In re B.G.

2015 Ohio 288

• Court: Ohio Court of Appeals
• Decided: January 23, 2015
• Docket: CT2014-0032
• Status: Published

Opinion

[Cite as In re B.G., 2015-Ohio-288.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : B.G., P.G., & K.G. : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : : : Case No. CT2014-0032 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Juvenile Division, Case Nos. 21230095,21230096,21230097

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 23, 2015

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee Ashley Emahiser D. MICHAEL HADDOX JOHN D. WEAVER Prosecuting Attorney 542 S. Drexel Avenue Bexley, OH 43209 By: MOLLY L. MARTIN Assistant Prosecuting Attorney Guardian Ad Litem 27 North Fifth Street, P.O. Box 189 Zanesville, OH 43702-0189 JEANETTE MOLL P.O. Box 461 Zanesville, OH 43701 Muskingum County, Case No. CT2014-0032 2

Baldwin, J.

{¶1} Appellant Ashley Emahiser appeals from the decision of the Muskingum

County Court of Common Pleas, Juvenile Division, finding her children to be neglected

children and placing them in the legal custody of their maternal grandparents.

STATEMENT OF THE FACTS AND CASE

{¶2} B.G. (DOB 5/9/09), P.G. (DOB 4/7/10) and K.G. (DOB 5/27/12) are the

biological children of appellant Ashley Emahiser (hereinafter “appellant”) and Cody

Grandstaff. On June 14, 2012, appellee Muskingum County Children Services

(hereinafter “MCCS”) filed a complaint for temporary custody, alleging that the children

were abused, neglected, and dependent. The complaint was filed after the Zanesville

Police Department responded to a call about a fight at the home of appellant and

Grandstaff and was informed that methamphetamines were being manufactured at the

home. The two oldest children were present at the time. As memorialized in a Decision

filed on June 14, 2012, following a shelter care hearing, the children were placed in the

temporary custody of appellee MCCS.

{¶3} Pursuant to an Order filed on August 16, 2012, the complaint was

amended to request that temporary custody of B.G. and P.G. be granted to Timothy

Hazelton, the maternal grandfather, with protective supervision by appellee MCCS.

{¶4} Subsequently, on November 19, 2012, the Guardian ad Litem filed a

Motion for Legal Custody, asking that legal custody of the three children be granted to

the maternal grandparents. The maternal grandparents were later joined as parties.

{¶5} An adjudicatory hearing was held before the court on May 28, 2013. Via

an Entry filed on June 3, 2013, the trial court found the children to be neglected children Muskingum County, Case No. CT2014-0032 3

“who lack adequate parental care because of the faults or habits of the children’s

parent/s, guardian or custodian.” The matter proceeded to disposition on May 28, 2013.

The trial court, in its June 3, 2013 Entry, placed the three children in the legal custody of

their maternal grandparents. Protective supervision to MCCS was terminated.

{¶6} Appellant appealed from the trial court’s June 3, 2013 Entry. This Court

reversed the judgment of the trial court and remanded the matter for findings pursuant

to R.C. 2151.419(B) (1). The trial court then issued Findings of Fact and Conclusions of

Law on June 19, 2014.

{¶7} Appellant now appeals, raising the following assignments of error on

appeal:

{¶8} THE TRIAL COURT’S DECISION THAT THE AGENCY HAD MADE

REASONABLE EFFORTS TO PREVENT REMOVAL IS NOT SUPPORTED BY CLEAR

AND CONVINCING EVIDENCE.

{¶9} APPELLANT WAS DENIED HER LIBERTY INTEREST IN RAISING HER

CHILDREN WITHOUT DUE PROCESS OF LAW.

{¶10} THE TRIAL COURT’S DECISION THAT IT WAS IN THE CHILDREN’S

BEST INTERESTS TO BE PLACED ON THE LEGAL CUSTODY OF THEIR

GRANDPARENTS WHEN THEY COULD BE RETURNED SAFELY TO A PARENT

CONSTITUTED AN ABUSE OF DISCRETION.

{¶11} THE TRIAL COURT’S DECISION THAT THE CHILDREN WERE

NEGLECTED IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

I, II

{¶12} Appellant, in her first assignment of error, argues that the trial court’s

decision that the agency had made reasonable efforts to prevent removal is not Muskingum County, Case No. CT2014-0032 4

supported by clear and convincing evidence. In her second assignment of error,

appellant argues that the trial court violated her constitutional right to parent her children

because no evidence was presented showing that continued removal of the children

from the home was necessary for the children’s welfare or that public safety required

continued removal.

{¶13} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). “Where

the degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Id. If some

competent, credible evidence going to all the essential elements of the case supports

the trial court's judgment, an appellate court must affirm the judgment and not substitute

its judgment for that of the trial court. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978).

