In re J.Y.

2021 Ohio 2126

• Court: Ohio Court of Appeals
• Decided: June 25, 2021
• Docket: 2021-CA-4
• Status: Published

Opinion

[Cite as In re J.Y., 2021-Ohio-2126.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

IN THE MATTER OF: J.Y. : : : Appellate Case No. 2021-CA-4 : : Trial Court Case No. N49238 : : (Appeal from Common Pleas Court- : Juvenile Division) : :

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OPINION

Rendered on the 25th day of June, 2021.

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Appellee, Greene County Children Services

KELLY M. SCHROEDER, Atty. Reg. No. 0080637, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Appellant, Mother

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WELBAUM, J. -2-

{¶ 1} Mother appeals from a judgment of the Greene County Court of Common

Pleas, Juvenile Division, which terminated her parental rights and granted permanent

custody of her daughter, J.Y., to Greene County Children Services (“GCCS”). For the

reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} Mother has five children, one of which is J.Y., who is currently eight years

old. On October 16, 2018, when J.Y. was five years old, GCCS filed a neglect and

dependency complaint and motion for interim custody of J.Y. The complaint and motion

contained several allegations, including that J.Y.’s father (“Father”) choked one of J.Y.’s

older siblings. It was also alleged that Mother had recently married a sex offender, C.B.,

who had been convicted of raping a juvenile victim. Although C.B. was not permitted to

have contact with children, it was alleged that Mother’s children shared a bed with C.B.

at a Super 8 Motel. It was further alleged that GCCS obtained a “family” photograph of

C.B. sticking his tongue out and touching it on the forehead of one of J.Y.’s siblings.

{¶ 3} The complaint and motion also contained allegations of Mother’s sleeping in

a van with all five of her children and Mother’s leaving J.Y.’s one-year-old sibling in a

vehicle for 30 minutes at a Kroger parking lot. It was also alleged that the condition of

Mother’s home had been consistently poor and that Mother had a pattern of neglecting to

supervise her children and an inability to make safe decisions for her children. It was

further alleged that Mother and her children had been involved in 14 prior children

services investigations and had several open investigations with GCCS. The complaint

noted that a recently-closed investigation involved allegations of Mother using corporal -3-

punishment on one of her children and Mother engaging in possible drug activity.

{¶ 4} On October 31, 2018, the trial court granted GCCS interim custody of J.Y.

Thereafter, the trial court held an adjudication hearing on the neglect and dependency

complaint. Following the adjudication hearing, the trial court adjudicated J.Y. a

neglected and dependent child on November 16, 2018. After the adjudication, the trial

court held a disposition hearing. At the disposition hearing, Mother and Father agreed

that it was in J.Y.’s best interest to follow GCCS’s recommendation for GCCS to obtain

temporary custody of J.Y. The trial court thereafter granted GCCS temporary custody of

J.Y. on December 12, 2018.

{¶ 5} Nine months after obtaining temporary custody of J.Y., GCCS filed a motion

to extend the temporary custody order so that Mother could complete her case plan

objectives and demonstrate her ability to parent J.Y. in a safe, stable environment. On

November 13, 2019, the trial court held a hearing on the motion and thereafter granted

GCCS’s request for an extension of temporary custody.

{¶ 6} Five months after the extension, GCCS filed a motion on April 23, 2020,

requesting the trial court to grant GCCS permanent custody of J.Y. In the motion, GCCS

alleged that Mother’s visitation with J.Y. had not been consistent due to J.Y.’s refusing

visits with Mother. GCCS also alleged that when J.Y. did visit Mother, J.Y. would start

to exhibit extreme behaviors.

{¶ 7} The trial court held a permanent custody hearing on October 23, 2020.

Mother attended the hearing along with her counsel. Father did not attend the hearing.

Following the hearing, the trial court issued a judgment entry on February 8, 2021,

terminating Mother and Father’s parental rights and awarding GCCS permanent custody -4-

of J.Y. In so holding, the trial court applied R.C. 2151.414 and found that: (1) J.Y. had

been in the temporary custody of a public service agency for 12 or more months of a

consecutive 22-month period; and 2) granting GCCS permanent custody was in J.Y.’s

best interest. Mother now appeals from that decision.

Assignment of Error

{¶ 8} Under her sole assignment of error, Mother argues that the trial court’s

decision terminating her parental rights and awarding GCCS permanent custody of J.Y.

was erroneous because it was not in J.Y.’s best interest.

