In re R.O.

2021 Ohio 595

• Court: Ohio Court of Appeals
• Decided: March 3, 2021
• Docket: CT2020-0045
• Status: Published

Opinion

[Cite as In re R.O., 2021-Ohio-595.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Craig R. Baldwin, P.J. R.O.: (D.O.B.: 12/6/2018) : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. : : : Case No. CT2020-0045 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Juvenile Division, Case No. 21830212

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 3, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant father

D. MICHAEL HADDOX ANDREW E. RUSS Prosecuting Attorney Andrew Russ Law, LLC Muskingum County, Ohio P.O. Box 520 Pickerington, Ohio 43130 By: JOHN CONNER DEVER Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street., P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2020-0045 2

Baldwin, J.

{¶1} Appellant, Cory Harris, appeals the decision of the Muskingum County

Court of Common Pleas, Juvenile Division, awarding permanent custody of his son, R.O.

to the Muskingum Adult and Child Protective Services on August 10, 2020. Harris alleges

that the trial court erred by finding R.O.’s best interest was served by granting permanent

custody. Appellee is Muskingum Adult and Child Protective Services. (MACPS).

STATEMENT OF FACTS AND THE CASE

{¶2} In September 2018 the Muskingum Adult and Child Protective Services

received notice of a child born to a woman suffering from substance abuse. The child,

R.O., also tested positive for exposure to illegal substances and suffered from birth

defects. MACPS filed a motion and complaint on September 6, 2018 seeking temporary

custody of the child. The trial court issued an ex parte order granting temporary custody

of the child to MACPS on September 7, 2018.

{¶3} The trial court conducted an adjudicatory hearing on November 15, 2018

and found R.O. dependent, neglected, and abused and granted temporary custody to

MACPS. The trial court found that the parents had been served, though service upon the

father was accomplished via publication pursuant to Juv.R. 16(A) upon an unknown

father. Counsel for the mother was present, but neither parent attended the hearing.

{¶4} On April 16, 2019 a motion was filed requesting genetic testing of a putative

father, but the testing eliminated that person as a parent.

{¶5} On June 12, 2019 MACPS filed a motion for permanent custody and served

it on appellant, Cory Harris, as the father, at a Zanesville address. The record does not

disclose how Harris was identified as the father of the child. The motion for permanent Muskingum County, Case No. CT2020-0045 3

custody and supporting memorandum makes no reference to his relationship with R.O.

or any participation in the case plan.

{¶6} On August 6, 2019 a home-study for placement of the child was completed

at the residence of Lynn Harris, Corey Harris's mother, but the placement was rejected

as inappropriate due to her mental health, substance abuse and domestic violence

issues.

{¶7} Harris submitted to a DNA test in July 2019 which confirmed he was the

father of R.O. and he was added to the reunification case plan on August 9, 2019.

MACPS asked to withdraw the motion for permanent custody and to extend temporary

custody because Harris had joined the case plan, the mother was recently released from

jail and was in inpatient rehabilitation and both expressed their intent to work on

reunification.

{¶8} MACPS drafted a case plan for Harris that required that he address his

substance abuse, develop parenting skills, find stable housing, establish a stable income,

and attend R.O.'s medical appointments to learn more about his birth defect and medical

needs.

{¶9} On November 13, 2019 MACPS asked the trial court to extend temporary

custody. On December 5, 2019 MACPS filed a motion to have temporary custody granted

to Merika Boyer, a relative, with protective supervision remaining with MACPS. The

November 13th motion for extension of temporary custody to MACPS was withdrawn. On

February 5, 2019, MACPS withdrew their motion to place R.O. with Boyer when she made

no provision for placement of R.O. in her home. MACPS sought an extension of temporary

custody in lieu of placement with Boyer. Muskingum County, Case No. CT2020-0045 4

{¶10} MACPS filed a motion for permanent custody on February 26, 2020 alleging

that the parents had failed to make progress on their case plan and a hearing was

scheduled for May 20, 2020. On May 15 and 19, 2020 Harris and his counsel filed

separate requests to continue the hearing on the motion and instead extend temporary

custody. The extension was denied by the magistrate and the hearing began on May 20,

2020, but was not completed due to time constraints. The hearing was rescheduled and

completed on July 30, 2020.