{¶14} R.C. 2151.419(A)(1) provides:

Except as provided in division (A)(2) of this section, at

any hearing held pursuant to section 2151.28, division (E) of

section 2151.31, or section 2151.314, 2151.33, or 2151.353

of the Revised Code at which the court removes a child from

the child's home or continues the removal of a child from the

child's home, the court shall determine whether the public

children services agency or private child placing agency that

filed the complaint in the case, removed the child from home, Muskingum County, Case No. CT2014-0032 5

has custody of the child, or will be given custody of the child

has made reasonable efforts to prevent the removal of the

child from the child's home, to eliminate the continued

removal of the child from the child's home, or to make it

possible for the child to return safely home. The agency shall

have the burden of proving that it has made those

reasonable efforts…

{¶15} When a trial court is considering whether the agency made reasonable

efforts to prevent the removal, the issue is not whether the agency could have done

more, but whether it did enough to satisfy the reasonableness standard under the

statute. In re Brewer, 7th Dist. Belmont App. No. 94–B–28, 1996 WL 65939 (Feb. 12,

1006). “In determining whether reasonable efforts were made, the child's health and

safety shall be paramount.” R.C. 2151.419(A)(1).

{¶16} Appellant, in her brief, argues that she completed every goal on her case

plan and that a psychological evaluation yielded no concerns. Appellant notes that the

psychologist testified that he only had concerns with Grandstaff.

{¶17} However, as noted by appellee in its brief, there was sufficient,

competent credible evidence to demonstrate that appellant, despite her denials, was still

in a relationship with the children’s father, Cody Grandstaff.

{¶18} At the hearing, appellant testified that she left Arizona with the children

after Grandstaff was charged with offenses relating to driving under the influence of Muskingum County, Case No. CT2014-0032 6

methamphetamines. She agreed that she was aware that Grandstaff both used

methamphetamines and violated the law based on use of the same. When asked if

Grandstaff had active warrants out of Arizona, she indicated the she believed that he

had. She further indicated that she was aware that Grandstaff had active warrants out of

Toledo.

{¶19} Testimony also was adduced at the hearing that Grandstaff had anger

management problems. Dr. Gary Wolfgang, a psychologist and clinical counselor,

testified that Grandstaff’s evaluation “returned indications of a lot of psychopathology

and behavioral dysfunction. The results suggested anger, fear and a history of anti

social behavior, irritability, low tolerance for frustration, argumentativeness.” Transcript

at 88. Dr. Wolfgang indicated that Grandstaff discussed instances of physicalness

with appellant and minimized the same and that appellant had a rather lengthy criminal

history. Testimony was adduced that Grandstaff was going to be indicted as a result of

the methamphetamine production that led to the filing of the complaint in this case and

that Grandstaff was involved in a situation with police in April of 2013 due to being

intoxicated and throwing beer cans. Grandstaff was arrested for disorderly conduct,

criminal damaging and criminal trespass and had failed to complete recommended

additional anger management counseling. Muskingum County, Case No. CT2014-0032 7

{¶20} Dr. Wolfgang, who also evaluated appellant, testified that she had

dependency issues and “seemed to that point mimic the words of her partner and get

on board with issues that I wasn’t entirely sure were her own issues…” Transcript at 90.

He, when asked, testified that he had concerns if the children were placed with

appellant and Grandstaff as a couple and appellant could not intervene to protect her

children. When asked if he believed that Grandstaff continued to pose a risk to his

three children, he indicated that he did.

{¶21} At the hearing, Kelsey Coe, a caseworker with MCCS, testified that

appellant told her in early January of 2013 that appellant had kicked Grandstaff out and

that they were no longer a couple. However, Adrian Williams, a caseworker with MCCS,

testified that he saw the two together at Walmart on January 22, 2013 and that the two,

who had normally talked to him when he ran into them in the past, were trying to avoid

him. In addition, Coe testified that she left paperwork at the same address for both of

them about an ex parte hearing that was scheduled for the next morning and that both

were present for the hearing. Coe also testified that since appellant told her that she

and Grandstaff were no longer together, she had never been able to make an

unannounced home visit successfully. There was clear and convincing evidence that

appellant and Grandstaff, despite appellant’s statements to the contrary, remained in a

relationship at the time of the hearing. Muskingum County, Case No. CT2014-0032 8

{¶22} Based on the foregoing, we find that there was clear and convincing

evidence that the agency made reasonable efforts to prevent removal and that appellant

was not denied her liberty interest in raising her children.

{¶23} Appellant’s first and second assignments of error are, therefore, overruled.

III

{¶24} Appellant, in her third assignment of error, argues that the trial court

abused its discretion in holding that it was in the children’s best interest to be placed in

the legal custody of their maternal grandparents when they could be returned safety to

appellant. The Guardian ad Litem had recommended that the trial court grant legal

custody to the maternal grandparents.

