[Cite as In re S.D., 2014-Ohio-5124.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: S.D., JUDGES: Hon. William B. Hoffman, P.J. A MINOR CHILD Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
Case No. 2014CA00119
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2011JCV00433
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 17, 2014
APPEARANCES:
For Appellee For Appellant
LISA LOUY DAVID L. SMITH Stark County Department of Jobs 245 33rd St., NW and Family Services Canton, Ohio 44709 221 Third St. SE Canton, Ohio 44702 Stark County, Case No. 2014CA00119 2
Hoffman, P.J.
{¶1} Father-appellant Mailaun Diamond (“Father”) appeals the May 28, 2014
Judgment Entry and the May 28, 2014 Findings of Fact and Conclusions of Law entered
by the Stark County Court of Common Pleas, Family Court Division, which terminated
his parental rights, privileges and responsibilities with respect to his minor daughter.
Appellee is Stark County Department of Job and Family Services (“SCDJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Father is the biological father of S.D. (dob 2/10/2008). He is a resident of
the state of Alabama. S.D. has significant medical issues. On March 28, 2011,
SCDJFS filed a Complaint, alleging S.D. was a neglected and dependent child, and
seeking temporary custody or, in the alternative, protective supervision, of the child.
Following a shelter care hearing on March 29, 2011, the trial court ordered S.D. placed
in the emergency temporary custody of SCDJFS.
{¶3} The trial court scheduled a pre-trial on April 20, 2011. Service had not
been perfected on Father. The trial court appointed Mary Lou Sekula as guardian ad
litem for S.D. Service on Father was subsequently perfected by certified mail. The trial
court conducted an adjudicatory hearing on June 16, 2011. Shari Gould (“Mother”)
stipulated to a finding of neglect. Father did not appear at the hearing. The trial court
heard evidence as to Father’s ability to care for S.D. and his involvement in the child’s
life. The trial court found S.D. to be neglected, continued temporary custody with
SCDJFS, and approved and adopted the case plan. Stark County, Case No. 2014CA00119 3
{¶4} Regular review hearings were held throughout the case. Mother agreed to
two extensions. Father appeared for the first time at a hearing on September 27, 2012.
He stipulated to an extension. Sometime during the course of the proceedings, the trial
court appointed Attorney Dean Grase as guardian ad litem for Father.
{¶5} On February 26, 2013, SCDJFS filed a motion for planned permanent
living arrangement. The trial court scheduled a hearing on the PPLA motion for March
22, 2013. Father and Mother appeared at the hearing and both stipulated to the
disposition of PPLA.
{¶6} On January 23, 2014, SCDJFS filed a motion for permanent custody. The
hearing was initially scheduled for March 18, 2014, but service on Father was
incomplete. The trial court rescheduled the matter to May 20, 2014. Mother did not
appear. Father appeared and stipulated to permanent custody. Father executed a
written stipulation form. Thereafter, the trial court addressed Father directly. The trial
court accepted Father’s stipulation and proceeded to the best interest portion of the
hearing.
{¶7} Via Judgment Entry filed May 28, 2014, the trial court terminated Father’s
parental rights, privileges and responsibilities with respect to S.D.
{¶8} It is from this judgment entry Father appeals, assigning as error:
{¶9} "I. THE RECORD DOES NOT REFLECT THAT APPELLANT
VOLUNTARILY AND KNOWINGLY STIPULATED TO A FINDING OF PERMANENT
CUSTODY AS REQUIRED PURSUANT TO JUVENILE RULE 29(D), THEREBY
VIOLATING APPELLANT'S DUE PROCESS RIGHTS." Stark County, Case No. 2014CA00119 4
{¶10} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
I
{¶11} In his sole assignment of error, Father contends the trial court violated his
right to due process by failing to determine whether his stipulation was voluntarily and
knowingly made. Specifically, Appellant argues:
In this case, the trial court addressed Appellant personally by [SIC]
failed to determine whether Appellant understood the nature of the
allegations against him and whether [A]ppellant was aware of the
consequences of his admission. Similarly, the trial court failed to advise
Appellant that by entering an admission he was waiving his rights to
challenge witnesses and evidence against him, to introduce evidence at
the adjudicatory hearing and to remain silent should he so choose. In
short, the record does not reflect substantial compliance with Juv. R.
29(D). Brief of Appellant at 3-4, unpaginated.
{¶12} Juv. R. 29(D) provides:
The court may refuse to accept an admission and shall not accept
an admission without addressing the party personally and determining
both of the following:
(1) The party is making the admission voluntarily with
understanding of the nature of the allegations and the consequences of
the admission; Stark County, Case No. 2014CA00119 5
(2) The party understands that by entering an admission the party
is waiving the right to challenge the witnesses and evidence against the
party, to remain silent, and to introduce evidence at the adjudicatory
The court may hear testimony, review documents, or make further
inquiry, as it considers appropriate, or it may proceed directly to the action
required by division (F) of this rule.
