[Cite as In re A.R., 2013-Ohio-788.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: IN THE MATTER OF: : Patricia A. Delaney, P.J. : William B. Hoffman, J. A.R., G.R., C.R., C.R., AND S.R. : Sheila G. Farmer, J. : : Case Nos. 12-CA-111, 12-CA-112, : 12-CA-113, 12-CA-114, 12-CA-115, : 12-CA-117, 12-CA-118, 12-CA-119, : 12-CA-120, and 12-CA-121 : : : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County Court of Common Pleas, Juvenile Division, Case Nos. 2011-AB-102, 2011-AB-103, 2011-AB-104, 2011- AB-105, 2011-AB-109
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 13, 2013
APPEARANCES:
For Mother S.L. Guardian Ad Litem
AARON R. CONRAD MICHELLE EDGAR Conrad Law Office, LLC 414 E. Main Street 120 ½ E. Main Street Suite 200 Lancaster, Ohio 43130 Lancaster, Ohio 43130
For FCCPS Attorney for Children
JULIE BLAISDELL MARK ORT Assistant Prosecuting Attorney 13297 Rustic Drive, N.W. 239 W. Main Street Pickerington, Ohio 43147 Lancaster, Ohio 43130 For Father G.R.
JIM FIELDS 117 W. Main Street Suite 206 Lancaster, Ohio 43130 [Cite as In re A.R., 2013-Ohio-788.]
Delaney, P.J.
{¶1} Appellant S.L. (mother), and appellant G.R. (father), appeal from the
September 25, 2012, Entries of the Fairfield County Court of Common Pleas, Juvenile
Division, terminating their parental rights and granting permanent custody of S.R., A.R.,
G.R., C.R., and C.R. to Fairfield County Child Protective Services (“FCCPS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Appellants are the biological parents of S.R. (DOB 2/5/96), A.R. (DOB
2/8/98), G.R. (DOB 5/5/99), C.R. (DOB 3/14/01) and C.R. (DOB 12/7/02). On April 21,
2011, five separate complaints were filed in Case Nos. 2011-AB-102, 2011-AB-103,
2011-AB-104, 2011-AB-105, and 2011-AB-109 alleging that the children were
dependent children. The complaints indicated that FCCPS had been involved with the
subject family intermittently since November of 2000, and indicated that FCCPS had
received reports of drug usage in the house, both by some of the children and by
appellants. Pursuant to an Entry filed on May 10, 2011, the children were placed under
a shelter order of court ordered protective supervision.
{¶3} As memorialized in a Memorandum Entry filed on July 19, 2011, the
parties stipulated to a finding of dependency and the trial court found the children to be
dependent children. The trial court granted temporary custody of the children to FCCPS
and ordered appellants to remain clean and sober and to comply with their case plans.
{¶4} On April 9, 2012, FCCPS filed motions in the five separate cases asking
that A.R. C.R., C.R. and G.R. be placed in the permanent custody of the agency and
that S.R. be placed in the permanent custody of the agency or, in the alternative, be
placed in a planned permanent living arrangement with FCCPS. FCCPS, in its motions, Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 3 indicated that appellants continued having problems with drugs and/or alcohol and had
not sufficiently completed any of the goals of their case plans.
{¶5} A trial on the motions for permanent custody was held on September 11,
2012. Appellants, who had been notified of the date of the trial, were not present but
were represented by counsel.
{¶6} At the trial, David Groff, a caseworker with FCCPS who had been
assigned to the case from May of 2011, until it was transferred to another casworker on
January 9, 2012, testified that the agency initially became involved over concerns that
appellants were using drugs in the home and the children were not being supervised.
Groff testified that appellant G.R. was on probation and had tested positive for
marijuana in March of 2011 and that “there were concerns that the kids were using in
the home, that the parents were using in front of the children and that they were not
supervising properly in or out of the home,..” T. at 10. According to Groff, A.R. and S.R.
admitted smoking marijuana with their uncle Shane who was in and out of the home and
would sometimes spend weekends with him. Groff further testified that S.R. was living
with his maternal grandparents when the agency became involved and the maternal
grandmother smoked marijuana while the maternal grandfather had issues with pills.
