[Cite as In re M.A., 2024-Ohio-5383.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. Patricia A. Delaney, P.J. M.A. (DOB: 06-27-2016) : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. A.A. (DOB: 07-25-2017) : : T.A. (DOB: 07-21-2018) : Case No. 24CA000023 : 24CA000024 : 24CA000025 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Juvenile Division, Case No. 22JC00312
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 13, 2024
APPEARANCES:
For Plaintiff-Appellant Father For Defendant-Appellee Guernsey Co Children Services RICHARD D. HIXON 3808 James Court, Suite 2 MELISSA WILSON Zanesville, Ohio 43701 274 Highland Avenue Cambridge, Ohio 43725
For Plaintiff-Appellant Mother Guardian Ad Litem
LYNDSAY SULLIVAN RACHEL DUNFEE PO Box 47 217 N Broadway Bridgeport, Ohio 43912 New Philadelphia, Ohio 44663 Guernsey County, Case No. 24CA000023,0024,0025 2
Baldwin, J.
{¶1} The appellant appeals the decision of the Guernsey County Court of
Common Pleas, Juvenile Division, granting permanent custody of the children to the
appellee, Guernsey County Children Services (“the agency”). The relevant facts are as
follows.
STATEMENT OF THE FACTS AND THE CASE
{¶2} M.A. was born on June 27, 2016, A.A. was born on July 25, 2017, and T.A.
was born on July 21, 2018 (“the minor children”). The appellant is the biological father of
the minor children. T.T. is their biological mother (“the mother”).
{¶3} On October 31, 2022, the agency filed a complaint alleging the dependency
of the minor children under both R.C. §2151.04(B) and (C). The agency filed a Motion for
Emergency Temporary Custody along with the complaint. At the time, the minor children
were placed with A.D., a kinship placement pursuant to a safety plan. The trial court
granted the motion.
{¶4} On January 17, 2023, the combined adjudicatory and dispositional hearing
was held, as well as a hearing on A.D.’s Motion for Legal Custody. Upon agreement of
the mother, the trial court found the minor children to be dependent. The trial court denied
A.D.’s Motion for Legal Custody and granted temporary custody to the agency.
{¶5} On January 22, 2024, the agency filed a Motion to Modify Dispositional
Orders to that of Permanent Custody.
{¶6} On July 9, 2024, the trial court held a permanent custody hearing.
{¶7} At the hearing, Mattea Shockling testified that she is a caseworker at Cedar
Ridge Behavioral Health Solutions. She came in contact with the mother when the mother Guernsey County, Case No. 24CA000023,0024,0025 3
completed an assessment on July 31, 2023. Cedar Ridge recommended outpatient
therapy, case management, and medication management for the mother. However, the
mother did not comply with those recommendations. Her last visit with her children was
on January 22, 2024. Her last case management appointment was on August 21, 2023.
Her last therapy session was on September 25, 2023. She never participated in services
for medication management.
{¶8} Next, Cassandra Mack testified that she is an ongoing caseworker with the
agency. She is the caseworker for the appellant, the mother, M.A., A.A., and T.A. The
family has been involved with the agency since August 1, 2022. On that day, the mother
and her children were evicted from a hotel they were staying at and had nowhere to go.
The minor children were placed with A.D. as part of an out-of-home safety plan. A.D. is a
relative of the appellant. The safety plan ended on October 28, 2022, when the agency
received a report alleging A.D. physically abused the children. Since that day, the minor
children have been in the agency’s continuous custody.
{¶9} Ms. Mack continued that the mother was the only adult on the case plan.
The mother was to sign all releases of information for the agency to ensure compliance
and monitor her progress. She was not compliant with this case plan objective as she did
not remain in contact with Ms. Mack. The mother was to have a mental health assessment
and follow all recommendations. The mother had an assessment at Cedar Ridge. She
was diagnosed with adjustment disorder, generalized anxiety disorder, and cannabis use
disorder. The mother was to complete and engage in a parenting class to demonstrate
she can parent safely. She did not complete a parenting class. Guernsey County, Case No. 24CA000023,0024,0025 4
{¶10} Next, the mother was to obtain and maintain a safe, stable, and sanitary
house. She had stable housing at one time but could not maintain it due to the
nonpayment of rent. She has stable housing now in Bethesda. However, mold is growing
on the ceilings, and the floors seem to be unstable. She lives there with her husband,
who works. He has a criminal record and has spent time in prison. He does not have a
relationship with the children. The mother has not seen her children since January of
2024. The mother was also to complete random drug screens. She only completed four
of the drug screens, and she tested positive for THC each time. The mother has had very
little contact with the minor children, has not made substantial progress on her case plan,
and has had criminal history during the pendency of this case. After having contact with
the mother, the minor children’s behavior deteriorates. A.A. and T.A. begin acting like
babies, and M.A. will not listen and wants to run away.
