In re L.G.

2021 Ohio 744

Opinion

[Cite as In re L.G., 2021-Ohio-744.]

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-00141 2020-CA-00142 : : 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 - Father For Appellee

BERNARD L. HUNT BRANDON J. WALTENBAUGH 2395 McGinty Road, NW Stark County JFS North Canton, OH 44720 402 2nd St SE Canton, OH 44702 Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 2

Wise, Earle, J.

{¶ 1} Appellant, L.G., Jr., father of L.G. and J.G. (Father) 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 Father and ordered

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. At the time the

complaints were filed, Father was incarcerated and the children were living with mother.

{¶ 4} An emergency shelter care hearing was held on December 26, 2018.

Mother did not appear. After hearing testimony, 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.

{¶ 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 Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 3

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 aggressive 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, 2020 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} 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

preclude a filing for permanent custody.

{¶ 9} On October 17, 2019, SCJFS filed a motion for permanent custody. The

matter was set for evidence on January 28, 2020.

{¶ 10} Also in October, Father was released from prison and into a halfway house. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 4

{¶ 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.

{¶ 12} Father was released from the halfway house at the end of 2019. On January

22, 2020, he filed a motion to change legal custody of the children to himself. SCJFS case

worker Kimberly Gable met with father, brought him into the case plan and asked about

relative placements for the children. Father was to complete a drug assessment at

CommQuest and a parenting evaluation at Lighthouse. On January 23, 2020, Father filed

a motion to extend temporary custody.

{¶ 13} Gable was able to view housing where Father proposed the children would

live if legal custody was transferred to him on only one occasion. Thereafter, neither

Father nor his girlfriend would let Gable in the house.

{¶ 14} Father completed his CommQuest assessment and no additional services

were recommended. As for the parenting assessment, Father was diagnosed with anti-

social traits and unspecified substance abuse disorder. Counseling was recommended

with Melymbrosia, but Father failed to comply. He also failed to comply with Gabel's

requests for random drug screens, and could not be referred to Goodwill Parenting

without showing ongoing sobriety.

{¶ 15} On April 21, 2020, Father was charged with two counts of felonious assault

each with attendant firearm specifications, one count of discharging a firearm on or near

prohibited premises, also with a firearm specification, and one count of having weapons

under disability. He was arrested on these charges on May 5, 2020. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 5

{¶ 16} On April 17, 2020, the trial court continued all motions hearings and trial in

this 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.

{¶ 17} On May 15, 2020, because the matter was approaching its second filing

deadline, SCJFS filed a second motion for permanent custody, this one alleging the

children could not be placed with either parent within a reasonable time and that the

children had been in the temporary custody of SCJFS for 12 or more months in a

consecutive 22-month period.

{¶ 18} 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 while Father

had completed some directives, he had not complied with Melymbrosia services to

address anger management, conflict resolution without threats of violence, nor how his

lifestyle choices effect and impact his children's lives. Additionally Father was not

available for unannounced home visits and had not responded to requests left with his

girlfriend to contact Minor or SCJFS regarding home visits.

{¶ 19} On July 22, 2020, the trial court heard testimony on the motion for

permanent custody as well as Father's motions.

{¶ 20} Commquest Administrative Supervisor Kim Fraley testified Father

completed a substance abuse assessment and was not recommended for treatment. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 6

{¶ 21} Father's parenting evaluation was conducted by Dr. Aimee Thomas.

Thomas testified Father minimized or did not have insight into his children's identified

needs and challenges. He did not seem to understand his children's needs were

significant. Additionally, Father's criminal history and current criminal involvement

presented concerns for Thomas because if Father is incarcerated he cannot be present

to offer support for Mother or be present to care for the children. Thomas also had

concerns regarding Father's "thinking errors" regarding conflict resolution. Thomas

recommended Father participate in Goodwill Parenting classes, intensive individual

counseling, and substance abuse treatment services. She additionally recommended

Father demonstrate the capacity to maintain gainful employment in order to support his

family financially.

{¶ 22} Gabel testified she met with Father upon his release from the halfway house

at the end of 2019, explained her role and provided him with the case plan. She also

asked for names for possible placement with relatives. He was directed to complete a

drug assessment at CommQuest and a parenting evaluation at Lighthouse.

{¶ 23} Gabel stated Father completed his CommQuest evaluation and provided a

clean drug screen at that time. CommQuest did not recommend additional services.