{¶ 9} R.C. 2151.414(B)(1) provides a two-part test for courts to apply when

determining whether to grant a motion for permanent custody to a public services agency.

In re R.L., 2d Dist. Greene Nos. 2013-CA-46, 2013-CA-50, 2014-Ohio-3955, ¶ 7. The

statute requires the trial court to find by clear and convincing evidence that: (1) an award

of permanent custody to the agency is in the child’s best interest; and (2) any one of the

factors enumerated in R.C. 2151.414(B)(1)(a)-(e) exist.

{¶ 10} Mother concedes that the second part of the two-part test is satisfied. This

is because the factor under R.C. 2151.414(B)(1)(d) applies to J.Y., as J.Y. “has been in

the temporary custody of one or more public children services agencies * * * for twelve or

more months of a consecutive twenty-two month period.” R.C. 2151.414(B)(1)(d).

Therefore, Mother is only challenging the trial court’s finding that permanent custody in

favor of GCCS was in J.Y.’s best interest.

{¶ 11} When making the best-interest determination, R.C. 2151.414(D)(1) requires

the trial court to consider all relevant factors, including but not limited to the following: -5-

(a) The interaction and interrelationship of the child with the child’s parents,

siblings, relatives, foster caregivers and out-of-home providers and any

other person who may significantly affect the child;

(b) 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;

(c) 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;

(d) 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; and

(e) Whether any of the factors in R.C. 2151.414(E)(7) through (11) are

applicable.

R.C. 2151.414(D)(1)(a)-(e).

{¶ 12} The trial court’s findings under R.C. 2151.414(D)(1) must be supported by

clear and convincing evidence. In re K.W., 2d Dist. Clark No. 2013-CA-107, 2014-Ohio-

4606, ¶ 7. The Supreme Court of Ohio has defined “clear and convincing evidence” as

“[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, 104, 495 N.E.2d 23 (1986). -6-

{¶ 13} “The [trial] court’s decision to terminate parental rights * * *will not be

overturned * * * 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.” (Citations omitted). In re A.U.,

2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. “On review, we give the trial

court’s final determination ‘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 the

Matter of G.B., 2d Dist. Greene No. 2017-CA-30, 2017-Ohio-8759, ¶ 8, quoting In re

Alfrey, 2d Dist. Clark No. 2001-CA-83, 2003-Ohio-608, ¶ 102. The trial court’s decision

will not be reversed absent an abuse of discretion. In re E.D., 2d Dist. Montgomery No.

26261, 2014-Ohio-4600, ¶ 7, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862

N.E.2d 816, ¶ 48.

{¶ 14} In support of her appeal, Mother claims that the best-interest factors in R.C.

2151.414(D)(1) weigh in favor of her having custody of J.Y. We are, however, limited in

our ability to review that issue due to Mother’s failing to file a transcript of the permanent

custody hearing. Pursuant to App.R. 9(B), it is the appellant’s duty to file the transcript

or any parts of the transcript that are necessary for evaluating the trial court’s decision.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). “This

is necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.” Id. at 199, citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978). Without the filing of a transcript (or a statement of the evidence or

proceedings under App.R. 9(C) or an agreed statement under App.R. 9(D)), this court

has nothing to pass upon and must presume the validity of the trial court’s proceedings -7-

and affirm. Id. This means that “we must presume that the trial court acted with

regularity and did not abuse its discretion.” Pennington v. Pennington, 2d Dist.

Montgomery No. 19092, 2002 WL 1252173, *2 (June 7, 2002); Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988).

{¶ 15} In making its best-interest determination, the trial court weighed the relevant

factors under R.C. 2151.414(D)(1) and made the following findings from the testimony1

presented at the permanent custody hearing.

1. Child’s Interaction and Interrelationship with Parents, Siblings, and Foster Parents

{¶ 16} The interrelationship between J.Y. and Mother is detrimental to J.Y. J.Y.

expressed to her GCCS caseworker that she did not want to see her biological parents

and that she considered her foster parents to be her mother and father. J.Y.’s case

manager and mental health counselor at St. Vincent’s Family Center testified that J.Y.

regressed when her biological family was discussed as being part of her treatment plan.

The regression included J.Y.’s defecating and urinating on herself a couple of times a day

and exhibiting increased physical aggression toward her peers. After visits with Mother,

J.Y. also began undressing herself in class, hoarding food in school, being sexually

aggressive with other children, and soiling herself more frequently. The professionals

involved in J.Y.’s care correlated these behaviors to the trauma J.Y. experienced while in

Mother’s care.