{¶7} Groff testified that he developed case plans for both appellants and that
he developed appellant S.L.’s plan first because appellant G.R. was in jail. He testified
that appellant S.L.’s case plan required her to complete a drug and alcohol assessment
at the Recovery Center and to follow any recommendations, to be screened for drugs,
to attend parenting classes and to have stable housing and income. S.L.’s plan also
required her to attend AA meetings three times a week and to obtain a sponsor. From Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 4 July 14, 2011, until November 14, 2011, appellant S.L. did not attend any of her drug
screens. The following testimony was adduced when Groff was asked what was the
outcome of the drug screens that appellant completed after November 14, 2011:
{¶8} “A. Um, they were, they were all positive. Um, to go back to the
beginning, um, she had six diluted screens. Um, miss, she had four positive screens for
marihuana, um, Suboxone and oxycodone. One positive for oxycodone, one positive
for Suboxone and oxycodone, two positive for marihuana, uh, three positive for
marihuana and Suboxone, two for marihuana and oxycodone, one positive for
marihuana, opiates and Suboxone and three positive Suboxone screens, which she
wasn’t prescribed.
{¶9} “Q. All right. So now what kind of timeframe are you talking about? Are
you all talking about after November?
{¶10} “A. She had started, she had started screening in May.
{¶11} “Q. Okay.
{¶12} “A. So that was screens for May and June.” Transcript at 14-15.
{¶13} Groff testified that appellant S.L. admitted to him in December of 2011 that
she had smoked marijuana. He testified that appellant S.L. had completed her intake at
the Recovery Center in mid-July, started her Treatment Readiness Groups and had
completed her alcohol and drug assessment. However, in September and October of
2011, appellant S.L. did not show up for four appointments with her counselor because
she did not like the counselor. Groff testified that appellant S.L started meeting with her
counselor again in December of 2011 and was meeting with her consistently after such
time. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 5 {¶14} Appellant S.L.’s case plan also required her to make sure that only
appropriate people were in the home. Groff testified that he asked that the children have
no contact with Shane, appellant S.L.’s brother, and with Adam Gordon. According to
Groff, the children, after the agency received shelter custody in May of 2011, were
allowed to remain in the home with appellant S.L. as long as she was working on her
case plan and cooperating. However, the children were removed from the home on
June 10, 2011, after two of the children were picked up for breaking into a neighbor’s
house.
{¶15} Groff testified that appellant did not show up for her intake appointment at
the Parent Project and did not show up for her first Parent Project class in September of
2011, so would have to wait until the February session. He testified that he
recommended that appellants attend a parenting group at Mid-Ohio, but that both
appellants did not follow through. While appellant S.L. did obtain housing, Groff testified
that he did not believe that a one bedroom apartment was big enough for a family of
seven. He also testified that appellant S.L. had never worked although he was unaware
that she had any disability. When asked if she had successfully completed any aspect
of her case plan, Groff testified that appellant S.L. had not.
{¶16} Groff also testified that he had developed a case plan for appellant G.R. in
June of 2011, and that appellant G.R. had signed the plan. Appellant G.R.’s case plan
required him to complete drug screenings, to have a alcohol and drug assessment at
the Recovery Center and to follow any recommendations, and to attend three AA
meeting or twelve-step meetings per week and obtain a sponsor. Appellant G.R. was
inconsistent with his drug screenings and did not submit to screens from July 14, 2011, Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 6 through November 14, 2011. Prior to July 14, 2011, appellant G.R. submitted diluted
screens and had a couple of positive screens for oxycodone for which he did have a
prescription. Appellant G.R. had diluted screens during the period from June 9, 2011 to
July 14, 2011. Groff testified that appellant G.R. told him that the screens were diluted
because appellant G.R. drank a lot of water and that appellant denied using the
substances for which he had tested positive.
{¶17} According to Groff, appellant had positive screens after mid-November of
2011. When questioned by Groff about the screens, appellant G.R. did not respond.
Groff testified that appellant G.R. completed his intake at the Recovery Center in mid-
July of 2011 and consistently attended weekly counseling from December 2, 2011. He
testified that as part of appellant G.R.’s case plan, he recommended parenting
education through the Parent Project, but that appellant G.R. did not show up for the
intake appointment or for the first class, so had to wait until February of 2012 to get
enrolled in the class.
{¶18} As part of his case plan, appellant G.R. was asked to get a mental health
evaluation at Mid-Ohio after appellant S.L. reported domestic violence. Groff testified
that appellant G.R.’s psychological examination was scheduled, but that appellant did
not follow through with the examination. He testified that appellant received social
security disability. Groff further testified that, as part of their case plans, he wanted both
appellants to attend twelve-step meetings. While appellants told him that they had
attended, they did not produce any documentation.