Lighthouse recommended Father engage in mental health services at Melymbrosia,

continue sobriety, and a verifiable source of income. Father also needed to obtain

appropriate housing.

{¶ 24} While Father did not provide Gable documentation of employment, he

testified he had been seasonally employed at Sterilite and then worked a short period at

Ziegler Tire before being laid off due to the COVID-19 pandemic. As for housing, Father Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 7

and his girlfriend D.D. had not let Gable back in to the home since Father was released

from the halfway house. Thus Gable was unable to determine if the housing remained

appropriate. Additionally, Gabe stated while Father loves his children and verbally

expresses commitment to them, he failed to substantially comply with his case plan

services and failed to demonstrate a change in his conduct.

{¶ 25} Father testified on his own behalf and stated he was in prison when this

case began. He testified he was unemployed and lives with his girlfriend D.D. in her home

with her seven year-old daughter. He admitted he has been incarcerated three or four

times and has current pending felony charges. Father testified he completed some

programming while in the halfway house and met with Gable to receive his case plan with

SCJFS. He stated he had not missed any visits with his children and would be committed

to getting the children to their various appointments with doctors and therapists. Father

did not believe permanent custody was in his children's best interests.

{¶ 26} D.D. testified she had known Father for more than 30 years and he currently

lives with her and her daughter. She stated she completed the home study and would like

the children to be placed in her home and would be willing to take custody of the children.1

D.D. testified she was aware of Father's criminal history but believed he had changed.

{¶ 27} 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

1 D.D. did not file a motion for custody. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 8

IEP and is improving at school. She stated L.G. is bonded with his foster family but still

loves his parents.

{¶ 28} Gabel testified J.G.'s 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.

{¶ 29} 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.

{¶ 30} Minor, the children's GAL testified that although the children are bonded

with Father and interacted well with them during visits, she had grave concerns about

putting the children in a home where guns were present, and Father had not shown he

was sober and has new pending criminal charges. Minor opined granting permanent

custody to SCJFS was in the children's best interests.

{¶ 31} After taking the matter under advisement, the trial court issued findings of

fact denying Father's motions, 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 Father within a reasonable time and should not be

placed with Father. The court found by virtue of his incarceration Father had failed to visit

the children for a period in excess of 90 days and that the children had been in the

temporary custody of SCJFS for twelve or more months in a consecutive twenty-two-

month period. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 9

{¶ 32} Father filed an appeal and the matter is now before this court for

consideration. He raises two assignments of error for our consideration as follow:

I

{¶ 33} "THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY

TO SCJFS. THIS DENIED THE APPELLANT'S MOTION FOR A CHANGE OF LEGAL

CUSTODY AND MOTION TO EXTEND TEMPORARY CUSTODY, FILED IN THIS

CASE."

II

{¶ 34} "THE TRIAL COURT'S JUDGMENT THAT THE MINOR CHILDREN

SHOULD NOT BE PLACED WITH THE APPELLANT FATHER AT THE TIME OF THE

TRIAL OR WITHIN A REASONABLE TIME, WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE."

{¶ 35} We address Father's assignments of error together as they are interrelated.

In his first assignment of error, Father argues the trial court erred in denying his motions

for legal custody and for an extension of temporary custody. Father appears to argue that

since he was incarcerated during the pendency of this matter, he should have been

granted additional time to complete his case objectives following his release. In his

second assignment of error, Father argues the trial court's finding that the children could

not be placed with Father and should not be placed with Father is against the manifest

weight and sufficiency of the evidence. We disagree.

{¶ 36} 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. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 10

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

(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

{¶ 37} 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. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 11

(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.

(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.

{¶ 38} 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.

{¶ 39} 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 Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 12

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

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.

{¶ 40} 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 Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 13

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.

The Instant Matter

{¶ 41} 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 Father 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.

{¶ 42} Even if that were not true, while Father appears to fault the trial court for

failing to grant him additional time to work his case plan due to his incarceration, we note

Father failed to comply with the directives of his case plan while he still had time to do so.

He failed to comply with random drug screens, failed to engage in treatment with

Melymbrosia, and incurred new felony charges four months after being released from a

halfway house. We therefore find no error in the trial court's decision denying Father's

motion to extend time or his motion to transfer custody.

{¶ 43} We further conclude the findings of the court granting permanent custody

to SCJFS are supported by clear and convincing evidence.

{¶ 44} Father's two assignments of error are overruled. Stark County, Case No. 2020-CA-00141 & 2020-CA-00142 14

{¶ 45} 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