{¶13} At the May 20, 2014 hearing, the trial court addressed Appellant as
follows:
THE COURT: Okay, Mailaun, I need to speak with you directly
about this so that I’m convinced. You’ve talked with your attorney, you’ve
talked with your Guardian, they are convinced that you understand the
consequences of this and that you are doing this of your own free will. I
need to satisfy myself of those same things, so I’m going to be asking you
a lot of the same questions that they already talked with you about, do you
understand that?
FATHER: Yes, sir.
THE COURT: Okay. You understand that this is a Permanent
Custody case, which means that your rights, to how do you pronounce her
name?
FATHER: [S.D.]
THE COURT: [S.D.], okay, that your parental rights would be
terminated and you would become a legal stranger to her. She could be Stark County, Case No. 2014CA00119 6
adopted by another family. You would not have any binding right to direct
that adoption. You could make suggestions to the Department, they may
or may not take those suggestions, but you would not be able to control
who she was adopted by. Do you understand that?
THE COURT: Okay. You do not have to stipulate or agree to this.
You do have the right to go forward and have a trial and that’s what we’re
here for today. If we went forward, the Department would present
testimony, witnesses would sit on the witness stand, testify about the child
and what her best interests are and what her status is. You would have
the right to ask those witnesses questions and Miss Murray, your attorney,
would do that for you. She could also help you get people to sit on the
witness stand and testify for you, testify about your side of things, you
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re S.D., 2014-Ohio-5124.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: S.D., JUDGES: Hon. William B. Hoffman, P.J. A MINOR CHILD Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
Case No. 2014CA00119
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2011JCV00433
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 17, 2014
APPEARANCES:
For Appellee For Appellant
LISA LOUY DAVID L. SMITH Stark County Department of Jobs 245 33rd St., NW and Family Services Canton, Ohio 44709 221 Third St. SE Canton, Ohio 44702 Stark County, Case No. 2014CA00119 2
Hoffman, P.J.
{¶1} Father-appellant Mailaun Diamond (“Father”) appeals the May 28, 2014
Judgment Entry and the May 28, 2014 Findings of Fact and Conclusions of Law entered
by the Stark County Court of Common Pleas, Family Court Division, which terminated
his parental rights, privileges and responsibilities with respect to his minor daughter.
Appellee is Stark County Department of Job and Family Services (“SCDJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Father is the biological father of S.D. (dob 2/10/2008). He is a resident of
the state of Alabama. S.D. has significant medical issues. On March 28, 2011,
SCDJFS filed a Complaint, alleging S.D. was a neglected and dependent child, and
seeking temporary custody or, in the alternative, protective supervision, of the child.
Following a shelter care hearing on March 29, 2011, the trial court ordered S.D. placed
in the emergency temporary custody of SCDJFS.
{¶3} The trial court scheduled a pre-trial on April 20, 2011. Service had not
been perfected on Father. The trial court appointed Mary Lou Sekula as guardian ad
litem for S.D. Service on Father was subsequently perfected by certified mail. The trial
court conducted an adjudicatory hearing on June 16, 2011. Shari Gould (“Mother”)
stipulated to a finding of neglect. Father did not appear at the hearing. The trial court
heard evidence as to Father’s ability to care for S.D. and his involvement in the child’s
life. The trial court found S.D. to be neglected, continued temporary custody with
SCDJFS, and approved and adopted the case plan. Stark County, Case No. 2014CA00119 3
{¶4} Regular review hearings were held throughout the case. Mother agreed to
two extensions. Father appeared for the first time at a hearing on September 27, 2012.
He stipulated to an extension. Sometime during the course of the proceedings, the trial
court appointed Attorney Dean Grase as guardian ad litem for Father.
{¶5} On February 26, 2013, SCDJFS filed a motion for planned permanent
living arrangement. The trial court scheduled a hearing on the PPLA motion for March
22, 2013. Father and Mother appeared at the hearing and both stipulated to the
disposition of PPLA.
{¶6} On January 23, 2014, SCDJFS filed a motion for permanent custody. The
hearing was initially scheduled for March 18, 2014, but service on Father was
incomplete. The trial court rescheduled the matter to May 20, 2014. Mother did not
appear. Father appeared and stipulated to permanent custody. Father executed a
written stipulation form. Thereafter, the trial court addressed Father directly. The trial
court accepted Father’s stipulation and proceeded to the best interest portion of the
hearing.
{¶7} Via Judgment Entry filed May 28, 2014, the trial court terminated Father’s
parental rights, privileges and responsibilities with respect to S.D.