{¶11} The Guardian Ad Litem supported granting permanent custody focusing on

the unresolved chemical dependency of the father and the failure of the parents to remedy

the conditions that caused R.O. to be placed outside home.

{¶12} On August 10, 2020 the Magistrate issued a decision granting permanent

custody to MACPS. The judge approved the entry on the same day. Harris did not file

any objections to the magistrate’s decision and the transcript of the hearing was not made

available for the trial court’s review. Harris file a timely appeal and submitted one

assignment of error:

{¶13} “I. THE JUVENILE COURT’S JUDGMENT GRANTING PERMANENT

COURT(SIC) COMMITMENT OF THE MINOR CHILD TO MUSKINGUM COUNTY

CHILDREN SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

IN ITS APPLICATION OF THE BEST INTEREST FACTORS AS REQUIRED BY R. C.

2151.414 (D)(1)(a) THROUGH (e).”

STANDARD OF REVIEW

{¶14} Harris contends that the trial court’s decision that the best interests of R.O.

would be served by granting permanent custody of the children to the MACPS is against Muskingum County, Case No. CT2020-0045 5

the manifest weight and sufficiency of the evidence. Harris argues that he had completed

or was making progress toward completion of the requirements of the case plan and,

therefore, termination of his parental rights was not in R.O.’s best interest.

{¶15} Although Harris may have been making some progress with services as

required by the case plan, we are compelled to note that MACPS was not required to

prove that he completely failed in achieving the goals of the case plan. This court has

upheld permanent custody findings despite evidence in the record that a parent made

partial progress on his or her case plan. In re Layne Children, 5th Dist. Stark

No. 2000CA00344, 2001 WL 246430, *3.

{¶16} As to our standard of review, generally we review the trial court’s decision

in this context for abuse of discretion. We would examine the entire record and determine

whether there is sufficient competent and credible evidence to support the judgment

rendered by the trial court. Seasons Coal Company v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1978). Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).

The trial court must resolve disputed issues of fact and weigh the testimony and credibility

of the witnesses. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990). We

would defer to the trial court's discretion because the trial court had the opportunity to

observe the witnesses and parties in weighing the credibility of the proffered testimony in

a way a reviewing court cannot.

{¶17} Harris failed to file objections to the magistrate's decision and present the

trial court with a copy of the transcript for review and those omissions alter our standard

of review. As a result of Harris's failure to file objections with the trial court, our review in

this matter is limited to a consideration of plain error. Juvenile Rule 40(D)(3)(b)(iv) states: Muskingum County, Case No. CT2020-0045 6

“Except for a claim of plain error, a party shall not assign as error on appeal the court's

adoption of any factual finding or legal conclusion, whether or not specifically designated

as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has

objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).” To constitute

plain error in a civil case, the error must be “obvious and prejudicial” and “if permitted,

would have a material adverse effect on the character and public confidence in judicial

proceedings.” Friedland v. Djukic, 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th

Dist.). Plain error analysis is limited and is to be applied with the utmost caution. State v.

Tart, 8th Dist. Cuyahoga No. 76223, 2000 WL 739518.

{¶18} In addition, this Court has held on numerous occasions that where an

appellant fails to provide a transcript of the original hearing before the magistrate for the

trial court's review, the magistrate's findings of fact are considered established. See, e.g.,

Moton v. Ford Motor Credit Co., 5th Dist. Richland No. 01 CA 74, 2002-Ohio-2857

(additional citations omitted). Matter of B.J., 5th Dist. Richland No. 18 CA 106, 2019-Ohio-

1062, ¶ 17. Our review is therefore limited to an analysis of the magistrate's decision for

plain error in the consideration of the best interests of R.O. pursuant to R.C.