1The trial court’s February 8, 2021 judgment entry indicates that the following individuals testified at the permanent custody hearing: Richard Bromberg, Ph.D.; Brooke Gibson, Residential Case Manager; Kristine Gjessing, Mental Health Counselor; Gina VanWinkle, GCCS Case Worker; Foster Father; and Mother. -8-

{¶ 17} Mother’s choice of relationships was also a concern because Father was

physically abusive toward her children and Mother’s current husband was a registered

sex offender whose victim was a four-year-old girl. Even after learning of her husband’s

criminal history, Mother stayed with him and kept her children around him.

{¶ 18} J.Y. has not seen Father for an extended period of time, and neither J.Y.

nor Father desire to reunify with one another. J.Y.’s relationship with her siblings is also

minimal. When asked about her family, J.Y. could not remember her biological siblings’

names.

{¶ 19} The testimony of J.Y.’s foster father (“Foster Father”) established that he

had been J.Y.’s foster parent for over 16 months. Foster Father testified how he, his

wife, and family had addressed J.Y.’s basic and special needs and about the positive

progression in J.Y.’s behavior and schooling after she was placed in their care. Foster

Father testified that J.Y. made gradual, albeit great strides in her development until she

started resuming visits with her biological family. Foster Father testified that he and his

wife have considered adopting J.Y. and would like to provide her with a happy childhood

and a safe, stable home.

2. Wishes of the Child

{¶ 20} J.Y.’s court appointed special advocate/guardian ad litem set forth in her

report that J.Y. has stated that she would like to remain to her foster parents’ care.

3. Custodial History of the Child

{¶ 21} J.Y. was in her Mother’s custody until being removed by the court in October -9-

2018, when J.Y. was five years old. J.Y. had little visitation or contact with Father prior

to GCCS’s involvement.

4. Child’s Need for Legally Secure Permanent Placement

{¶ 22} The evidence was clear and convincing that a legally secure permanent

placement for J.Y. could not be achieved without a grant of permanent custody to GCCS.

While Mother had completed case plan objectives identified by GCCS, she had been

unable to exemplify what she had learned. This is because Mother had been unable to

visit J.Y. due to J.Y.’s regression in her treatment, as well as Mother’s own inability to

recognize the role she played in the traumas that J.Y. has experienced. If Mother was

unable to recognize and accept responsibility for the issues causing J.Y.’s trauma, there

were concerns about Mother’s ability to protect J.Y., maintain a safe, stable home for J.Y.,

and address J.Y.’s basic and special needs.

{¶ 23} There was also a lack of parental bond between J.Y. and her biological

parents. Mother, Father, and J.Y. all suffered from mental health issues and needed to

further engage in treatment. There was no appropriate relative placement for J.Y., and

J.Y.’s mental health and treatment needs were triggered and exacerbated by her

biological parents. The licensed psychologist who performed a psychological and

parenting-risk evaluation on Mother determined that Mother provided defensive,

minimized, and understated responses on the evaluation. Given Mother’s responses,

the licensed psychologist found that it was impossible to rule out major parenting

concerns such as child abuse.

{¶ 24} Based on the foregoing findings, the trial court determined that it was in -10-

J.Y.’s best interest to terminate Mother and Father’s parental rights and to grant GCCS

permanent custody of J.Y. In the absence of a transcript of the permanent custody

hearing, we have no basis from which to conclude that the trial court’s decision was an

abuse of discretion. We also note that Mother’s psychological and parenting-risk

evaluation was included in the record as State’s Exhibit 1. In the evaluation, the licensed

psychologist concluded within a reasonable degree of scientific certainty that Mother

“presents a high risk of negligence, a high risk of physical abuse, and a high risk of sexual

abuse of her children, by her own actions or by the victimization of others, while in her

independent care.” State’s Exhibit 1. Therefore, because the record presented on

appeal does not indicate that the trial court’s best-interest determination was an abuse of

discretion, we find that the trial court did not err by terminating Mother’s parental rights

and by granting GCCS permanent custody of J.Y.

{¶ 25} Mother’s sole assignment of error is overruled.

Conclusion

{¶ 26} Having overruled Mother’s sole assignment of error, the judgment of the

trial court is affirmed.

TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Marcy A. Vonderwell Kelly M. Schroeder Kimberly Baylor, GAL John Leahy Hon. Amy H. Lewis