In re T.P.

2023 Ohio 3662

• Court: Ohio Court of Appeals
• Decided: October 6, 2023
• Docket: L-23-1175
• Status: Published

Opinion

[Cite as In re T.P., 2023-Ohio-3662.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re T.P. Court of Appeals No. L-23-1175

Trial Court No. JC 23294316

DECISION AND JUDGMENT

Decided: October 6, 2023

*****

Misty Goodrick and Emily K. Richter, for appellee.

Misty Wood, for appellants.

MAYLE, J.

{¶ 1} The appellants, A.D. (“mother”) and L.P. (“father”) appeal the July 7, 2023

judgment of the Lucas County Court of Common Pleas, Juvenile Division terminating

their parental rights and granting permanent custody of their child, T.P., to Lucas County

Children Services (“LCCS”), the appellee herein. We affirm. I. Background

{¶ 2} According to the complaint, LCCS received a referral that a baby girl, T.P.,

had been born by caesarean section on April 10, 2023, with “multiple dysmorphic

features.” T.P. was placed on respiratory support in the neonatal unit, at Toledo Hospital.

(Complaint at ¶ 4). It was further reported to LCCS that mother is a “carrier for multiple

genetic syndromes” and had received “minimal prenatal care.”

{¶ 3} After giving birth, Mother and T.P.’s umbilical cord tested positive for THC

and cocaine (or a metabolite of cocaine). Mother had also tested positive for THC during

two prenatal visits. Initially, mother denied using drugs and blamed the positive test

results on “smelling drugs from the other apartments in her complex.” (Id. at ¶ 4). She

later admitted to “using cocaine with a friend recently while she was pregnant.” (Id. at ¶

5).

{¶ 4} The referral source reported that mother is developmentally delayed and has

been diagnosed with schizoaffective disorder, bipolar disorder one with psychosis,

anxiety, and post-traumatic stress disorder. (Id. at ¶ 4). After LCCS became involved,

mother admitted to a caseworker that she suffers from anxiety and PTSD, but she denied

the other diagnoses. Id. at ¶ 7.

{¶ 5} LCCS alleged in the complaint that mother and father are linked to “A

Renewed Mind” for substance abuse treatment, and that mother is linked for parenting

2. and medication management. Mother and father admitted to the caseworker that “the

family home is unsafe for [T.P.] due to the substance abuse in the apartment complex.”

{¶ 6} According to the complaint, mother and father are the biological parents to

T.P.’s older siblings, all of whom were the subjects of prior dependency, neglect, or

abuse cases. Parents’ rights were terminated as to the oldest sibling, who was born in

2018 with special needs, by the Muskingum County Court of Common Pleas after parents

failed to make progress in case planning services in the areas of substance abuse, mental

health, parenting, and visitation. The Lucas County Court of Common Pleas removed a

second sibling, born in 2020, from parents and awarded legal custody to a relative. That

same court removed the third sibling, born in 2021, and awarded permanent custody to

LCCS in February of 2022. Id. at ¶ 9.

{¶ 7} During T.P.’s hospitalization, LCCS “received concerns” about the parents’

“behaviors.” Among other things, parents were not following the feeding schedule, fed

T.P. “spoiled formula,” awoke the child while sleeping, and failed to maintain her body

temperature because they did not keep her “swaddled.” Id. at ¶ 10.

{¶ 8} Three weeks after T.P.’s birth, on May 1, 2023, LCCS filed a complaint in

dependency and neglect and sought permanent custody. The complaint also sought

emergency, temporary custody over T.P., which the court granted. Thereafter, the trial

court named a court appointed special advocate (“CASA”) for T.P., as well as individual

counsel and a guardian ad litem (“GAL”) for both mother and father.

3. {¶ 9} The court held an adjudicatory hearing on June 12, 2023, and a dispositional

hearing immediately thereafter. See Juv.R. 34(A). The purpose of an adjudicatory

hearing is “to determine whether a child is * * * abused, neglected, or dependent or is

otherwise within the jurisdiction of the court.” Juv.R. 2(B). If established, a

dispositional hearing may then be held “to determine what action shall be taken

concerning a child who is within the jurisdiction of the court.” Juv.R. 2(O).

{¶ 10} According to the July 7, 2023 Judgment Entry, the trial court found that

T.P. is a “dependent child,” under R.C. 2151.03, and a “neglected child” under R.C.

2151.04. As to disposition, the court found that T.P. cannot be placed with either parent

within a reasonable time or should not be placed with either parent, and that it is in T.P.’s

best interest to grant permanent custody to LCCS. All of the court’s findings were by

clear and convincing evidence.

{¶ 11} Parents appealed and were appointed common counsel. They raise two

assignments of error for our review:

I. The trial court failed to prove by clear and convincing evidence

that the father neglected the child.

II. The trial court failed to prove by clear and convincing evidence

that the child could not be placed with either parent within a reasonable

time.

4. II. Analysis

A. Parents failed to show reversible error in the trial court’s adjudication of T.P. as a neglected child.

{¶ 12} In their first assignment of error, parents claim that the “the trial

court failed to prove * * * that father neglected [T.P.].” (Emphasis added.)

{¶ 13} Parents confuse the role of LCCS, which bore the burden of establishing

that T.P. was a “neglected child” under R.C. 2151.04, with the role of the trial court,

which was tasked with determining whether the agency satisfied its burden. See

generally In re C.T., 6th Dist. Sandusky No. S-18-005, 2018-Ohio-3823, ¶ 53. See also

In re Wall, 60 Ohio App.3d 6, 7, 572 N.E.2d 248 (9th Dist.1989) (“The burden is upon

CSB to show by clear and convincing evidence that the child is neglected.”).

{¶ 14} In any event, a trial court’s adjudication of a child as abused, neglected or

dependent must be supported by clear and convincing evidence. In re C.T., at ¶ 52, citing

R.C. 2151.35(A)(1); Juv.R. 29(E)(4). Proof by clear and convincing evidence requires

that the evidence “‘produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361,

368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118

(1954), paragraph three of the syllabus. Clear and convincing evidence is a higher degree

of proof than preponderance of the evidence, but a lower degree than beyond a

reasonable doubt. In re Alexander C., 164 Ohio App.3d 540, 2005-Ohio-6134, 843

N.E.2d 211, ¶ 37 (6th Dist.).

5. {¶ 15} When an appellate court reviews a trial court’s adjudication to determine

whether the judgment is supported by clear and convincing evidence, the reviewing court

must determine whether the trial court record contains sufficient evidence to satisfy the

requisite degree of proof. In re C.T. at ¶ 53, citing In re Alexander at ¶ 7. That is, we

examine the record to determine whether the agency sustained its burden of producing

clear and convincing evidence of dependency or neglect as defined by R.C. 2151.03 and

2151.04. Id. An appellate court will not reverse a trial court’s adjudication where

competent and credible evidence supports the findings of fact and conclusions of law. Id.

{¶ 16} In this case, parents do not challenge the adjudication of T.P. as a

dependent child nor that she was neglected by mother. Instead, their claim is limited to

the narrow argument that “most of the trial court’s findings regarding neglect are based

on the condition and actions of the mother” and that “[n]ot a single specific instance

points to neglect by father.” A plain reading of the trial court’s judgment entry undercuts

their claim.

{¶ 17} In support of its conclusion that T.P. is a “neglected child,” the court found:

Mother and Father have significant developmental and cognitive

delays, mental health issues, and substance abuse issues. Due to these

concerns, they are unable to adequately care for [T.P.] and her special

medical needs. Further, the parents’ behavior while they were with [T.P.]

in the hospital raises serious questions as to their ability to care for the

6. child. [T.P.’s] umbilical cord was positive for several illegal substances

that Mother had ingested during her pregnancy. Therefore, this Court finds

that LCCS has presented clear and convincing evidence for this Court to

find that this child is a neglected child. See J.E. at 4-5.

{¶ 18} Again, in reviewing the trial court’s decision, our role is to examine the

record to determine whether the trial court record contains sufficient evidence to satisfy

the requisite degree of proof. In re C.T. Here, we are unable to do that because parents

failed to provide a transcript of the June 12, 2023 hearing, as required by App.R. 9(B).

When portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower court’s

proceedings, and to affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199,

400 N.E.2d 384 (1980). Moreover, “[i]t is the duty of the appellant to ensure the record,

or whatever portions thereof are necessary for the determination of the appeal, are filed

with the court in which he seeks review.” In re F.C., 5th Dist. Tuscarawas Nos.

09AP010004, 09AP010005, 2009-Ohio-2402, ¶ 33 citing Rose Chevrolet, Inc. v. Adams,

36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988).

{¶ 19} In their reply, parents argue that the hearing transcript is not “necessary” to

resolve the issue(s) before us because their challenge is limited to the “language and

conclusions contained in the [trial court’s] order.” But, the trial court’s conclusions are

7. based upon the evidence that was before it, notably the testimony of witnesses who

appeared at trial and any exhibits admitted therein. Without the transcript, we are unable

to examine a critical part of the record to determine whether the trial court had before it

evidence sufficient to satisfy the requisite degree of proof. See, e.g., State v. Reed, 6th

Dist. Ottawa No. OT-19-047, 2021-Ohio-406, ¶ 10, fn. 2 (“Even if the case were not

moot, we would be compelled to affirm the trial court because Reed did not file a

transcript of the August 7, 2019 bench trial.”). Because parents failed to provide this

court with the transcript from the hearing, we must presume the regularity of the

proceedings below.

