCSB received ex parte custody of H.G. and F.G., Jr. on July 2, 2010.
{¶10} On July 6, 2010, temporary custody was terminated with GCCSB and
given to paternal aunt, Shelley Valentine. Case plan objectives were established by
GCCSB for both Appellant-Mother and Appellant-Father at that time.
{¶11} On September 23, 2010, Appellant-Mother was indicted by the Grand Jury
for "Theft", "Identity Fraud", and "Misuse of Credit Cards".
{¶12} On March 24, 2011, Appellant-Mother was convicted of "Identity Fraud", a
felony of the Fifth Degree, and was sentenced to eleven months of prison (suspended),
3 years probation.
{¶13} On August 24, 2011, Appellant-Mother was incarcerated at Eastern Ohio
Correction Center for a period of four to six months.
{¶14} On September 27, 2010, paternal aunt, Shelley Valentine, returned the
children to GCCSB, stating she could no longer handle the children. GCCSB was
granted ex parte custody of H.G. and F.G.
{¶15} On December 21, 2010, H.G. and F.G., Jr. were adjudicated dependent
children, and neglect was also found with respect to H.G. Case plans dated August 13,
2010 and September 30, 2010 were approved at that time.
{¶16} On May 19, 2011, F.G. was born.
{¶17} On May 23, 2011, the GCCSB was granted ex parte custody of F.G. upon
that child's release from the hospital after birth.
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 4
{¶18} On May 23, 2011, GCCSB filed a complaint alleging F.G. to be an abused,
neglected, and dependent child.
{¶19} On June 10, 2011, GCCSB filed an amended complaint requesting
permanent custody of F.G, and a motion for permanent custody of H.G. and F.G., Jr.
{¶20} On June 16, 2011, GCCSB requested relief from reasonable efforts for
F.G.
{¶21} On August 10, 2011, a case plan was filed, which contained the same
requirements for both parents, but added F.G. to the case plan.
{¶22} On September 12 and 13, 2011, and November 10, 2011, a Permanent
Custody hearing for all three children was held.
{¶23} On December 9, 2011, the trial court filed its order granting permanent
custody of all three children to GCCSB.
{¶24} Appellant-Mother and Appellant-Father filed separate appeals as to both
juvenile court case numbers, raising the following errors for review:
ASSIGNMENTS OF ERROR
APPELLANT-MOTHER
{¶25} “I. THE TRIAL COURT SHOULD NOT HAVE GRANTED PERMANENT
CUSTODY BECAUSE THE CHILDREN COULD HAVE BEEN PLACED WITH THE
PARENTS WITHIN A REASONABLE TIME AND THE GRANTING OF PERMANENT
CUSTODY WAS NOT IN THE CHILDREN’S BEST INTEREST.
{¶26} “A) H.G., F.G., AND F.G. COULD HAVE BEEN PLACED WITH THEIR
PARENTS WITHIN A REASONABLE TIME BECAUSE NONE OF THE SIXTEEN
FACTORS STATED IN 2151.414(E) APPLY.
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 5
{¶27} “B) THE COURT DID NOT FULLY AND SPECIFICALLY DISCUSS ALL
FIVE FACTORS WHICH DETERMINE THE BEST INTEREST OF THE CHILDREN AS
REQUIRED BY ORC 2151.414(D).
{¶28} “II. THE COURT DID NOT MAKE A DETERMINATION THAT
GUERNSEY COUNTY CHILDREN SERVICES WERE NOT REQUIRED TO MAKE
REASONABLE EFFORTS TO PREVENT THE REMOVAL OF THE CHILDREN FROM
THEIR HOME AS REQUIRED BY 2151.419(A)(2).”
APPELLANT-FATHER
{¶29} “I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY
OF THE THREE CHILDREN TO THE GUERNSEY COUNTY CHILDREN SERVICES
BOARD BECAUSE IT FAILED TO FOLLOW THE REQUIREMENTS OF R.C.
2151.414(B)(2), 2151.413(D)(2) AND 2151.419(A)(2).
{¶30} “II. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY
OF THE THREE CHILDREN TO THE GUERNSEY COUNTY CHILDREN SERVICES
BOARD BECAUSE IT FAILED TO SPECIFICALLY CONSIDER AND ADDRESS ALL
FIVE FACTORS CONTAINED IN R.C. 2151.414(D)(1) REGARDING THE BEST
INTERESTS OF THE CHILDREN AND IT FAILED TO EXPLAIN ITS REASONING
FROM THE EVIDENCE AS TO EACH FACTOR.
