In re D.C.J.

2021 Ohio 4395

• Court: Ohio Court of Appeals
• Decided: December 10, 2021
• Docket: 2021CA00090
• Status: Published

Opinion

[Cite as In re D.C.J., 2021-Ohio-4395.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: D.C.J. JUDGES: Hon. Craig R. Baldwin, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

Case No. 2021CA00090

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2020JCV01200

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 10, 2021

APPEARANCES:

For Plaintiff-Appellee For Mother-Appellant

BRANDON J. WALTENBAUGH AARON KOVALCHIK Stark County Department of 116 Cleveland Avenue, N.W., Suite #808 Job and Family Services Canton, Ohio 44702 402 2nd Street, S.E. Canton, Ohio 44702 Stark County, Case No. 2021CA00090 2

Hoffman, J. {¶1} Appellant Tasha Reeves (“Mother”) appeals the July 19, 2021 Judgment

Entry entered by the Stark County Court of Common Pleas, Family Court Division, which

terminated her parental rights, privileges, and obligations with respect to her infant child

(“the Child”), and granted permanent custody of the Child to appellee Stark County

Department of Jobs and Family Services (“SCDJFS”).

STATEMENT OF THE CASE AND FACTS

{¶2} On November 13, 2020, SCDJFS filed a Complaint, alleging the Child was

dependent and requesting temporary custody be awarded to SCDJFS. SCDJFS filed the

Complaint due to concerns relative to Mother's extensive history with SCDJFS which

included multiple court involvements resulting in Mother's losing legal and permanent

custody of four of her other five children. At the time of the filing of Complaint, the case

involving her fifth child was scheduled for hearing on SCDJFS’s motion for permanent

custody on December 22, 2020. The trial court ultimately granted permanent custody of

the fifth child to SCDJFS. This Court affirmed the trial court’s decision. In re: D.C., 5th

Dist. Stark No. 2021CA00047, 2021-Ohio-2735.

{¶3} The Complaint noted the concerns which gave rise to the actions involving

Mother's other children which included Mother exposing the children to sexual offenders,

failing to protect the children from sexual abuse, deplorable home conditions, Mother's

mental health issues, and her faulty decision making. In 2017, child protective services

in the state of Michigan investigated concerns Mother had exposed her fifth child to a

sexual offender and the fifth child had witnessed domestic violence between the sexual

offender and another individual. Mother moved to Ohio before Michigan child protective

services conducted the final home inspection. Despite ten years of involvement with Stark County, Case No. 2021CA00090 3

SCDJFS, Mother had not improved her parenting skills and was still struggling with the

same chronic issues. Mother was unable to meet the Child's needs and unable to

maintain a sanitary and safe home environment.

{¶4} Following a shelter care hearing, the trial court placed the Child in the

emergency temporary custody of SCDJFS. The trial court conducted an adjudicatory

hearing on February 9, 2021, and found the Child to be dependent and placed him in the

temporary custody of SCDJFS. The trial court conducted a review hearing on May 7,

2021, and maintained the status quo. SCDJFS filed a motion for permanent custody on

May 7, 2021.

{¶5} The trial court conducted a hearing on SCDJFS’s motion for permanent

custody on July 15, 2021.

{¶6} Kimberly Gabel, an SCDJFS caseworker, testified she was assigned to the

family in February, 2021, but had an historical knowledge of SCDJFS’s involvement with

Mother and her other children. Gabel stated SCDJFS became involved with the Child at

the time of his birth because of the Agency’s decade long involvement with Mother. Gabel

identified the judgment entries granting permanent custody of Mother’s five other children

to SCDJFS.

{¶7} Gabel noted, when Mother advised SCDJFS of her pregnancy with the

Child, Mother reported she was serving as a surrogate for her friend and her friend’s

boyfriend, Terrence Pryor. Genetic testing excluded Pryor as the Child’s father. Mother

did not provide SCDJFS with the names of any other potential fathers for the Child.

{¶8} Mother’s previous case plans required her to engage in comprehensive

mental health treatment, including counseling, medication compliance, and case Stark County, Case No. 2021CA00090 4

management; engage in substance abuse services; and work with Goodwill through the

parenting skills training program and home-based program. Mother was also required to

maintain appropriate housing and a viable source of income. Gabel indicated Mother has

failed to make any meaningful changes in order to safely parent any of her children. With

respect to the instant action, Mother’s case plan required her to engage in services at

Comquest to address her substance use and sobriety, complete an assessment and

comply with the color code drug screening requirements, engage in comprehensive

mental health treatment, and establish paternity of the Child.

{¶9} Gabel stated Mother did not cooperate with establishing paternity. Mother’s

mental health counselor did not provide Gabel with Mother’s records; therefore, Gabel

was unable to verify whether Mother was being consistent with the services. In February,

2021, Mother completed an initial assessment at Comquest. The evaluator

recommended Mother comply with a twice a week color code screening and continue

mental health services. Mother tested positive for alcohol on February 19, 2021, May 14,

2021, and June 2, 2021. She tested positive for methamphetamines on April 27, 2021,

and May 7, 2021, and positive for cocaine on June 16, 2021. Mother had failed to comply

with drug testing in the month prior to the hearing. Gabel opined Mother had not

demonstrated a commitment to the Child.