{¶8} It is from this judgment entry Father appeals, assigning as error:
{¶9} "I. THE RECORD DOES NOT REFLECT THAT APPELLANT
VOLUNTARILY AND KNOWINGLY STIPULATED TO A FINDING OF PERMANENT
CUSTODY AS REQUIRED PURSUANT TO JUVENILE RULE 29(D), THEREBY
VIOLATING APPELLANT'S DUE PROCESS RIGHTS." Stark County, Case No. 2014CA00119 4
{¶10} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
I
{¶11} In his sole assignment of error, Father contends the trial court violated his
right to due process by failing to determine whether his stipulation was voluntarily and
knowingly made. Specifically, Appellant argues:
In this case, the trial court addressed Appellant personally by [SIC]
failed to determine whether Appellant understood the nature of the
allegations against him and whether [A]ppellant was aware of the
consequences of his admission. Similarly, the trial court failed to advise
Appellant that by entering an admission he was waiving his rights to
challenge witnesses and evidence against him, to introduce evidence at
the adjudicatory hearing and to remain silent should he so choose. In
short, the record does not reflect substantial compliance with Juv. R.
29(D). Brief of Appellant at 3-4, unpaginated.
{¶12} Juv. R. 29(D) provides:
The court may refuse to accept an admission and shall not accept
an admission without addressing the party personally and determining
both of the following:
(1) The party is making the admission voluntarily with
understanding of the nature of the allegations and the consequences of
the admission; Stark County, Case No. 2014CA00119 5
(2) The party understands that by entering an admission the party
is waiving the right to challenge the witnesses and evidence against the
party, to remain silent, and to introduce evidence at the adjudicatory
The court may hear testimony, review documents, or make further
inquiry, as it considers appropriate, or it may proceed directly to the action
required by division (F) of this rule.
{¶13} At the May 20, 2014 hearing, the trial court addressed Appellant as
follows:
THE COURT: Okay, Mailaun, I need to speak with you directly
about this so that I’m convinced. You’ve talked with your attorney, you’ve
talked with your Guardian, they are convinced that you understand the
consequences of this and that you are doing this of your own free will. I
need to satisfy myself of those same things, so I’m going to be asking you
a lot of the same questions that they already talked with you about, do you
understand that?
FATHER: Yes, sir.
THE COURT: Okay. You understand that this is a Permanent
Custody case, which means that your rights, to how do you pronounce her
name?
FATHER: [S.D.]
THE COURT: [S.D.], okay, that your parental rights would be
terminated and you would become a legal stranger to her. She could be Stark County, Case No. 2014CA00119 6
adopted by another family. You would not have any binding right to direct
that adoption. You could make suggestions to the Department, they may
or may not take those suggestions, but you would not be able to control
who she was adopted by. Do you understand that?
THE COURT: Okay. You do not have to stipulate or agree to this.
You do have the right to go forward and have a trial and that’s what we’re
here for today. If we went forward, the Department would present
testimony, witnesses would sit on the witness stand, testify about the child
and what her best interests are and what her status is. You would have
the right to ask those witnesses questions and Miss Murray, your attorney,
would do that for you. She could also help you get people to sit on the
witness stand and testify for you, testify about your side of things, you
could get up there and testify if you wished to do that yourself. At the end
of that I would have to be sure by clear and convincing evidence, which is
a lower standard than a criminal case, it’s not beyond a reasonable doubt,
but it’s higher than a normal civil case. It’s a high standard of proof and I
would have to be sure by clear and convincing evidence of the facts of the
case, and that they met the facts that were in the Complaint and that it
was in [S.D.’s] best interest to have Permanent Custody granted, so we
could go through that trial today and you have the right to do that if you
wish to. Now if you stipulate and I accept your stipulation, we will not have
that trial. Do you understand that? Stark County, Case No. 2014CA00119 7
THE COURT: Okay, any questions about that for me or for Mr.
Grase or Miss Murray?
(discussion at counsel table)
FATHER: Oh, okay, yes, sir.
THE COURT: Okay, did he answer your question?
FATHER: Uh-hum.
THE COURT: Okay. Now if we went through the trial , there are, it
wouldn’t necessarily be certain that Permanent Custody would be granted.
There are a number of things that the Court can do. She is already in
Planned Permanent Living Arrangement or what we used to call Long
Term Foster Care, she could be continued in that; she could potentially be
placed with a relative; if your case plan work has been completed, she
could potentially be returned to you; we could grant some additional time,
keep her in PPLA so that you could work a case plan; or it may be that I
would determine that she should be in Permanent Custody of the Agency,
so if we run the trial there are a number of options that the Court can do at
the end of the trial, it wouldn’t necessarily be Permanent Custody. If you
stipulate it almost certainly will be Permanent Custody. Do you
FATHER: Okay.
THE COURT: Did Mr. Grase answer your question? Stark County, Case No. 2014CA00119 8
THE COURT: Okay. Now did anyone threaten you with anything
or say something bad would happen if you did not agree to this today?
FATHER: No, sir.
THE COURT: Did anyone promise you something, say something
good would happen if you did agree to this today?
THE COURT: So you are doing this of your own free will and you
think this is the best thing do under the circumstances?
Transcript of May 20, 2014 Proceedings at 4-7.
{¶14} We find the trial court substantially complied with Juv. R. 29(D). We
further find the record supports a finding Appellant’s stipulation to the grant of
permanent custody was voluntarily and knowingly made.
{¶15} Appellant’s sole assignment of error is overruled. Stark County, Case No. 2014CA00119 9
{¶16} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur