In re H.G.

2012 Ohio 1977

Opinion

[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.

___________________________________

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.

JUDGES