{¶10} During the best interest portion of the hearing, Gabel testified the Child is “a

fairly typical child,” and is a “very happy little infant.” Tr. at 21. The Child has some

asymmetry with his face and head, but he was in the process of getting a dock band which

will reshape his head. The asymmetry does not hinder the Child’s growth and

development. The Child is bonded with his foster family. The foster family is ensuring a Stark County, Case No. 2021CA00090 5

bond between the Child and his siblings who are in other placements. SCDJFS had not

been able to find an appropriate relative placement for the Child, but continued to

investigate possibilities. Gabel had not observed a discernable attachment between

Mother and the Child. Gabel added the Child would benefit from adoption and she did

not think any damage would occur if the trial court granted permanent custody to

SCDJFS.

{¶11} The trial court permitted Attorney Mary Lou Sekula, the Guardian ad Litem

(“GAL”), to make a statement. Attorney Sekula expressed her belief the Child was not

bonded with Mother. She added she did not observe Mother making efforts to build a

bond with the Child. When Attorney Sekula and the caseworker made an unannounced

visit to Mother’s home, they observed three other individuals at the residence. One of the

individuals had an extensive criminal history which included drugs. Attorney Sekula

observed two empty Crown Royal bottles on a table. Mother stated the bottles belonged

to a friend. Attorney Sekula opined the benefits to the Child of a permanent loving home

greatly outweighed any harm.

{¶12} The trial court issued Findings of Fact and Conclusions of Law on July 19,

2021. Via Judgment Entry filed the same day, the trial court terminated Mother’s parental

rights, privileges, and obligations, and granted permanent custody of the Child to

SCDJFS. Specifically, the trial court found Mother had involuntarily lost permanent

custody of other children. The trial court further found Mother failed to prove by clear and

convincing evidence she could provide a legally secure placement as well as adequately

care for the health, welfare, and safety of the Child. The trial court concluded the Child Stark County, Case No. 2021CA00090 6

should not be placed with Mother and it was in the Child’s best interest to grant permanent

custody to SCDJFS.

{¶13} It is from this judgment entry Mother appeals, raising the following

assignments of error:

I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR

CHILD CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT

THIS TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS

AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.

II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE

GRANTING OF PERMANENT CUSTODY WAS AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶14} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C). Stark County, Case No. 2021CA00090 7

I, II

{¶15} As an appellate court, we neither weigh the evidence nor judge the

credibility of the 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 (Feb. 10, 1982), Stark App. No. CA5758. 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 Constr. (1978), 54 Ohio St.2d 279.

{¶16} 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 the filing of a motion for permanent custody

of 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.

{¶17} 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, 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 placement agencies for twelve or Stark County, Case No. 2021CA00090 8

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

{¶18} 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.

{¶19} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should not

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶20} R.C. 2151.414(E) provides, in pertinent part:

(E) In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents, the court

shall consider all relevant evidence. If the court determines, by clear and

convincing evidence, at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the Stark County, Case No. 2021CA00090 9

Revised Code that one or more of the following exist as to each of the child's

parents, the court shall enter a finding that the child cannot be placed with

either parent within a reasonable time or should not be placed with either

parent:

(1) Following 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.

***

(11) The parent has had parental rights involuntarily terminated with

respect to a sibling of the child pursuant to this section or section 2151.353

or 2151.415 of the Revised Code, or under an existing or former law of this

state, any other state, or the United States that is substantially equivalent

to those sections, and the parent has failed to provide clear and convincing

evidence to prove that, notwithstanding the prior termination, the parent can Stark County, Case No. 2021CA00090 10

provide a legally secure permanent placement and adequate care for the

health, welfare, and safety of the child.

(16) Any other factor the court considers relevant.

{¶21} As set forth in our statement of the facts and case, supra, SCDJFS has

been involved with the family for over ten years. Despite years of case plan services,

Mother has been unable to adequately and safely care for any of her children. Mother

did not successfully complete her case plan services relative to the Child.

{¶22} The Child is “a fairly typical child,” and is a “very happy little infant.” Tr. at

21. The Child has some asymmetry with his face and head, but he was in the process of

getting a dock band which will reshape his head. The asymmetry does not hinder the

Child’s growth and development. The Child is bonded with his foster family. The foster

family is ensuring a bond between the Child and his siblings who are in other placements.

The on-going caseworker did not observe a discernable attachment between Mother and

the Child. The GAL did not believe the Child was not bonded with Mother. She did not

observe Mother making efforts to build a bond with the Child. Attorney Sekula opined the

benefits to the Child of a permanent loving home greatly outweighed the harm.

{¶23} We find the trial court's finding the Child should not be placed with Mother

within a reasonable period of time is not against the manifest weight of the evidence.

Moreover, pursuant to R.C. 2151.414(E)(11), the trial court was required to find the Child

could not and should not be placed with Mother within a reasonable time because Mother

(1) has had her parental rights involuntarily terminated with respect to the Child's siblings, Stark County, Case No. 2021CA00090 11

and (2) Mother failed to provide clear and convincing evidence to prove, notwithstanding

the prior termination, she could provide a legally secure permanent placement and

adequate care for the health, welfare, and safety of the Child. We further find the trial

court's finding it was in the Child's best interests to grant permanent custody to SCDJFS

is not against the manifest weight of the evidence.

{¶24} Mother’s first and second assignments of error are overruled.

{¶25} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.

By: Hoffman, J. Baldwin, P.J. and Gwin, J. concur