[Cite as In re L.G., 2021-Ohio-743.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF L.G. AND J.G. : JUDGES: : Hon. Craig R. Baldwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. : : : Case Nos. 2020-CA-00139 : 2020-CA-00140 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case Nos. 2018-JCV-1331 & 2018-JCV-1332
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 11, 2021
APPEARANCES:
For Appellant - Mother For Appellee
TY A. GRAHAM BRANDON J. WALTENBAUGH 4450 Belden Village Street NW Stark County JFS #703 402 2nd St SE Canton, OH 44718 Canton, OH 44702 Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 2
Wise, Earle, J.
{¶ 1} Appellant, J.H., mother of L.G. and J.G. (Mother) filed this appeal from the
judgment entered in Stark County Court of Common Pleas, Juvenile Court Division, which
terminated all parental rights, privileges and responsibilities of Mother and ordered that
permanent custody of the minor children be granted to Stark County Department of Job
and Family Services, (SCJFS).
{¶ 2} This appeal is expedited, and is being considered pursuant to
App.R.11.2(C). The relevant facts leading to this appeal are as follow:
FACTS AND PROCEDURAL HISTORY
{¶ 3} On December 21, 2018, SCJFS filed complaints requesting protective
supervision of and alleging dependency and neglect of five-year-old L.G. and four-year-
old J.G. J.G. is afflicted with cerebral palsy and is medically fragile. The allegations
contained in the complaints included medical, nutritional, and educational neglect,
hygiene issues, and L.G coming to school smelling of marijuana. The complaints
additionally outlined concerns regarding Mother's drug use, and refusal to cooperate with
the children's schools and SCJFS in their attempts to resolve the concerns.
{¶ 4} An emergency shelter care hearing was held on December 26, 2018.
Mother did not appear and father was incarcerated. Rather than grant protective
supervision, the trial court found probable cause existed for SCJFS's involvement and
that continued placement in the children's home would be contrary to their health and
welfare. L.G. and J.G. were therefore placed in the emergency temporary custody of
SCJFS. On January 8, 2019, SCJFS filed amended complaints seeking temporary
custody of the children. Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 3
{¶ 5} On various dates between March 5 and March 19, 2019, the trial court heard
evidence regarding the complaints and initial disposition of the children. Testimony
revealed J.G. was in need of leg braces, a special wheelchair, and due to difficulty
swallowing, has dietary restrictions. J.G. was enrolled at Eastgate, a Stark County Board
of Developmental Disabilities (Stark DD) school. Eastgate staff had concerns regarding
mother's lack of involvement in J.G.'s treatment plan. J.G. frequently arrived at school
dehydrated, and with his hair dirty and matted. He needed to see various specialists to
address his challenges, but mother ignored attempts by Eastgate staff to get mother
engaged in J.G.'s treatment plan. Stark DD therefore referred the matter to SCJFS.
{¶ 6} L.G. was enrolled at Duber Elementary but his attendance was very poor
and he had behavior issues. When L.G. did go to school, he smelled of marijuana. On
one occasion the odor was so strong, school officials searched his backpack thinking he
was in possession of marijuana. Attempts were made by Duber staff to mediate L.G.'s
attendance issues with Mother to no avail.
{¶ 7} On March 19, 2019 the trial court placed the children in the temporary
custody of SCJFS, adopted and approved the initial case plan, found SCJFS had made
reasonable efforts to finalize the permanency planning, compelling reasons existed to
preclude a filing for permanent custody and ordered status quo.
{¶ 8} Mother's case plan required her to engage in mental health and substance
abuse treatment, obtain sobriety, attend medical appointments and engage in services
for the children, and attend Goodwill parenting classes after obtaining sobriety.
{¶ 9} The matter was reviewed on June 19, 2019. The court again approved the
case plan, found reasonable efforts by SCJFS, and compelling reasons existed to Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 4
preclude a filing for permanent custody. At that point, mother was testing positive for
marijuana and cocaine, and could not make progress with her case plan until she obtained
sobriety.