{¶31} “III. THE TRIAL COURT ERRED IN AWARDING PERMANENT
CUSTODY OF THE THREE CHILDREN TO THE GUERNSEY COUNTY CHILDREN
SERVICES BOARD BECAUSE CHILDREN SERVICES FAILED TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT THE CHILDREN COULD NOT BE
REUNIFIED WITH THEIR FATHER WITHIN A REASONABLE PERIOD OF TIME OR
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 6
SHOULD NOT BE PLACED WITH THE PARENT FATHER PURSUANT TO R.C.
2151.414(E).”
{¶32} For purposes of judicial economy, we shall address the two cases
together as they raise the same legal challenges
ASSIGNMENTS I, II (Case No. 11 CA 42)
ASSIGNMENTS I, II AND III (CASE NO. 11 CA 43)
{¶33} Appellants contend the trial court erred in determining that the children
cannot or should not be placed with either of the parents within a reasonable time and in
granting permanent custody of their minor children to GCCSB. We disagree.
{¶34} In this case, GCCSB moved the trial court for permanent custody pursuant
to R.C. §2151.414(B)(2), which states in pertinent part:
{¶35} “(B)(2) With respect to a motion made pursuant to division (D)(2) of
section 2151.413 of the Revised Code, the court shall grant permanent custody of the
child to the movant if the court determines in accordance with division (E) of this section
that the child cannot be placed with one of the child's parents within a reasonable time
or should not be placed with either parent and determines in accordance with division
(D) of this section that permanent custody is in the child's best interest.”
{¶36} In determining whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, a trial court is to
consider the existence of one or more factors under R.C. §2151.414(E), including
whether or not:
{¶37} “Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 7
the parents to remedy the problems that initially caused the child to be placed outside
the home, the parent has failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child's home. In determining
whether the parents have substantially remedied those conditions, the court shall
consider parental utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to the parents
for the purpose of changing parental conduct to allow them to resume and maintain
parental duties.” See R.C. §2151.414(E)(1).
{¶38} While appellants maintain that the trial court erred in finding that the
children could not or should not be placed with their parents within a reasonable time,
we disagree. We note that there was extensive testimony that Appellants failed to
comply with their case plans.
{¶39} Caseworker Sylvia Lawson testified as to the case plan of the parents,
and to GCCSB’s efforts to reunify the children with their parents. She testified that the
safety plan implemented by the agency required: (1) the parents provide a safe and
stable home for the children, free of domestic violence and drug use; (2) that the
parents schedule and attend the medical appointments for all three children; (3) that the
parents follow any and all mental health recommendations; (4) that parents sign
releases of information; (5) that parents refrain from using illegal drugs and submit to
random drug screens; (6) that parents attend drug and alcohol counseling and follow all
recommendations, and (7) that there be no domestic violence. (Jr. 164-165).
{¶40} Ms. Lawson further testified that Appellant-Mother was non-compliant with
the case plan, as evidenced by the fact that she was incarcerated at the time of the
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 8
hearing for multiple positive drug tests; that the parents had been evicted from their
home and all utilities had been shut off; that Appellant-Mother continued to have
positive drug screens; that there had been threats of domestic violence by Appellant-
Father toward Appellant-Mother; that Appellant-Mother was currently under sanctions
from Department of Job and Family Services, and unable to receive any benefits due to
non-compliance with the service plan DJFS had put into effect; that Appellant-Mother
failed to attend the children's medical appointments despite being given notice by the
caseworker; that Appellant-Mother was not cooperating with Help Me Grow; that
Appellant-Mother had been unsuccessfully discharged with drug and alcohol services;
and that Appellant-Mother had been non-complaint with random drug screens. (T. at
166-167, 170-171, 174-175, 179).
{¶41} Ms. Lawson also provided testimony that Appellant-Father had not
complied with the case plan. She stated that Appellant-father had not found safe and
stable housing as he was homeless at the time of the permanent custody hearing; that
Appellant-Father had not kept the home free of domestic violence and illegal drugs; that
he had not complied with random drug screens, having taken only one of three
requested; and that he refused to speak with caseworker, refused to allow home visits,
and kicked the caseworker out of his home on two occasions. (T. at 189-194)
{¶42} Finally, Ms. Lawson testified that out of 104 scheduled visits with the
children, mother only attended 48 and father only attended 30. (T. at 183-184).
