[Cite as In re A.L., 2012-Ohio-481.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. A.L. and Hon. John W. Wise, J.
J.L. Case No. 11 CA 23
DEPENDENT/NEGLECTED CHILDREN OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 09 JC 609
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 8, 2012
APPEARANCES:
For Appellee For Appellant
AMBER D. WOOTTON MICHAEL GROH ASSISTANT PROSECUTOR 919 Wheeling Avenue 139 West 8th Street, P. O. Box 640 Cambridge, Ohio 43725 Cambridge, Ohio 43725 Guernsey County, Case No. 11 CA 23 2
Wise, J.
{¶1} Appellant-Mother Debra Lucas appeals the decision of the Guernsey
County Court of Common Pleas, Juvenile Division, which granted permanent custody
of her minor children A.L. and J.L. to Appellee Guernsey County Children Services
Board (“GCCSB”). The relevant facts leading to this appeal are as follows.
{¶2} Appellant is the mother of the two children at issue in this matter, A.L.,
born in 1996, and J.L., born in 2002. The father of A.L. is Terry Kaczur, who has filed a
separate appeal. As of the date of the judgment entry under appeal, J.L.’s paternity
had not been established.
{¶3} On October 28, 2009, GCCSB filed a complaint in the Guernsey County
Court of Common Pleas, Juvenile Division, alleging A.L and J.L. to be dependent
and/or neglected. GCCSB filed the complaint based on concerns about Debra’s mental
health issues and Debra not providing proper health care concerning A.L. Both children
were placed in temporary agency care via an ex parte order.
{¶4} The matter proceeded to an adjudicatory hearing on December 17, 2009.
The trial court thereafter issued a judgment entry finding A.L. to be neglected and J.L.
to be dependent.
{¶5} In the meantime, Terry Kaczur and his mother, Carolyn Wigger, each filed
a motion for custody of both children.
{¶6} On September 15, 2010, GCCSB filed a motion for permanent custody of
A.L. and J.L. Evidentiary hearings were conducted on the permanent custody motion
on January 13, March 28, and July 15, 2011. Guernsey County, Case No. 11 CA 23 3
{¶7} After hearing the evidence, the trial court issued a judgment entry on
August 3, 2011, granting permanent custody of A.L. and J.L. to the agency.
{¶8} On August 8, 2011, appellant filed a notice of appeal. She herein raises
the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED IN FINDING THAT THE CHILDREN
COULD NOT BE PLACED WITH THE MOTHER IN A REASONABLE AMOUNT OF
TIME PURSUANT TO O.R.C. SEC. 2151.414(B)(2).
{¶10} “II. THE TRIAL COURT ERRED IN FINDING THAT PERMANENT
CUSTODY WAS IN THE BEST INTERESTS OF THE CHILDREN UNDER O.R.C.
SEC. 2151.414(D).”
I.
{¶11} In her First Assignment of Error, Appellant-Mother contends the trial court
erred in granting permanent custody of A.L. and J.L. to the agency. We disagree.
{¶12} 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), Stark 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 Guernsey County, Case No. 11 CA 23 4
230, 227 N.E.2d 212. In the case sub judice, the trial court relied on R.C.
2151.414(B)(2), which states as follows:
{¶13} “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.”1
{¶14} 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 “[f]ollowing the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
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).
1 Appellant has not herein specifically challenged the trial court's utilization of R.C. 2151.414(B)(2), which has a narrower application than R.C. 2151.414(B)(1)(a). See In re A.U., Montgomery App. No. 22264, 2008–Ohio–186, ¶ 17. We decline to examine this issue sua sponte. Guernsey County, Case No. 11 CA 23 5
{¶15} The record in the case sub judice reveals that A.L. has Hodgkin’s
Lymphoma and thus has specific medical needs. Appellant was evaluated by Gary
Wolfgang, Ph.D., and found to be “floridly psychotic,” diagnosed with paranoid
schizophrenia. Dr. Wolfgang expressed concerns over her ability to properly care for
the children. According to the case worker, Johnna Denbow, appellant was compliant
with most aspects of her case plan, but there have been questions as to appellant’s
consistency in taking her psychotropic medication. Appellant nonetheless maintains
she was following her case plan and making improvements in her mental health
condition. (Appellant’s Brief at 6). However, even where a parent has participated in his
or her case plan and completed most or all of the plan requirements, a trial court may
still properly determine that such parent has not substantially remedied the problems
leading to agency involvement. See, e.g., In re Pendziwiatr/Hannah Children,
Tuscarawas App.No. 2007 AP 03 0025, 2007-Ohio-3802, ¶ 27.
{¶16} Upon review of the record and the three days of evidentiary proceedings,
we find the trial court did not commit reversible error in determining that A.L. and J.L.
could not or should not be placed with appellant-mother within a reasonable time under
R.C. 2151.414(B)(2).
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re A.L., 2012-Ohio-481.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. A.L. and Hon. John W. Wise, J.
J.L. Case No. 11 CA 23
DEPENDENT/NEGLECTED CHILDREN OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 09 JC 609
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 8, 2012
APPEARANCES:
For Appellee For Appellant
AMBER D. WOOTTON MICHAEL GROH ASSISTANT PROSECUTOR 919 Wheeling Avenue 139 West 8th Street, P. O. Box 640 Cambridge, Ohio 43725 Cambridge, Ohio 43725 Guernsey County, Case No. 11 CA 23 2
Wise, J.
{¶1} Appellant-Mother Debra Lucas appeals the decision of the Guernsey
County Court of Common Pleas, Juvenile Division, which granted permanent custody
of her minor children A.L. and J.L. to Appellee Guernsey County Children Services
Board (“GCCSB”). The relevant facts leading to this appeal are as follows.