{¶25} On appeal, we will not reverse an award of legal custody absent an abuse

of discretion. In re R.D.J., 5th Dist. Delaware No. 12 CAF 07 0046, 2013–Ohio–1999, ¶

29, citing In re Gales, 10th Dist. No. 03AP–445, 2003–Ohio–6309; In re Nice, 141 Ohio

App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552. Abuse of discretion implies that the

trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Legal custody, where

parental rights are not terminated, is not as drastic a remedy as permanent custody,

which terminates parental rights. In re A. W.-G., 12th Dist. Butler No. CA2003–04–099,

2004–Ohio–2298, at ¶ 7, quoting Nice at 455, 751 N.E.2d 552. Therefore, the trial

court's standard of proof in legal custody proceedings is not clear and convincing Muskingum County, Case No. CT2014-0032 9

evidence, as it is in permanent custody proceedings, but is merely a preponderance of

the evidence. Nice at 455, 751 N.E.2d 552; In re A. W.-G, supra; In re Law, 5th Dist.

Tuscarawas No.2003 AP 06 45, 2004–Ohio–117.

{¶26} Based on the evidence presented at the hearing, the trial court did not

abuse its discretion in awarding legal custody to the maternal grandparents. As is stated

above, the complaint in this case was filed after it was discovered that

methamphetamines were being cooked at the house where appellant, Grandstaff and

the children resided. There was testimony adduced at the hearing that Grandstaff had

not completed his case plan, had outstanding criminal charges, and substance abuse

issues. While appellant denied that she and Grandstaff were still a couple, there was

testimony that the two were still together and that appellant had dependency issues.

{¶27} Moreover, testimony was adduced that K.G., the youngest child, is

medically fragile and has special medical needs. She was born with a congenital heart

defect. As noted by the trial court, neither parent was up to date on her medical needs

or care whereas the maternal grandparents ensured that she attended her many doctor

and therapy appointments. Appellant, as of the time of the hearing, had not completed

the same training that the maternal grandparents had to learn how to care for K.G.

{¶28} Based on the foregoing, we find that that the trial court did not abuse its

discretion in holding that it was in the children’s best interest to be placed in the legal

custody of their maternal grandparents and not to be returned home. The children could

not be returned safety to appellant.

{¶29} Appellant’s third assignment of error is, therefore, overruled. Muskingum County, Case No. CT2014-0032 10

IV

{¶30} Appellant, in her fourth and final assignment of error, argues that the trial

court’s decision that the children were neglected children was not supported by clear

{¶31} With regard to neglect, R.C. 2151.03(A) provides, in pertinent part:

{¶32} As used in this chapter, “neglected child” includes any child:* * *

{¶33} (2) Who lacks adequate parental care because of the faults or habits of

the child's parents, guardian, or custodian.

{¶34} “ ‘Adequate parental care’ means the provision by a child's parent or

parents * * * of adequate food, clothing, and shelter to ensure the child's health and

physical safety and the provision by a child's parent or parents of specialized services

warranted by the child's physical or mental needs.” R.C. 2151.011(B)(1). The Supreme

Court of Ohio has held that a finding of neglect based upon “R.C. 2151.03(A)(2)

requires some showing that parents, a guardian, or a custodian is at fault before a

finding of a lack of proper (or adequate) care can be made.” In re Riddle, 79 Ohio St.3d

259, 262, 1997-Ohio-391, 680 N.E.2d 1227.

{¶35} In the case sub judice, testimony was adduced at the adjudicatory hearing

that, based on an investigation, it was determined that methamphetamines were being

manufactured at the house where appellant, Grandstaff and two of the children were

residing. At the hearing, Detective Kevin Starrett of the Perry County Sheriff’s Office

testified that he smelled ether when he arrived at the house and that meth labs were

dangerous and volatile. He further testified that the children would have been in danger.

{¶36} Patrolman Joel Tignor, who is employed by the City of Zanesville, testified

that when he arrived at the scene in June of 2012 to investigate, he observed Muskingum County, Case No. CT2014-0032 11

Grandstaff fighting with his father in the backyard. He testified that he smelled ether or

starting fluid.

{¶37} Roni Kuhn, an investigator with MCCS, testified that he was on the scene

on the night in question and observed the two oldest children. He testified that the

youngest child, K.G., was in the hospital with appellant at the time. Kuhn testified that

he had concerns about K.G.’s care because appellant was prepared to have K.G.

discharged against medical advice on that night and return to the house. Kuhn further

testified that B.G. “just said that her daddy was cooking downstairs and she was not

allowed. Her and [P.G.] were not allowed downstairs.” Transcript at 52. Appellant

testified at the adjudicatory hearing that she was aware that Grandstaff was using

methamphetamine and was addicted to it when she moved to Ohio in August of 2011,

but did not know he was using in June of 2012. She denied knowing that Grandstaff

was operating a meth lab.

{¶38} Based on the foregoing, we find that the trial court did not err in finding the

children to be neglected children. There was clear and convincing evidence that the

children lacked adequate parental care because of the faults or habits of their parents.

{¶39} Appellant’s fourth assignment of error is, therefore, overruled. Muskingum County, Case No. CT2014-0032 12

{¶40} Accordingly, the judgment of Muskingum County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.