{¶43} The trial court also heard from Patty Johnson from Guernsey County Drug
and Alcohol Services, who testified that Appellant-Mother had poor attendance at
counseling, was in denial that she has a problem, and failed to successfully complete
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 9
treatment. (T. at 20, 24). She further testified that Appellant-Mother only attended 6 of
19 scheduled appointments, failed to attend group counseling multiple times, and
repeatedly tested positive for marijuana (T. at 20, 22).
{¶44} Further, Ben Troendley from Guernsey County Drug and Alcohol Services
testified that Appellant-Mother was required to attend group counseling every Thursday,
and that she had finally been dismissed from group for nonattendance on August 19,
2010. (T. at 32). Appellant-Mother was allowed to readmit to group on August 26, 2010,
but that she was again dismissed for nonattendance on September 19, 2010. (T. at 33).
She was readmitted to group again on December 21, 2010, but was terminated again
on February 17, 2011, after failing to attend between those dates, (T. at 34).
BEST INTERESTS
{¶45} Appellants also argue that the trial court's finding that it was in the
children's best interest for permanent custody to be granted was against the manifest
weight of the evidence.
{¶46} In determining the best interest of a child for purposes of permanent
custody disposition, the trial court is required to consider the factors contained in R.C.
§2151.414(D). These factors are as follows:
{¶47} “(1) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster care givers and out-of-home providers, and any other
person who may significantly affect the child;
{¶48} “(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;
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 10
{¶49} “(3) 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 * * *;
{¶50} “(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;
{¶51} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶52} Initially, we note that as an appellate court, we are not fact finders; 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 his or her judgment. Cross Truck v. Jeffries (Feb. 10, 1982),
Guernsey App.No. CA-5758. 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
(1978), 54 Ohio St.2d 279, 376 N.E.2d 578. Furthermore, it is well-established that the
trial court is in the best position to determine the credibility of witnesses. See, e.g., In re
Brown, Summit App.No. 21004, 2002-Ohio-3405, ¶ 9, citing State v. DeHass (1967), 10
Ohio St .2d 230, 227 N.E.2d 212{¶53} In the instant case, the caseworker testified that the children were doing
well in their foster placement; that F.G. Jr. had spent all but two weeks of his two years
of life in out-of-home placement; that F.G. had been in placement since her birth, and
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 11
that H.G. had spent fifteen months in out-of-home placement. (T. at 200-202). The
caseworker further testified that the children had a need for permanency, and that they
had never had a stable home (T. at 203). Further, the caseworker testified that the
children could not be reunited with their parents in a reasonable time, as GCCSB had
been working with the mother for two years with "zero progress" and had likewise been
working with father for the same length of time with "minimal cooperation". (T. at 204).
{¶54} In further support. the Guardian ad Litem testified that it was his
recommendation that permanent custody be granted to GCCSB, due to the GCCSB
history with the family, the fact that the parents were making no progress, and that they
had been dealing with the same issues for two years (T. at 367-368).
{¶55} Appellants, in their respective briefs, further argue that the trial court erred
in determining that the agency made the requisite efforts to prevent removal of the
children from their home or made it possible for the children to return safely home.
{¶56} Pursuant to R.C. 2151.419, the agency which removed the child from the
home must have made reasonable efforts to prevent the removal of the child from the
child's home, eliminate the continued removal of the child from the home, or make it
possible for the child to return home safely. The statute assigns the burden of proof to
the agency to demonstrate it has made reasonable efforts. R.C. 2151.419 is generally
not applicable to permanent custody proceedings. In re C.F., 113 Ohio St.3d 73, 81,
2007–Ohio–1104, 862 N.E.2d 816.
{¶57} In the case sub judice, we find the agency did make reasonable efforts. As
is stated above in detail, Appellants were provided with numerous services over an
extended period of time.
Guernsey County, Case Nos. 11 CA 42 and 11 CA 43 12
{¶58} Based on the record in this matter, we find that trial court did not err in
granting the motion for permanent custody.
{¶59} Appellants’ Assignments of Error are overruled.
{¶60} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Juvenile Division, Guernsey County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0427
Guernsey County, Case No. 11 CA 42, 11 CA 43 13
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
H.G., :
F.G., JR., and : JUDGMENT ENTRY
F.G. :
:
MINOR CHILDREN : Case Nos. 11 CA 42, 11 CA 43
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Juvenile Division, Guernsey County, Ohio, is
affirmed.
Costs assessed to Appellants.
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JUDGES