{¶11} Ms. Mack also testified that the appellant was not part of the case plan as
he was incarcerated for a period during the pendency of this case. He has not asked to
be put on a case plan or visited with the minor children. The agency does not support the
appellant receiving custody as the minor children have had little contact with him, and
their only memories of the appellant are bad ones. The agency also does not support
A.D. obtaining custody of the minor children due to alleged physical abuse by A.D. There
are no kinship options available at this time.
{¶12} Ms. Mack said the minor children are doing well in foster care. M.A. is now
able to read, where he could not before, and he is able to attend sporting events. A.A.
and T.A. enjoy going to the pool, going camping, and going to the movies. They are doing Guernsey County, Case No. 24CA000023,0024,0025 5
well academically in foster care; compared to before they were doing poorly. She does
not believe reunification is possible.
{¶13} Next, A.D. testified that she had custody of the minor children when the
case opened. They lived with A.D. for two months. The minor children were removed from
the home because of a report the children were being abused and neglected.
{¶14} Rachel Dunfee then testified she is the guardian ad litem in this case. She
filed a report in this matter. Ms. Dunfee believes it is in the minor children’s best interest
for the trial court to grant the agency permanent custody. They are doing well in their
foster placements, have bonded with the foster families, have had no visitation with the
mother since January of 2024, and have no meaningful bond with their parents. Ms.
Dunfee believes that the appellant is not stable enough for the minor children to be
reunified with him.
{¶15} Finally, Cheryl Gadd testified that she is a court-appointed special advocate
for this case. Ms. Gadd also believes it is in the minor children’s best interest for the trial
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[Cite as In re M.A., 2024-Ohio-5383.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. Patricia A. Delaney, P.J. M.A. (DOB: 06-27-2016) : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. A.A. (DOB: 07-25-2017) : : T.A. (DOB: 07-21-2018) : Case No. 24CA000023 : 24CA000024 : 24CA000025 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Juvenile Division, Case No. 22JC00312
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 13, 2024
APPEARANCES:
For Plaintiff-Appellant Father For Defendant-Appellee Guernsey Co Children Services RICHARD D. HIXON 3808 James Court, Suite 2 MELISSA WILSON Zanesville, Ohio 43701 274 Highland Avenue Cambridge, Ohio 43725
For Plaintiff-Appellant Mother Guardian Ad Litem
LYNDSAY SULLIVAN RACHEL DUNFEE PO Box 47 217 N Broadway Bridgeport, Ohio 43912 New Philadelphia, Ohio 44663 Guernsey County, Case No. 24CA000023,0024,0025 2
Baldwin, J.
{¶1} The appellant appeals the decision of the Guernsey County Court of
Common Pleas, Juvenile Division, granting permanent custody of the children to the
appellee, Guernsey County Children Services (“the agency”). The relevant facts are as
follows.
STATEMENT OF THE FACTS AND THE CASE
{¶2} M.A. was born on June 27, 2016, A.A. was born on July 25, 2017, and T.A.
was born on July 21, 2018 (“the minor children”). The appellant is the biological father of
the minor children. T.T. is their biological mother (“the mother”).
{¶3} On October 31, 2022, the agency filed a complaint alleging the dependency
of the minor children under both R.C. §2151.04(B) and (C). The agency filed a Motion for
Emergency Temporary Custody along with the complaint. At the time, the minor children
were placed with A.D., a kinship placement pursuant to a safety plan. The trial court
granted the motion.
{¶4} On January 17, 2023, the combined adjudicatory and dispositional hearing
was held, as well as a hearing on A.D.’s Motion for Legal Custody. Upon agreement of
the mother, the trial court found the minor children to be dependent. The trial court denied
A.D.’s Motion for Legal Custody and granted temporary custody to the agency.
{¶5} On January 22, 2024, the agency filed a Motion to Modify Dispositional
Orders to that of Permanent Custody.
{¶6} On July 9, 2024, the trial court held a permanent custody hearing.
{¶7} At the hearing, Mattea Shockling testified that she is a caseworker at Cedar
Ridge Behavioral Health Solutions. She came in contact with the mother when the mother Guernsey County, Case No. 24CA000023,0024,0025 3
completed an assessment on July 31, 2023. Cedar Ridge recommended outpatient
therapy, case management, and medication management for the mother. However, the
mother did not comply with those recommendations. Her last visit with her children was
on January 22, 2024. Her last case management appointment was on August 21, 2023.
Her last therapy session was on September 25, 2023. She never participated in services
for medication management.
{¶8} Next, Cassandra Mack testified that she is an ongoing caseworker with the
agency. She is the caseworker for the appellant, the mother, M.A., A.A., and T.A. The
family has been involved with the agency since August 1, 2022. On that day, the mother
and her children were evicted from a hotel they were staying at and had nowhere to go.
The minor children were placed with A.D. as part of an out-of-home safety plan. A.D. is a
relative of the appellant. The safety plan ended on October 28, 2022, when the agency
received a report alleging A.D. physically abused the children. Since that day, the minor
children have been in the agency’s continuous custody.
{¶9} Ms. Mack continued that the mother was the only adult on the case plan.
The mother was to sign all releases of information for the agency to ensure compliance
and monitor her progress. She was not compliant with this case plan objective as she did
not remain in contact with Ms. Mack. The mother was to have a mental health assessment
and follow all recommendations. The mother had an assessment at Cedar Ridge. She
was diagnosed with adjustment disorder, generalized anxiety disorder, and cannabis use
disorder. The mother was to complete and engage in a parenting class to demonstrate
she can parent safely. She did not complete a parenting class. Guernsey County, Case No. 24CA000023,0024,0025 4
{¶10} Next, the mother was to obtain and maintain a safe, stable, and sanitary
house. She had stable housing at one time but could not maintain it due to the
nonpayment of rent. She has stable housing now in Bethesda. However, mold is growing
on the ceilings, and the floors seem to be unstable. She lives there with her husband,
who works. He has a criminal record and has spent time in prison. He does not have a
relationship with the children. The mother has not seen her children since January of
2024. The mother was also to complete random drug screens. She only completed four
of the drug screens, and she tested positive for THC each time. The mother has had very
little contact with the minor children, has not made substantial progress on her case plan,
and has had criminal history during the pendency of this case. After having contact with
the mother, the minor children’s behavior deteriorates. A.A. and T.A. begin acting like
babies, and M.A. will not listen and wants to run away.
{¶11} Ms. Mack also testified that the appellant was not part of the case plan as
he was incarcerated for a period during the pendency of this case. He has not asked to
be put on a case plan or visited with the minor children. The agency does not support the
appellant receiving custody as the minor children have had little contact with him, and
their only memories of the appellant are bad ones. The agency also does not support
A.D. obtaining custody of the minor children due to alleged physical abuse by A.D. There
are no kinship options available at this time.
{¶12} Ms. Mack said the minor children are doing well in foster care. M.A. is now
able to read, where he could not before, and he is able to attend sporting events. A.A.
and T.A. enjoy going to the pool, going camping, and going to the movies. They are doing Guernsey County, Case No. 24CA000023,0024,0025 5
well academically in foster care; compared to before they were doing poorly. She does
not believe reunification is possible.
{¶13} Next, A.D. testified that she had custody of the minor children when the
case opened. They lived with A.D. for two months. The minor children were removed from
the home because of a report the children were being abused and neglected.
{¶14} Rachel Dunfee then testified she is the guardian ad litem in this case. She
filed a report in this matter. Ms. Dunfee believes it is in the minor children’s best interest
for the trial court to grant the agency permanent custody. They are doing well in their
foster placements, have bonded with the foster families, have had no visitation with the
mother since January of 2024, and have no meaningful bond with their parents. Ms.
Dunfee believes that the appellant is not stable enough for the minor children to be
reunified with him.
{¶15} Finally, Cheryl Gadd testified that she is a court-appointed special advocate
for this case. Ms. Gadd also believes it is in the minor children’s best interest for the trial
court to grant the agency permanent custody.
{¶16} The trial court granted the agency permanent custody of the minor children.