{¶ 10} On October 17, 2019, SCJFS filed a motion for permanent custody. The
matter was set for evidence on January 28, 2020.
{¶ 11} The next review took place on November 15, 2019. The court approved and
adopted the case plan, found SCJFS had made reasonable efforts to finalize permanency
planning, ordered status quo and found no compelling reasons existed to preclude a filing
for permanent custody. Mother was still using drugs, refused to cooperate with drug
screening, was not engaged in mental health services, and had recently been charged
with a felony involving a gun.
{¶ 12} On January 14, 2020, Mother filed a motion to extend temporary custody
for six months. Pursuant to Mother's request the evidentiary hearing was continued to
April 30, 2020.
{¶ 13} On April 17, 2020, the trial court continued the matter to July 22, 2020 due
to the Covid-19 pandemic. The court reviewed the matter on May 14, 2020 and approved
and adopted the case plan, found reasonable efforts by SCJFS and ordered status quo.
The trial court further found no compelling reason to preclude the filing for permanent
custody. The court noted the children were doing well in foster care, and Mother remained
non-compliant with counseling and drug screening, and had not begun parenting classes
due to her failure to achieve sobriety.
{¶ 14} On May 15, 2020 SCJFS filed a second motion for permanent custody, this
one alleging the children could not be placed with either parent within a reasonable time Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 5
and that the children had been in the temporary custody of SCJFS for 12 or more months
in a consecutive 22-month period.
{¶ 15} On July 14, 2020, Robin Minor, the Guardian ad Litem for the children filed
her final report recommending the children be placed in the permanent custody of SCJFS.
Minor indicated the children were doing well in their foster placements and Mother had
failed to make any progress in her case plan.
{¶ 16} On July 22, 2020, the trial court heard testimony on the motion for
permanent custody. SCJFS case worker Kimberly Gabel testified Mother had not
completed her case plan, had not reduced the risk posed to her children, and that the
children had been in SCJFS temporary custody for 12 or more months in a 22-month
period.
{¶ 17} Gabel stated Mother provided drug screens positive for marijuana, cocaine,
and alcohol and often refused to comply with drug screens. She further stated Mother
had, while intoxicated, pointed a gun at someone at a gas station. According to Gabel
Mother could not begin parenting classes until she achieved sobriety, which had not taken
place. Moreover, Mother's housing had been unstable throughout the pendency of this
matter and she refused to provide documentation for housing or of her income to obtain
housing.
{¶ 18} Mother's parenting evaluation was conducted by Michael Stranathan.
Stanathan testified Mother did not have sufficient knowledge of basic parenting skills,
resisted assistance from professionals and was defensive. Stranathan diagnosed Mother
with anti-social personality disorder as well as cannabis, cocaine/stimulant, and alcohol
disorders. He recommended Mother engage in mental health services, substance abuse Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 6
counseling parenting classes and eventually joint counseling with the children. Stranahan
did not recommend reunification with the children until Mother had completed these
services.
{¶ 19} Commquest Administrative Supervisor Kim Fraley testified Mother
completed a substance abuse assessment, was recommended for treatment, and
completed that treatment. After completing treatment, however, Mother tested positive for
cocaine and alcohol and was therefore asked to submit to drug testing at least twice a
week. Mother agreed, but then did not submit to further drug screens and was terminated
from Commquest.
{¶ 20} Summit Psychological Associates counselor Star Jones testified Mother
completed her assessment in April 2019, and was initially compliant with treatment. Over
time however, mother decreased her attendance and stopped appearing at all in August
2019. Jones stated throughout what counseling mother did engage in, she failed to take
any responsibility for the removal of her children from her home.
{¶ 21} Mother testified on her own behalf and admitted she had been inconsistent
with counseling, had not complied with drug counseling, was not employed, had failed
her most recent drug test, and had pled guilty to a fourth degree felony involving a firearm.
