In re J.G.

2021 Ohio 1479

• Court: Ohio Court of Appeals
• Decided: April 28, 2021
• Docket: 2021 CA 0002
• Status: Published

Opinion

[Cite as In re J.G., 2021-Ohio-1479.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN RE: J.G. : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. : : : Case No. 2021 CA 00002 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Family Court Division, Case No.2019JCV01271

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 28, 2021

APPEARANCES:

For - SCJFS For - Mother

JAMES B. PHILLIPS KELLY S. MURRAY 300 Market Avenue North 800 Courtyard Center Canton, OH 44702 116 Cleveland Avenue NW Canton, OH 44702 [Cite as In re J.G., 2021-Ohio-1479.]

Gwin, J.

{¶1} Appellant-mother [“Mother”] appeals the December 16, 2020 Judgment

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

terminated her parental rights with respect to her minor child, J.G.1 (b. Apr. 15, 2019) and

granted permanent custody of the child to appellee, Stark County Department of Jobs

and Family Services (hereinafter “SCJFS”).

Facts and Procedural History

{¶2} On December 17, 2019, SCJFS filed a complaint alleging dependency and

or neglect of J.G. Mother, M.G., is the biological mother of the child. On December 18,

2019, the trial court found probable cause existed for SCJFS to be involved and placed

the child into emergency temporary custody with SCJFS. On December 30, 2019, a

Guardian Ad Litem [“GAL”] was appointed for the child. On January 15, 2020, an

evidentiary hearing was set for February 28, 2020 to determine adjudication and

disposition. On February 21, 2020, the GAL filed a report and recommended this child

be placed in the temporary custody of SCJFS. On March 3, 2020, Mother stipulated to

a finding of dependency at the adjudicatory hearing. A disposition hearing was held

that same day and the court placed the child in the temporary custody of SCJFS. The

court approved and adopted the case plan filed on January 23, 2020.

{¶3} On June 6, 2020, a dispositional review was held where the trial court was

unable to find compelling reasons to preclude a request for permanent custody to SCJFS

due to the lack of reduction of the risk. On October 20, 2020, SCJFS filed a motion for

permanent custody. On November 13, 2020, a dispositional review was held and again

1 See, Juv. R. 5; OH ST Supp. R. 44(H) and 45(D) concerning the use of personal identifiers. Stark County, Case No. 2021 CA 00002 3

the court found no compelling reasons to preclude a request for permanent custody. At

that time, the finding was made due to the pending permanent custody hearing on

December 8, 2020.

{¶4} On December 8, 2020, the permanent custody hearing was held pursuant

to RC. 2151.414.

Permanent Custody trial.

{¶5} Mother did not appear at the permanent custody hearing; however, she

was represented by appointed counsel.

{¶6} The ongoing caseworker, Carmona Griffin, testified that J.G. was originally

placed in the emergency temporary custody of the SCJFS on December 16, 2019 and had

remained in the custody of the SCJFS since that date. The child was found dependent as

to all parents on February 28, 2019 and at on the date of the permanent custody trial the

child had been in the temporary custody of the SCJFS for just short of a year.

{¶7} Ms. Griffin testified that Mother had services on her case plan that required her

to complete a substance abuse assessment at CommQuest, complete an anger

management assessment at CommQuest, submit to random drug testing on the color code

system, and successfully complete the Goodwill Parenting Program. Mother only

completed the substance abuse assessment at CommQuest. Mother failed to follow

through with the recommended treatment. Ms. Griffin testified that Mother had left the

state and was presently residing in the state of Alabama. Ms. Griffin testified that Mother

last visited J.G. on February 6, 2020.

{¶8} During the Best Interest part of the hearing, Ms. Griffin testified that the

child had no medical issues or delays. J.G. had been placed in his current foster home Stark County, Case No. 2021 CA 00002 4

in December 2019. Ms. Griffin testified that the child has a significant bond with the foster

parent as she is the only mother J.G. has known. Ms. Griffin testified that there is no

bond between the child and Mother. Ms. Griffin testified that she believed that it was in

J.G.’s best interest for permanent custody to be granted.

{¶9} The GAL for the child, submitted a report that recommended that permanent

custody be granted to the SCJFS.

{¶10} On December 16, 2020, the trial court issued its findings of fact and

conclusions of law granting permanent custody of J.G. to SCJFS and terminating Mother’s

parental rights. The trial court found that J.G. could not and should not be placed with

Mother at this time or within a reasonable period of time, the child had been abandoned

by Mother, and permanent custody was in J.G.'s best interest.

Assignment of Error

{¶11} Mother raises one Assignment of Error,

{¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT THE CHILD COULD

NOT BE PLACED WITH MOTHER WITHIN THE FORESEEABLE FUTURE.”

Law and analysis

Standard of Appellate Review

{¶13} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody

and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's Stark County, Case No. 2021 CA 00002 5

rights has been described as, “* * * the family law equivalent to the death penalty in a

criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).

Therefore, parents “must be afforded every procedural and substantive protection the law

allows.” Id. An award of permanent custody must be based upon clear and convincing

evidence. R.C. 2151.414(B)(1).

{¶14} The Ohio Supreme Court has delineated our standard of review as follows,

“clear and convincing evidence” is “[t]he measure or degree of proof that will produce in

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

established. It is intermediate, being more than a mere preponderance, but not to the

extent of such certainty as required beyond a reasonable doubt as in criminal cases. It

does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-

104, 495 N.E.2d 23 (1986). In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118

(1954), the Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for resolving

disputed facts. The degree of proof required is determined by the

impression which the testimony of the witnesses makes upon the trier of

facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is

in conflict, the trier of facts may determine what should be accepted as the Stark County, Case No. 2021 CA 00002 6

truth and what should be rejected as false. See Rice v. City of Cleveland,

114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added). A court of appeals will affirm the trial court's

findings “if the record contains competent, credible evidence by which the court could

have formed a firm belief or conviction that the essential statutory elements for a

termination of parental rights have been established.” In re Adkins, 5th Dist. Nos.

2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.

Requirements for Permanent Custody Awards

{¶15} 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 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.

{¶16} 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, 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, or 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 if, as Stark County, Case No. 2021 CA 00002 7

described in division (D)(1) of section 2151.413 of the Revised Code, the

child was previously in the temporary custody of an equivalent agency in

another state, 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 placing agencies for twelve or

more months of a consecutive twenty-two-month period, or 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 and, as described in division (D)(1) of

section 2151.413 of the Revised Code, the child was previously in the

temporary custody of an equivalent agency in another state.

{¶17} 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. Stark County, Case No. 2021 CA 00002 8

1. Abandonment – R.C. 2151.414(B)(1)(b).

{¶18} In the case at bar, the trial court found, by clear and convincing evidence,

that Mother abandoned the child pursuant to R.C. 2151.414(B)(1)(b). Pursuant to R.C.

2151.011(C), a child is “presumed abandoned when the parties of the child have failed to

visit or maintain contact with the child for more than ninety days, regardless of whether

the parents resume contact with the child after that period of ninety days.”

{¶19} The trial court found that Mother had abandoned J.G. by virtue of her lack

of contact, lack of bonding, failure to support, and failure to attempt any form of

reunification.

{¶20} Competent, credible evidence supports the trial court’s findings. In the case

at bar, Mother’s last visit with J.G. was February 6, 2020. The motion for permanent

custody was filed October 26, 2020. Thus, one hundred eighty-three days had elapsed

without contact between Mother and J.G. before the filing of the motion for permanent

custody. Mother has left Ohio and is now residing in Alabama. Mother has not disputed

these facts.

{¶21} A trial court’s finding of abandonment under R.C. 2151.414(B)(1)(b) will

satisfy the first prong of the permanent custody test, independent of a finding under R.C.

2151.414(B)(1)(a) [Parental Placement within a Reasonable Time], allowing the court to

move on to the second prong of considering whether the grant of permanent custody to

the agency is in the best interest of the child. In re A.M., 5th Dist. Stark No. 2013 CA

00113, 2013-Ohio-4152. Stark County, Case No. 2021 CA 00002 9

2. The Best Interest of the Child.

{¶22} We have frequently noted, “[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, 5th Dist. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re

Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).

{¶23} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child’s parents, siblings, relatives, foster parents and out-of-home providers,

and any other person who may significantly affect the child; (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; (3) the custodial history of the child; (4) the child’s need for a

legally secure placement and whether that type of placement can be achieved without a

grant of permanent custody; and (e) whether any of the factors in divisions (E)(7) to (11)

of this section apply in relation to the parents and child. No one element is given greater

weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862

N.E.2d 816.

{¶24} A child’s best interests are served by the child being placed in a permanent

situation that fosters growth, stability, and security. The willingness of a relative to care

for the child does not alter what a court considers in determining permanent custody. In

re Patterson, 134 Ohio App.3d 119, 730 N.E.2d 439 (9th Dist. 1999); In re Adoption of Stark County, Case No. 2021 CA 00002 10

Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991). Accordingly, a court is not required

to favor a relative if, after considering all the factors, it is in the child’s best interest for the

agency to be granted permanent custody. In re R.P. and I.S., 5th Dist. Tuscarawas No.

2011AP050024, 2011-Ohio-5378.

{¶25} In the present case, the trial court's decision indicates it considered the best

interest factors. The trial court concluded the child's need for legally secure placement

could not be achieved without awarding permanent custody to SCJFS. Upon review of

the record, it is clear that the record supports the trial court's finding that granting the

motion for permanent custody is in J.G.’s best interest.

{¶26} J.G. had been placed in his current foster home since December 2019, which

is basically his entire life. Ms. Griffin testified that the child has a significant bond with the

foster parent as she is the only mother he has known. Ms. Griffin testified that there is no

bond between the child and Mother. The foster parent has indicted that she wished to

adopt the child if permanent custody was granted. Ms. Griffin testified that she believed

that it was in J.G. best interest for permanent custody to be granted. The GAL presented

a written report to the trial court that recommended permanent custody be granted to the

SCDJFS.

Conclusion

{¶27} For these reasons, we find that the trial court’s determination that Appellant-

Mother had abandoned J.G. was based upon competent credible evidence and is not

against the manifest weight or sufficiency of the evidence. We further find that the trial

court’s decision that permanent custody to SCJFS was in the child's best interest was Stark County, Case No. 2021 CA 00002 11

based upon competent, credible evidence and is not against the manifest weight or

sufficiency of the evidence.

{¶28} Because the evidence in the record supports the trial court’s judgment, we

overrule Appellant-Mother’s sole assignment of error, and affirm the decision of the Stark

County Court of Common Pleas, Family Court Division.

By: Gwin, J.,

Baldwin, P.J., and

Hoffman, J., concur