{¶17} The appellant filed a timely notice of appeal and herein raised the following
assignment of error:
{¶18} “I. THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY AND
TERMINATION OF APPELLANT’S PARENTAL RIGHTS WAS UNSUPPORTED BY
CLEAR AND CONVINCING EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.” Guernsey County, Case No. 24CA000023,0024,0025 6
I.
{¶19} In the appellant’s sole assignment of error, the appellant argues the trial
court erred in terminating the appellant’s parental rights as this was not supported by clear
and convincing evidence. We disagree.
STANDARD OF REVIEW
{¶20} A trial court’s decision to grant permanent custody of a child must be
supported by clear and convincing evidence. The Ohio Supreme Court 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.”
Cross v. Ledford, 161 Ohio St. 469 (1954); In re: Adoption of Holcomb, 18 Ohio St.3d 361
(1985).
{¶21} In reviewing whether the trial court based its decision upon clear and
convincing evidence, “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.” State
v. Schiebel, 55 Ohio St.3d 71 (1990); see also, C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St.2d 279 (1978). If the trial court’s judgment is “supported by some competent,
credible evidence going to all the essential elements of the case,” a reviewing court may
not reverse that judgment. Schiebel at 74.
{¶22} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusions of law.” Id. Issues relating to the credibility of witnesses and the Guernsey County, Case No. 24CA000023,0024,0025 7
weight to be given the evidence are primarily for the trier of fact. As the Supreme Court
of Ohio explained in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984): “[t]he
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.”
{¶23} Moreover, deferring to the trial court on matters of credibility is “crucial in a
child custody case, where there may be much evident in the parties’ demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 1997-Ohio-260;
see also, In re: Christian, 2004-Ohio-3146 (4th Dist.); In re: C.W., 2004-Ohio-2040 (2nd
Dist.).
ANALYSIS
{¶24} “The right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Murray,
52 Ohio St.3d 155, 157 (1990), citing 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., citing 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 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 (6th Dist.1991). Therefore, parents “must be afforded
every procedural and substantive protection the law allows.” Id.
{¶25} 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 Guernsey County, Case No. 24CA000023,0024,0025 8
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.
{¶26} Following the hearing, R.C. §2151.414(B)(1) 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) A 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 agencies for twelve or
more months of a consecutive twenty-two-month period if, 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, 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’s 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 Guernsey County, Case No. 24CA000023,0024,0025 9
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described
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.
{¶27} 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.
{¶28} 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.
{¶29} In the case sub judice, the appellant concedes that R.C. §2151.414(B)(1)(d)
has been met. Instead, he argues granting permanent custody to the agency was not in
the best interest of the minor children. We disagree. Guernsey County, Case No. 24CA000023,0024,0025 10
{¶30} At trial, Ms. Mack testified the mother did not complete a required parenting
class and mental health assessment and follow recommendations. The mother did not
obtain and maintain safe and stable housing until right before the permanent custody
hearing. This home had mold growing on one of the ceilings, and the floors were unstable.
She is supported financially by her husband. He has a criminal record and served prison
time. The mother did not submit to all of the drug screens and tested positive for THC on
the tests she took.
{¶31} The appellant never requested to be on the case plan and did not see the
minor children throughout the pendency of the case.
{¶32} The children were on a safety plan with A.D. from August 1, 2022, until
October 28, 2022. This safety plan ended due to allegations that A.D. physically abused
the children. The mother was supportive of the agency taking custody of the minor
children at that time.
{¶33} Ms. Gadd testified that the minor children are thriving in foster care. She
noted that she was surprised to see A.D. at the hearing. She said that she had
encountered A.D. while working on a previous case and would not recommend custody
of the minor children be given to A.D.
{¶34} The children’s guardian ad litem also testified that granting permanent
custody to the trial court was in the best interest of the minor children. They have bonded
with their foster families and are doing well in their new homes.
{¶35} The trial court’s finding that granting the agency permanent custody of the
children is in their best interest is supported by clear and convincing evidence.
{¶36} Accordingly, the appellant’s sole assignment of error is overruled. Guernsey County, Case No. 24CA000023,0024,0025 11
CONCLUSION
{¶37} Based on the foregoing, the judgment of the Guernsey County Court of
Common Pleas, Juvenile Division, is affirmed.
By: Baldwin, J.
Delaney, P.J. and
Hoffman, J. concur.