{¶ 22} Regarding the children, Gabel testified L.G. has behavioral and emotional
issues, had killed multiple animals while in SCJFS custody and was physically aggressive
with his peers. Gabel stated L.G. is in counseling and on medication. Gabel also indicated
L.G. had missed a lot of school while in mother's custody, but now has an IEP and is
improving at school. She stated L.G. is bonded with his foster family but still loves his
parents. Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 7
{¶ 23} As for J.G., Gabel testified his cerebral palsy is severe and requires
significant medical attention. Those needs are being met by his foster family. J.G. also
has an IEP, has been able to transfer to a public school, and receives multiple therapies.
He is doing well in foster care and is bonded with his foster family. The children were
placed in separate foster homes after L.G. harmed animals and broke a foster sibling's
collarbone.
{¶ 24} Gabel additionally testified relative placements for the children were
explored, but none were appropriate. Gable stated permanent custody would be in the
children's best interests. Mother testified and disagreed with this assessment.
{¶ 25} Minor, the children's GAL testified that although the children are bonded
with Mother, due to her non-compliance with the case plan, continued drug use, mental
health issues, and criminal behavior, granting permanent custody to SCJFS was in the
children's best interests.
{¶ 26} After taking the matter under advisement, the trial court issued findings of
fact granting permanent custody of the children to SCJFS and terminated parental rights.
The court found despite reasonable efforts by SCJFS the children could not be placed
with mother within a reasonable time, should not be placed with mother, and had been in
the temporary custody of SCJFS for twelve or more months in a consecutive twenty-two-
month period.
{¶ 27} Mother filed an appeal and the matter is now before this court for
consideration. She raises two assignments of error for our consideration as follow:
I Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 8
{¶ 28} "THE TRIAL COURT'S JUDGMENT THAT J.G. AND L.G. CANNOT BE
PLACED WITH APPELLANT WITHIN A REASONABLE PERIOD OF TIME WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II
{¶ 29} "THE TRIAL COURT'S JUDGMENT THAT THE BEST INTERESTS OF
THE MINOR CHILDREN WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE."
{¶ 30} We address Mother's assignments of error together. In her first assignment
of error, Mother argues the trial court's finding that the children could not be placed with
her within a reasonable period was against the manifest weight and sufficiency of the
evidence. Within the same assignment of error, Mother also argues the trial court erred
in finding SCJFS made diligent efforts to prevent removal of the children. In her second
assignment of error, Mother argues the trial court's finding that an award of permanent
custody to SCJFS is in the children's best interest is against the manifest weight and
sufficiency of the evidence. We disagree.
{¶ 31} 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 No. CA-5758, 1982 WL 2911 (February 10, 1982). 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, 54 Ohio St.2d 279, 376 N.E.2d 578 Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 9
(1978). On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541, 1997-Ohio-52; Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d
517, 2012-Ohio-2179. In weighing the evidence, however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley at ¶ 21
Permanent Custody
{¶ 32} R.C. 2151.414(B)(1) states permanent custody may be granted to a public
or private agency if the trial court determines by clear and convincing evidence at a
hearing held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the
child and 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. Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 10
(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* *
*
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three
separate occasions by any court in this state or another state.
{¶ 33} Therefore, R.C. 2151.414(B) provides a two-pronged analysis the trial court
is required to apply when ruling on a motion for permanent custody. In practice, the trial
court will 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.
{¶ 34} R.C. 2151.414(D) governs “best interests” and states the following:
(D) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of division
(A)(4) or (5) of section 2151.353 or division (C) of section 2151.415
of the Revised Code, the court shall 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 caregivers and out-of-home Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 11
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, 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 ending on or
after March 18, 1999;
(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;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶ 35} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985).
“Where the degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” Cross at 477. Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 12
{¶ 36} Here, R.C. 2151.414(B)(1)(d) applies as the children had been in the
temporary custody of SCJFS in excess of twelve or more months of the consecutive
twenty-two month period and mother does not dispute this fact. This court has adopted
the position that proof of temporary custody with an agency for twelve or more months of
a consecutive twenty-two-month period alone is sufficient to award permanent custody.