{¶2} Appellant is the mother of the two children at issue in this matter, A.L.,
born in 1996, and J.L., born in 2002. The father of A.L. is Terry Kaczur, who has filed a
separate appeal. As of the date of the judgment entry under appeal, J.L.’s paternity
had not been established.
{¶3} On October 28, 2009, GCCSB filed a complaint in the Guernsey County
Court of Common Pleas, Juvenile Division, alleging A.L and J.L. to be dependent
and/or neglected. GCCSB filed the complaint based on concerns about Debra’s mental
health issues and Debra not providing proper health care concerning A.L. Both children
were placed in temporary agency care via an ex parte order.
{¶4} The matter proceeded to an adjudicatory hearing on December 17, 2009.
The trial court thereafter issued a judgment entry finding A.L. to be neglected and J.L.
to be dependent.
{¶5} In the meantime, Terry Kaczur and his mother, Carolyn Wigger, each filed
a motion for custody of both children.
{¶6} On September 15, 2010, GCCSB filed a motion for permanent custody of
A.L. and J.L. Evidentiary hearings were conducted on the permanent custody motion
on January 13, March 28, and July 15, 2011. Guernsey County, Case No. 11 CA 23 3
{¶7} After hearing the evidence, the trial court issued a judgment entry on
August 3, 2011, granting permanent custody of A.L. and J.L. to the agency.
{¶8} On August 8, 2011, appellant filed a notice of appeal. She herein raises
the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED IN FINDING THAT THE CHILDREN
COULD NOT BE PLACED WITH THE MOTHER IN A REASONABLE AMOUNT OF
TIME PURSUANT TO O.R.C. SEC. 2151.414(B)(2).
{¶10} “II. THE TRIAL COURT ERRED IN FINDING THAT PERMANENT
CUSTODY WAS IN THE BEST INTERESTS OF THE CHILDREN UNDER O.R.C.
SEC. 2151.414(D).”
I.
{¶11} In her First Assignment of Error, Appellant-Mother contends the trial court
erred in granting permanent custody of A.L. and J.L. to the agency. We disagree.
{¶12} 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), Stark 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 Guernsey County, Case No. 11 CA 23 4
230, 227 N.E.2d 212. In the case sub judice, the trial court relied on R.C.
2151.414(B)(2), which states as follows:
{¶13} “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.”1
{¶14} 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 “[f]ollowing the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
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).
1 Appellant has not herein specifically challenged the trial court's utilization of R.C. 2151.414(B)(2), which has a narrower application than R.C. 2151.414(B)(1)(a). See In re A.U., Montgomery App. No. 22264, 2008–Ohio–186, ¶ 17. We decline to examine this issue sua sponte. Guernsey County, Case No. 11 CA 23 5
{¶15} The record in the case sub judice reveals that A.L. has Hodgkin’s
Lymphoma and thus has specific medical needs. Appellant was evaluated by Gary
Wolfgang, Ph.D., and found to be “floridly psychotic,” diagnosed with paranoid
schizophrenia. Dr. Wolfgang expressed concerns over her ability to properly care for
the children. According to the case worker, Johnna Denbow, appellant was compliant
with most aspects of her case plan, but there have been questions as to appellant’s
consistency in taking her psychotropic medication. Appellant nonetheless maintains
she was following her case plan and making improvements in her mental health
condition. (Appellant’s Brief at 6). However, even where a parent has participated in his
or her case plan and completed most or all of the plan requirements, a trial court may
still properly determine that such parent has not substantially remedied the problems
leading to agency involvement. See, e.g., In re Pendziwiatr/Hannah Children,
Tuscarawas App.No. 2007 AP 03 0025, 2007-Ohio-3802, ¶ 27.
{¶16} Upon review of the record and the three days of evidentiary proceedings,
we find the trial court did not commit reversible error in determining that A.L. and J.L.
could not or should not be placed with appellant-mother within a reasonable time under
R.C. 2151.414(B)(2).
{¶17} Accordingly, appellant's First Assignment of Error is overruled.
II.
{¶18} In her Second Assignment of Error, appellant contends the trial court erred
and abused its discretion in finding the children's best interests would be served by
granting permanent custody to the agency. We disagree. Guernsey County, Case No. 11 CA 23 6
{¶19} 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 (Nov. 13, 2000), Stark App.No. 2000CA00244, quoting In re Awkal
(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424.
{¶20} 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:
{¶21} “(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;
{¶22} “(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;
{¶23} “(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 * * *;
{¶24} “(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;
{¶25} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.” Guernsey County, Case No. 11 CA 23 7
{¶26} The record indicates that although A.L. and J.L. love appellant-mother and
have looked forward to visits, A.L. has stated that she does not wish to return to living
with her mother. Both children were described as adjusting well to foster care. The
children were also “ambivalent” about maintaining contact with Terry Kaczur, who lives
out-of-state and is not under any child support order. The guardian ad litem and CASA
advocate have both strongly recommended permanent custody and the need for a
stable environment.
{¶27} Upon review, we find the trial court did not err in determining the best
interests of the children would be best served by granting permanent custody to
GCCSB.
{¶28} Appellant's Second Assignment of Error is overruled.
{¶29} 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.
Hoffman, P. J., and
Farmer, J., concur.
___________________________________
JUDGES JWW/d 0131 Guernsey County, Case No. 11 CA 23 8
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : A.L. and : JUDGMENT ENTRY : J.L. : : DEPENDENT/NEGLECTED CHILDREN : Case No. 11 CA 23
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 appellant.
JUDGES