{¶19} At the trial, Groff was questioned about visitation. He testified that
appellants visited with the children together. Initially, appellants had supervised visits a Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 7 couple of hours a week until October of 2011, when a court order limited visitation to no
more than one hour a week until appellants complied with their case plans. Groff
testified that the children seemed bonded with their parents and that the visits went well.
At the time that Groff was involved, the children were together in foster care, were better
behaved and seemed bonded with the foster family. He testified that they had done well
in foster care and that appellants were consistent with their visitation. Groff further
testified that the children were doing well in school and involved in activities.
{¶20} The next witness to testify was Elyssa Wanosik, who took over as
caseworker in early January of 2012. Wanosik testified that since she had taken over,
appellant S.L. had ten missed drug screens and had tested positive for Suboxone and
marijuana prior to obtaining a prescription for Suboxone. Since she obtained her
prescription for Suboxone on February 8, 2012, appellant S.L. had testified positive for
Suboxone and also had tested positive for marijuana on May 17, 2012. Appellant
denied using marijuana, but admitted that she used Suboxone prior to obtaining her
prescription. Wanosik testified that the screens before and after the positive marijuana
screen on May 17, 2012 showed no marijuana.
{¶21} Wanosik also testified that appellant S.L. was discharged in August of
2012, from the Recovery Center due to missed appointments and was inconsistent in
keeping her counseling appointments. She testified that appellant S.L. had periods of
inconsistency followed by periods of consistency. According to Wanosik, appellant S.L.
provided documentation showing that she had attended twenty twelve-step meetings
from May 26, 2012 through the beginning of August of 2012. She testified that
appellant S.L. was ordered to attend three twelve-step meetings a week. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 8 {¶22} Wanosik further testified that appellant S.L. had successfully completed
the Parent Project in April and that she was satisfied that appellant S.L had completed
parenting education. Appellant S.L. was still residing in the same one bedroom
apartment and Wanosik testified that she discussed the need for additional income with
appellant S.L. so that she could obtain better housing. Wanosik testified that appellant
S.L. had been on a waiting list for housing since January or February of 2012 and that
appellant S.L. still was not working and did not take advantage of referrals to
employment services. According to Wanosik, appellant S.L. did not have beds for all of
the children.
{¶23} When asked, Wanosik testified that appellant S.L. had not successfully
completed her case plan with respect to recovery services and with respect to housing
and employment. Wanosik indicated that appellant S.L. had “no income herself or the
ability to provide appropriate housing for the size of her family.” T. at 73.
{¶24} With respect to appellant G.R., Wanosik testified that he had received a
prescription for Suboxone shortly after she took over the case. She testified that he had
completed the majority of his drug screens and that he had not tested positive for
anything other than his prescribed Suboxone, although he had some diluted screens.
From May 2012 until the time of the trial, appellant G.R. had consistently been attending
counseling at the Recovery Center. Wanosik testified that appellant G.R. was not
involved in any type of mental health counseling and had not yet completed a
psychological assessment. The psychological assessment had been continued to
December of 2012. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 9 {¶25} Wanosik testified that appellant G.R. had not successfully completed his
case plan with respect to substance abuse and drug and alcohol treatment because he
had not successfully complied with the counseling and treatment requirements or with
the requirement to attend AA meetings. She testified that he had not complied with the
mental health or housing aspects of his case plan. Wanosik testified that appellants
visited together consistently with the children one hour a week and that the supervised
visits took place at appellants’ home. She testified that the visits went well and that the
children had a bond with their parents. Wanosik testified that no other family members
were willing and appropriate to care for the children.
{¶26} When asked if it was the agency’s position that appellants were unwilling
to provide an adequate home for their children, Wanosik responded affirmatively. She
testified that the children were together in the same foster home and were doing well.
The following testimony was adduced when she was asked to describe the children’s
need for a legally secure permanent placement:
{¶27} “A. The, the children should be in an environment where they can thrive,
um, and their needs are met and their safety isn’t threatened by individuals who have
concerns for substance abuse and criminal activity, um, as well as the inability to parent
and supervise the children appropriately. Um, at this time, [S.L.] and [G.R.] are not able
to provide a safe and stable environment and a home free from substance abuse. Um,
with no other family placement options available, um, it’s, it’s our, the Agency’s position
that it would be in the best interests for the children to be placed in the permanent
custody of the agency.” Transcript at 92-93. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 10 {¶28} On cross-examination, Wanosik testified the delay with respect to
expanding visitation were AA and appellant G.R.’s lack of a sponsor. She testified that
appellant G.R. had never missed a psychological appointment, but that the
appointments had always been moved. She testified that he had a pending
psychological appointment in December of 2012. There was testimony that appellant
G.R. had not confirmed prior appointments to have his psychological examination
performed, so the examinations did not go forward. On redirect, she testified that
appellant S.L. did not have an AA sponsor, but that appellant S.L. had told her the night
before that appellant G.R. had one.