In the Matter of A.S., V.S., and Z.S., 5th Dist. Delaware No. 13 CAF 050040, 2013-Ohio-
4018. Therefore, a finding that grounds existed for permanent custody cannot be against
the manifest weight of the evidence.
{¶ 37} Even so, mother faults SCJFS for failing to make reasonable efforts by
extending case plan services for an additional six months. 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.
{¶ 38} But R.C. 2151.419 is generally not applicable to permanent custody
proceedings. In In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, 2007-
Ohio-1104 at paragraph 41, the Supreme Court of Ohio stated:
By its terms, R.C. 2151.419 applies only at hearings held pursuant
to R.C. 2151.28, 2151.31(E), 2151.314, 2151.33, or 2151.353. See
R.C. 2151.419(A)(1). These sections involve adjudicatory,
emergency, detention, and temporary-disposition hearings, and Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 13
dispositional hearings for abused, neglected, or dependent children,
all of which occur prior to a decision transferring permanent custody
to the state. The statute makes no reference to a hearing on a motion
for permanent custody. Therefore, “[b]y its plain terms, the statute
does not apply to motions for permanent custody brought pursuant
to R.C. 2151.413, or to hearings held on such motions pursuant to
R.C. 2151.414.” In re A.C., supra, 2004-Ohio-5531, 2004 WL
2340127, ¶ 30.
{¶ 39} We nonetheless find SCJFS did make reasonable efforts.
{¶ 40} SCJFS developed a comprehensive reunification plan to assist mother in
remedying the issues which caused her children to be removed from her custody. As
outlined in our statement of facts, Mother's case plan required her to engage in mental
health and substance abuse treatment, obtain sobriety, attend medical appointments and
engage in services for the children, and attend Goodwill parenting classes after obtaining
sobriety. All these services were offered to Mother yet she failed to adequately engage in
those services. Mother did complete a substance abuse evaluation and treatment, but
after completing treatment she tested positive for cocaine and alcohol. Mother was
therefore asked to submit to drug testing at least twice a week. Mother agreed, but then
did not submit to further drug screens and was terminated from Commquest. She
continued to abuse substances, testing positive for drugs as late as July 2020, and
engaged in criminal behavior while intoxicated. While Mother was provided with resources Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 14
to address her mental health issues, she resisted assistance from professionals and was
highly defensive. Mother also had no stable housing or employment.
{¶ 41} Although the trial court was not required to make a reasonable efforts
determination, based upon our review of the record, we find substantial evidence to
establish SCJFS used reasonable efforts to reunify the family, but Mother made no
significant progress toward alleviating SCJFS's core concerns for the children.
{¶ 42} So too, we find no error in the trial court's finding that the best interests of
the children would be served by granting permanent custody to SCJFS.
{¶ 43} Mother argues that she has a bond with the children and they with her and
thus severing their relationship through a grant of permanent custody is not in the
children's best interests. But as discussed above, Mother does not dispute the children
have been in the custody of SCJFS in excess of twelve months of a consecutive twenty-
two-month period. As pointed out by appellee, the record indicates Mother failed to make
progress on her case plan after 19 months. We agree. Mother's lifestyle did not change
during that time and she remains ill equipped to parent two special needs children.
{¶ 44} We therefore agree with the trial court – the benefit of permanency and
stability for the children outweigh any harm caused by severing the parental bond. We
further conclude the findings of the court are supported by clear and convincing evidence.
{¶ 45} Mother's two assignments of error are overruled. Stark County, Case No. 2020-CA-00139 & 2020-CA-00140 15
{¶ 46} The judgment of the Stark County Court of Common Pleas Juvenile Division
is affirmed.
By Wise, Earle, J.
Baldwin, P.J. and
Delaney, J. concur.
EEW/rw