2151.414(D)(1).

ANALYSIS

{¶19} Revised Code 2151.414 provides:

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, Muskingum County, Case No. CT2020-0045 7

the court shall consider all relevant factors, including, but not limited to, the

following:

(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, or 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 and, 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;

(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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child. Muskingum County, Case No. CT2020-0045 8

{¶20} The magistrate completed a detailed analysis of the facts and determined

that the best interest of the child would be served by granting permanent custody

considering the factors in R.C. 2151.414(D)(1).

{¶21} The magistrate found that R.O. had a strong bond with his foster parents as

he had been placed with them at birth and flourished in their home. While Harris had

begun to develop a relationship with R.O., he had not taken steps to understand R.O.'s

special needs. And, while Harris's ability to have unsupervised visits may have been

affected by his late entry in the case and pandemic restrictions, the magistrate held that

Harris had sufficient time to complete the requirements of the case plan, but failed to do

so. He had made some progress toward completion, but much of the progress was very

recent and lacked evidence of stability. He had been residing with his mother, whose

prior record made her home unacceptable to the extent that she was rejected as a

potential relative placement. He moved in with his new girlfriend, where he had resided

for just over one month prior to the final hearing date.

{¶22} The magistrate was also concerned with Harris's late progress regarding

his substance abuse. He had tested positive shortly before the first day of the hearing,

missed several counseling meetings and, while he was "engaged and showing some

progress" he "lacked motivation and struggled to follow through." The magistrate also

found that Harris's new paramour was only recent sober and was allegedly just released

from felony probation.

{¶23} The magistrate succinctly stated her findings regarding the best interests of

R.O. in the final sentences of that section of her decision: Muskingum County, Case No. CT2020-0045 9

Recent tests positive for THC, a scramble within the last couple

weeks to be put on a lease with a girlfriend of less than two months, and

failure to attend the child's medical appointment shows father is not ready

and cannot be ready to parent the child in a reasonable time. The Court has

permitted two extensions of temporary custody to the Agency and the child

has been in the Agency's custody since September 7, 2018.

{¶24} The findings issued by the trial court reflect consideration of all of the factors

listed in R.C. 2151.414(D)(1). We also find significant that though Harris was not part of

the case plan until August 2019, the magistrate did not find that he made any significant

effort to make progress toward the goals listed in the plan prior to the filing of the motion

for permanent custody in February 2020 but did note that, on the first day of hearing he

had not yet resolved his substance abuse or found stable housing. The lack of any

evidence of effort prior to the filing and hearing on the motion serves to buttress the

magistrate’s conclusion that Harris will not be ready to parent R.O. in a reasonable time.

{¶25} Under our present limited analysis, we are not persuaded that the grant of

permanent custody of R.O. recommended by the magistrate and subsequently approved

by the trial court, equates to plain error.

{¶26} Even if we consider the transcript of the hearing independently of the

magistrate's decision in the interest of justice and in consideration of the impact our

decision will have on the lives of the persons involved, our decision would remain

unchanged. Our review would be limited to determining whether the trial court abused its

discretion and we have held that "[t]he discretion which the juvenile court enjoys in

determining whether an order of permanent custody is in the best interest of a child should Muskingum County, Case No. CT2020-0045 10

be accorded 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 re Mauzy

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, quoting In re Awkal

(1994), 95 Ohio App.3d 309, 316, 642 N.E.2d 424. Our review of the evidence presented

at the hearing would lead us to conclude that the decision of the trial court was supported

by competent, credible evidence and that the trial court did not abuse its discretion when

analyzing the best interest of R.O.

{¶27} The appellant's assignment of error is denied and the decision of the

Muskingum County Court of Common Pleas is affirmed.

By: Baldwin, P.J.

Hoffman, J. and

Delaney, J. concur.