In re J.P.

2023 Ohio 1264

• Court: Ohio Court of Appeals
• Decided: April 18, 2023
• Docket: 2022 AP 11 0050
• Status: Published

Opinion

[Cite as In re J.P., 2023-Ohio-1264.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. W. Scott Gwin P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J. J.P. Case No. 2022 AP 11 0050

Abused and Dependent Child OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 22 JN 00083

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 18, 2023

APPEARANCES:

For Appellant For Appellee Tuscarawas JFS

LISA CALDWELL LISA VITALE ARNOLD 203 Fair Ave. NE 389 16th Street SW New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

For Appellee Joseph Neff Guardian ad Litem

DONOVAN R. HILL MARY WARLOP 112 Market Avenue North 116 Cleveland Avenue NW, Suite 500 Canton, Ohio 44702 Canton, Ohio 44702

For Child

TARA WRIGHT TIMBERLAKE 122 S. Wooster Ave. Strasburg, Ohio 44680 [Cite as In re J.P., 2023-Ohio-1264.]

Wise, John, J.

{¶1} Appellant Y.P. appeals the decision of the Tuscarawas County Court of

Common Pleas, Juvenile Division, which found her child J.P. to be a dependent and

neglected child and granted Tuscarawas County Job & Family Services (“the Agency”)

permanent custody of J.P. The following facts give rise to this appeal.

FACTS AND PROCEDURAL HISTORY

{¶2} J.P. was born on March 3, 2022 to Appellant and J.N. (“Father”).

{¶3} The Agency became involved with this family during Appellant’s previous

pregnancy when concerns of Appellant’s drug abuse were raised. Both Appellant and

Father attempted to work a case plan, but ultimately failed and the Agency was granted

permanent custody of J.P.’s older sibling.

{¶4} On March 15, 2022, the Agency again became involved with the family

when upon birth, J.P. tested positive for cocaine.

{¶5} On April 13, 2022, an adjudication hearing was held. Appellant stipulated to

the complaint as amended, and the Court accepted her stipulation finding J.P. to be

abused and dependent.

{¶6} On May 11, 2022, a disposition hearing was held. The agency presented a

case plan to Appellant and Father which was agreed to and made an order of the Court.

Appellant was in drug treatment at the time and was not added as a participant on the

case plan.

{¶7} After successfully completing treatment, Appellant worked the case plan.

{¶8} On August 10, 2022, the Agency filed a Motion to Modify Prior Disposition

to Permanent Custody. {¶9} On September 27, 2022, Appellant filed a Motion to Extend the Temporary

Custody of the Agency.

{¶10} On November 1, 2022, the trial court held a hearing on both the Motion to

Extend Temporary Custody of the Agency and the Motion to Modify Prior Disposition to

Permanent Custody.

{¶11} At the hearing the Agency called Skyler Smolak as its first witness. Mr.

Smolak testified the Agency became involved with this case when J.P. tested positive for

cocaine at birth. Appellant’s first residence was at River Haven to be treated for drug

abuse. She then spent one night with a Robert Morton, who kicked her out for still talking

with Father. She then provided the Agency with a New Philadelphia address at which they

could never make contact. Finally, she provided the address where she is living now.

{¶12} During the plan Appellant tested positive for cocaine on April 13, 2022 and

July 18, 2022. On April 13, 2022, Appellant still resided at River Haven and was adamant

she would not test positive for cocaine. On July 18, 2022, Appellant also took a drug

screen for Cobra Court, and she tested negative for cocaine on that urine test. On March

14, 2022, March 29, 2022, April 19, 2022, May 10, 2022, June 29, 2022, July 20, 2022,

July 27, 2022, August 3, 2022, August 31, 2022, and September 9, 2022, she tested

negative for all substances. Mr. Smolak puts little credibility in the urine tests at River

Haven and for Cobra Court, as you are able to flush the substances from your system.

However, the Agency’s saliva test goes to the metabolite level which cannot be faked.

{¶13} Father has a criminal history with two current pending cases; two fifth-

degree felonies for breaking and entering and theft on June 3, 2022, and a fifth-degree

grand theft of a motor vehicle on September 7, 2022. Father was incarcerated three times during the pendency of the case plan. Father was tested for drugs on April 13, 2022, April

29, 2022, May 11, 2022, and July 18, 2022. Father tested negative for all substances.

{¶14} On July 18, 2022, while in court reviewing this matter, Mr. Smolak asked

Appellant if she had spoken with Father during his time in jail or while out of jail. Appellant

answered in the negative. Mr. Smolak determined that to be a lie, as he had twenty-three

jail house recordings of phone calls between Appellant and Father.

{¶15} J.P. is currently thriving in foster care. He is up to date on all vaccinations

and medical appointments. He is doing well physically and should walk and talk soon. He

has bonded with his foster parents and his half-sibling.

{¶16} Appellant is currently participating in supervised visits with J.P. at the

Agency for an hour, once a week. They go well. She brings everything required for the

visits. Father has never visited J.P.

{¶17} The Agency’s concerns with reunifying Appellant and J.P. are Appellant’s

positive drug screens which she does not take responsibility for, the permanent custody

of her previous child, which closely resembles this case, and her relationship with Father.

She had an opportunity to be honest and up front about the relationship, and instead

chose to lie about it. The relationship is a concern because due to the child’s vulnerability

as an infant, J.P. would need a safe environment. Appellant and Father’s relationship

raises concerns that the home would not be a safe place for J.P.

{¶18} The Agency’s concerns with reunifying Appellant and Father are Father’s

extensive criminal history. He has been in and out of incarceration several times, and he

has never shown stable housing. {¶19} The Agency looked into J.P.’s grandfather as a potential placement, but he

was rejected due to his criminal history. Father gave his father as a potential placement

option, but he stated he was unable to take care of J.P. due to poor health. Robert Morton

was brought up by Appellant as a possible placement option, but he told the agency he

was unable to take care of J.P.

{¶20} On cross-examination, Mr. Smolak agreed that it was reasonable for

Appellant to take time to save up for housing after leaving River Haven. She voluntarily

participated in the case plan by attending counseling services through Ohio Guidestone,

completed a psychological evaluation, completed the Agency’s parenting education

course successfully, and has had good visits with J.P.

{¶21} Next, Jerome Reed testified he is currently employed as a certifying

scientist at Forensic Fluids Laboratories in Kalamazoo, Michigan. He stated there is a

zero percent chance that a confirmed screen could be a false positive. The difference

between a urine test and the saliva test the Agency does is the window of detection. The

oral test would test positive from fifteen minutes to about three days, where it takes hours

to show up in the urine test.

{¶22} Mary Warlop then testified she is the Guardian ad Litem for J.P. Ms. Warlop

indicated she has concerns about J.P. being placed with Appellant. Appellant has a

criminal history, has lost permanent custody of one child, J.P. was born testing positive

for cocaine, her relationship with Father, and Appellant appears to still be struggling with

sobriety.

{¶23} Currently, J.P. lives in a clean and comfortable home. All of his needs are

being met. He is a happy child. He has bonded with the foster family and half sibling. He reaches to them when he needs things. J.P. is developing well, seems bright, and

maintains good eye contact. He is healthy and well fed. It is Ms. Warlop’s opinion that the

court grant permanent custody to the Agency.

{¶24} On cross-examination, Ms. Warlop noted Appellant’s change in behavior

from her pervious case to now. She did not participate in the previous case plan and went

missing for a period of time during that case plan. She has remained involved,

continuously visited with J.P., and even completed non-required services.

{¶25} The Agency then rested.

{¶26} Appellant called her first witness, Danelle German. Ms. German testified

she works at Ohio Guidestone as a therapist and supervisor. She is a licensed social

worker and dependency counselor. Appellant was very active in therapy and making

appropriate progress. Appellant was adamant she did not use cocaine. After her positive

tests she stopped brushing her teeth before meeting with the Agency because she feared

cocaine had gotten in her toothpaste.

{¶27} Next, Appellant called Julie Laughlin as a witness. Ms. Laughlin testified

she has been an officer with the Cobra Court since 1998. She was assigned as

Appellant’s probation officer. Appellant was tested fifty-nine times by Ms. Laughlin and

received negative results every time.

{¶28} Finally, Appellant testified she has been living at the same address for six

months, that she has been sober for ten months, and that she has been cutting off contact

with Father. Her visits with J.P. have been going well, and she wants an extension to

show she can provide a stable, safe, and sober home for J.P. {¶29} On November 4, 2022, Appellant granted the Agency’s Motion and awarded

permanent custody of J.P. to the Agency.

ASSIGNMENT OF ERROR

{¶30} Thereafter, Appellant timely filed her notice of appeal and raises the

following Assignment of Error:

{¶31} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS THE AGENCY FAILED

TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD COULD NOT

BE PLACED WITH MOTHER IN A REASONABLE AMOUNT OF TIME, AND THAT THE

AWARD OF PERMANENT CUSTODY WAS IN THE CHILD’S BEST INTEREST.”

I.

{¶32} In Appellant’s sole Assignment of Error, the trial court erred when finding

J.P. could not be placed with Appellant in a reasonable amount of time, and that awarding

permanent custody to the Agency was not in J.P.’s best interest. We disagree.

{¶33} 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, 5th Dist. Stark App. No. 5758, 1982 WL 2911, *1. 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. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶34} 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.

{¶35} 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

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

1999.

{¶36} 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; and (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. {¶37} 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.

{¶38} Here, R.C. §2151.414(B)(1)(a) applies as the trial court found that J.P. is

not abandoned or orphaned and cannot be placed with either of J.P.’s parents within a

reasonable time.

{¶39} 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.

{¶40} The trial court found that Appellant has previously lost custody of her older

child, she has a criminal history and a history of drug abuse, has tested positive for

cocaine during the pendency of J.P.’s case plan, and has maintained a relationship with

Father despite his criminal history, incarceration, and pending criminal charges. The

Agency has concerns over the safety of the home should Appellant and Father maintain

a relationship. Appellant lied about maintaining contact with Father after Father went to

jail.

{¶41} Father is currently incarcerated and at the time of the hearing had

outstanding criminal charges. He has previously lost custody of two siblings of J.P. Father

has not maintained contact with the caseworker. {¶42} The trial court found it is in the best interest for the Agency to be awarded

permanent custody of J.P., as it is in his best interest. He has bonded with his foster family

and is thriving. His older half-sibling is also with the foster family, and J.P. has bonded

with his half-sibling as well. He is healthy, well fed, and makes all his medical

appointments.

{¶43} Upon review, we find the evidence at the permanent custody hearing shows

Appellant failed two drug tests administered by the Agency, maintained contact with

Father and lied to the Agency about that contact, that J.P. has bonded with his foster

family and half-sibling, and is currently thriving.

{¶44} Based upon the foregoing, we find there is clear and convincing evidence

to support the trial court’s finding that it was in the best interest of the children to grant

permanent custody to the Agency.

{¶45} The judgment of the Court of Common Pleas, Juvenile Division of

Tuscarawas County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

King, J., concur.