{¶29} Michelle Edgar, the Guardian Ad Litem, testified that she had observed a
visit between appellants and the children the week earlier and that Shane, appellant
S.L.’s brother, came into the apartment. She testified that appellant told her that Shane
was living in the apartment above them and that this concerned her because appellants
were trying to get sober and Shane was using drugs. Edgar testified that appellants
needed to report the fact that Shane was living upstairs to the agency and that she had
discussed the need for a bigger place with appellants. She testified that the children
needed stability and permanency. The Guardian Ad Litem, in her September 4, 2012
report, had opined that it was in the children’s best interest that permanent custody be
granted to the agency. In her report, the Guardian Ad Litem stated, in relevant part, as
follows:
{¶30} “The Guardian ad Litem has observed the children with their parents or is
scheduled to do so prior to the trial in this matter. The Guardian ad Litem has spoken to
all of the children individually. The Guardian ad Litem has requested the parents to Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 11 contact her so that she can meet with them and conduct home visits. However, the
Guardian ad Litem has not heard from either of the parents to set up such meetings
except for a few phone calls at the beginning of the case from Mother. However, she
failed to follow up with me to schedule any meetings. The parents have only done the
bare minimum required of them in this matter and have failed to follow all the orders of
the court in order to increase their visitation time with the children pursuant to the court
orders. The Guardian ad Litem has reviewed the pertinent documentation of Fairfield
County Children Services. It is clear from the Guardian ad Litem’s investigation into this
matter that the children cannot be placed with either parent within a reasonable time
and should not be placed with either parent pursuant to the statute as stated above.”
{¶31} Pursuant to Entries filed in the five cases on September 25, 2012, the trial
court terminated appellants’ parental rights and granted permanent custody of the
children to FCCPS.
{¶32} Appellant S.L. appealed from the trial court’s September 25, 2012 Entry in
the five cases. Her appeals were assigned Case Nos. 12-CA-111, 12-CA-112, 12-CA-
113, 12-CA-114 and 12-CA-115. Appellant S.L., in such cases, raises the following
assignments of error:
{¶33} “I. THE TRIAL [SIC] ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
BEST INTERESTS OF A.R., G.R., C.R., C.R., AND S.R. TO PERMANENTLY
TERMINATE THE PARENTAL RIGHTS OF S.L. AND PLACE A.R., G.R., C.R., C.R.,
AND S.R., IN THE PERMANENT CUSTODY OF FAIRFIELD COUNTY CHILD
PROTECTIVE SERVICES. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 12 {¶34} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT FOUND BY CLEAR AND CONVINCING EVIDENCE THAT A.R., G.R., C.R., C.R.,
AND S.R., COULD NOT BE PLACED WITH S.L. WITHIN A REASONABLE TIME OR
SHOULD NOT BE PLACED WITH S.L.
{¶35} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED COUNSEL’S REQUEST FOR A CONTINUANCE BASED UPON THE
ABSENCE OF THE PARTIES AND THE POTENTIAL FOR PERMANENT
TERMINATION OF PARENTAL RIGHTS.”
{¶36} Appellant G.R. also appealed from the trial court’s September 25, 2012
Entry in the five cases. His appeals were assigned Case Nos. 12-CA-117, 12-CA-118,
12-CA-119, 12-CA-120 and 12-CA-121. Appellant G.R., in such cases, raises the
following assignment of error:
{¶37} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S COUNSEL’S MOTION FOR A CONTINUANCE.”
{¶38} For purposes of judicial economy, we shall address the ten cases
together.
Assignment of Error III in Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-
114 and 12-CA-115 and Assignment of Error in Case Nos. 12-CA-117, 12-CA-
118, 12-CA-119, 12-CA-120 and 12-CA-121
{¶39} Appellant S.L., in her third assignment of error, and appellant G.R., in his
sole assignment of error, argue that the trial court abused its discretion in denying their
counsels’ request for a continuance of the trial. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 13 {¶40} The decision to grant or deny a motion for continuance rests within the
sound discretion of the trial court. State v. McMilen, 113 Ohio App.3d 137, 680 N.E.2d
665 (3rd Dist.1996). This Court may not reverse a trial court's decision unless we find it
has abused its discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078
(1981). The Supreme Court has defined the term abuse of discretion as demonstrating
the trial court's attitude is unreasonable, arbitrary, or unconscionable. See, e.g.,
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶41} In this case, neither appellant appeared for the trial despite receiving
notice of the same by personal service on May 3, 2012. Both appellants, on such date,
had signed a notice stating that the trial was scheduled for September 11, 2012, at 9:00
a.m. The following discussion took place on the record:
{¶42} “THE COURT: Mr. Fields?
{¶43} “ATTY. FIELDS: Thank you, your Honor. I’d ask the Court to continue this
matter. I can’t explain why [appellant G.R.] is not here. He and I have traded phone
calls this week with him having left me a message last night. Before, I looked this
morning and saw that he had called me back. Um, I know Mr. Conrad has called and
left a message on their cell phone. Uh, they have been, you know, they haven’t been
perfect in what they’re doing, but they’ve been visiting, they’ve been testing, um, they’ve
been active somewhat with their case plan and I don’t have a reason for why they’re not
here today. I believe that they’ve been at the hearings and I’m just perplexed as to why
they’re not here. So, I would ask the Court to grant us a continuance in this matter, so
we can find out what happened to our clients.
{¶44} “THE COURT: Mr. Conrad? Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 14 {¶45} “ATTY. CONRAD: Thank you, your Honor. I do agree, I do agree with Mr.
Fields’ position. I actually spoke with my client [appellant S.L.] on August 20th and then
again on August 22nd, was my last contact with her. In this conversations [sic], we
were addressing the counseling, certain counseling issues and other aspects of her
case plan. She indicated still that she wished to contest the permanent custody motion,
so I’m surprised that she is not here today. I did leave a message on a voice mail, uh,
around 9:15 this morning, um, but I have not heard anything back from my client. I
would request a continuance based on those facts.
{¶46} “THE COURT: Mr. Ort or Ms. Edgar?
{¶47} “ATTY. EDGAR: I would just say, your Honor, I just met with the parents
on Friday. I saw on Wednesday; I talked with them on Tuesday or Thursday. . She
definitely is aware of today and they were going to be here today (inaudible) case plan,
but they still are (inaudible) visits, so….I think that (inaudible) since I’ve been (inaudible)
involved in the case; it’s been well over a year (inaudible).
{¶48} “THE COURT: Do you know anything, Ms. Wanosik, about their
appearance today? Have you talked to them?
{¶49} “MS. WANOSIK: I talked to [appellant S.L.] yesterday, um, but she didn’t, I
had discussed the hearing. She knew about it, but she didn’t mention, um….
{¶50} “THE COURT: Coming or not coming?
{¶51} “MS. WANOSIK: Hun, uh. She sounded like she planned it on coming. I
know she left a voicemail for my supervisor, Karen, right after it and she wasn’t saying I
don’t plan on being there or anything. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 15 {¶52} “PROS. BLAISDELL: I don’t think they’ve, I know that [appellant G.R.]
wasn’t here on our first hearing because he was in jail, but I don’t think they’ve missed.
{¶53} “MS. WANOSIK: Hun, uh.
{¶54} “ATTY. FIELDS: No, and that’s…
{¶55} “PROS. BLAISDELL: ….a court hearing.
{¶56} “ATTY. FIELDS: Even when they weren’t doing anything…
{¶57} “PROS. BLAISDELL: Right.
{¶58} “ATTY. FIELDS: …they came to the hearing. I mean, I think that’s when
they geared it up. I think in November of ’11 we came to a hearing and they hadn’t
done, they weren’t testing, they weren’t doing anything and they were pretty much told
they needed to step it up or it would just be a done deal and that’s when they started
doing a little more. But that’s why I’m surprised they’re not here.
{¶59} “THE COURT: It’s 10:20. If they were just a little late, it would be one
thing, but no calls, no nothing. I’m proceeding.” T. at 2-5.
{¶60} Appellant G.R., in his brief, contends that both appellants “were not in
attendance due to mistakenly believing that the trial was to begin at 1:30 p.m.”
However, there is nothing in the record supporting such assertion. Rather, as is stated
above, both appellants signed a notice that indicated that the trial was scheduled for
9:00 a.m. on September 11, 2012. Moreover, counsel for both appellants and for the
children, the Guardian Ad Litem, and the Assistant Prosecuting Attorney all were
present for the trial. Based on the forgoing, we find that the trial court did not abuse its
discretion in denying the continuance. The trial court’s decision was not arbitrary,
unconscionable or unreasonable. Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 16 {¶61} Appellant’s S.L.’s third assignment of error and appellant G.R.’s sole
assignment of error are, therefore, overruled.
Assignments of Error I and II in Case Nos. 12-CA-111, 12-CA-112, 12-CA-113,
12-CA-113, 12-CA-114 and 12-CA-115
{¶62} Appellant S.L., in her first two assignments of error, argues that the trial
court erred in finding that appellee showed by clear and convincing evidence that her
parental rights should be terminated and that the children could not or should not be
placed with appellant S.L. within a reasonable time.
{¶63} 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, 5th Dist. No. CA–5758, 1982 WL 2911 (Feb. 10,
1982). 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, 54 Ohio St.2d
279, 376 N.E.2d 578 (1978). 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, 9th
Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227
N.E.2d 212 (1967).
{¶64} R.C. 2151.414(B)(1) reads as follows: “Except as provided in division
(B)(2) of this section, the court may grant permanent custody of a child to a movant if
the court determines at the hearing held pursuant to division (A) of this section, by clear
and convincing evidence, that it is in the best interest of the child to grant permanent Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 17 custody of the child to the agency that filed the motion for permanent custody and that
any of the following apply:
{¶65} “(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, *
* * 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….
{¶66} “(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 * * *.”
{¶67} In this case, the trial court found the children had been in the temporary
custody of the agency for a period greater than 12 months of a consecutive twenty-two
month period. We find the record supports this conclusion.
{¶68} The trial court also determined that the children could not be placed with
either parent within a reasonable time nor should the children be placed with either
parent. 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 Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 18 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).
{¶69} While appellant S.L. maintains that the trial court erred in finding that the
children could not or should not be placed with her within a reasonable time, we
disagree. There was testimony that appellant S.L. had not remedied her substance
abuse issues and had tested positive for marijuana and for Suboxone prior to obtaining
her prescription for the same. In addition, appellant S.L. was discharged from treatment
to the Recovery Center due to missed appointments and failed to comply with her case
plan requirement that she attend three twelve-step meetings per week and obtain a
sponsor. Moreover, appellant S.L. lacked appropriate housing for her five children and
despite having no known disability, had not had a job throughout the case nor made any
effort to obtain one. Furthermore, as testified to at the trial, appellant allowed the
children to have contact with her brother Shane, a known drug user. Thus, contrary to
appellant S.L.’s assertion, there was testimony that appellant S.L. continually and
repeatedly failed to remedy the conditions that caused the children to be removed.
{¶70} The trial court next determined it was in the children’s best interests to be
placed in the permanent custody of FCCPS. 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 Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 19 parties concerned.” In re Mauzy Children, 5th Dist. No. 2000CA00244, 2000 WL
1700073 (Nov. 13, 2000) quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d
424 (1994).
{¶71} 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:
{¶72} “(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;
{¶73} “(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;
{¶74} “(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 * * *;
{¶75} “(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;
{¶76} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶77} In this case, testimony was adduced that the children were all in the same
foster home and were doing well. There was testimony that the children had been in
the agency’s custody since July 19, 2011. The Guardian Ad Litem, in her September 4, Fairfield County App. Case Nos. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12- CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121 20 2012, report, indicated that a grant of permanent custody would be in the best interest
of the children. Elyssa Wanosik, at trial, also testified that the children needed to be in a
safe environment with supervision and that a grant of permanent custody would be in
their best interest.
{¶78} Based on the foregoing, appellant S.L.’s first two assignments of error are
overruled.
{¶79} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Delaney, P.J.
Hoffman, J. and
Farmer, J. concur
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JUDGES
PAD/d0114 [Cite as In re A.R., 2013-Ohio-788.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : A.R., G.R., C.R., C.R., AND S.R. : : : : JUDGMENT ENTRY : : : : CASE NOS. 12-CA-111, 12-CA-112, 12-CA-113, 12-CA-114, 12-CA-115, 12-CA-117, 12-CA-118, 12-CA-119, 12-CA-120, and 12-CA-121
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Court of Common Pleas, Juvenile Division, is affirmed.
Costs assessed to Appellants.
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