{¶ 20} Regardless, we reject parents’ argument that the trial court made no

“specific” findings as to father. As clearly set forth above, the court found that father’s

“significant developmental and cognitive delays, mental health issues, and substance

abuse issues” as well as his “behavior” caused the court to doubt his ability to care for

T.P.

{¶ 21} For all these reasons, parents’ first assignment of error is found not well-

taken.

B. Parents failed to show reversible error in the trial court’s finding that T.P. could not and should not be returned to them.

{¶ 22} In their second assignment of error, parents again misstate the role of the

trial court, (“[the trial court’s] order fails to prove * * * that [T.P.] cannot or should not

be placed with the Father.”). We interpret parents’ argument as a claim that the trial

8. court’s finding—that T.P. cannot be placed with father within a reasonable time or should

not be placed with him—was not supported by clear and convincing evidence.

{¶ 23} R.C. 2151.414 sets forth “specific findings a juvenile court must make

before granting an agency’s motion for permanent custody of a child.” In re A.M., 166

Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d 1, ¶ 18, citing In re C.F., 113 Ohio St.3d

73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. As relevant here, the court must find by

clear and convincing evidence “(1) that one or more of the conditions in R.C.

2151.414(B)(1)(a) through (e) applies and (2) that a grant of permanent custody is in the

child’s best interest. R.C. 2151.414(B)(1).” Id. Because parents do not challenge the

juvenile court’s findings as to mother or whether a grant of permanent custody to LCCS

was in T.P.’s best interest, we confine this decision to the juvenile court’s determination,

under R.C. 2151.414(B)(1)(a), i.e. that T.P. should not, and could not within a reasonable

time, be placed with father. Accord In re A.M. at ¶ 18.

{¶ 24} R.C. 2151.414(B)(1)(a) requires a finding that the child has not been

abandoned or orphaned, has not been in the custody of a public children services agency

or a private child placing agency for at least 12 months of a consecutive 22-month period,

and cannot be placed with either parent within a reasonable time or should not be placed

with either parent; subsection (b) requires a finding that the child is abandoned;

subsection (c) requires a finding that the child is orphaned and there are no relatives who

are able to take permanent custody; subsection (d) requires a finding that the child has

9. been in the temporary custody of a public children services agency or a private child

placing agency for at least 12 months of a consecutive 22-month period; and subsection

(e) requires a finding that the child or another child in the custody of the parent from

whose custody the child has been removed has been adjudicated abused, neglected, or

dependent on three separate occasions.

{¶ 25} Here, the juvenile court determined that R.C. 2151.414(B)(1)(a) applies to

the facts of this case. Therefore, the court was required to consider whether granting

permanent custody to the agency is in the child’s best interest and whether any of the

factors enumerated in R.C. 2151.414(E) are present that would indicate that the child

cannot be placed with either parent within a reasonable time or should not be placed with

either parent. In re B.K., 6th Dist. Lucas No. L-10-1053, 2010-Ohio-3329, ¶ 42-43. A

court need only find one (E) factor present to support a finding that the child cannot be

placed with either parent within a reasonable time or should not be placed with either

parent. In re C.F. at ¶ 50, citing In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738

(1996), syllabus.

{¶ 26} In this case, the court found that R.C. 2151.414(E)(2) and (11) apply.

Those sections provide,

(E) In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code whether a child cannot be placed with either parent within a

10. reasonable period of time or should not be placed with the parents, the court

shall consider all relevant evidence. If the court determines, by clear and

convincing evidence, at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code that one or more of the following exist as to each of the

child’s parents, the court shall enter a finding that the child cannot be

placed with either parent within a reasonable time or should not be placed

with either parent:

(2) Chronic mental illness, chronic emotional illness, intellectual

disability, physical disability, or chemical dependency of the parent that is

so severe that it makes the parent unable to provide an adequate permanent

home for the child at the present time and, as anticipated, within one year

after the court holds the hearing pursuant to division (A) of this section or

for the purposes of division (A)(4) of section 2151.353 of the Revised

Code;

***

(11) The parent has had parental rights involuntarily terminated with

respect to a sibling of the child pursuant to this section or section 2151.353

or 2151.415 of the Revised Code, * * * and the parent has failed to provide

clear and convincing evidence to prove that, notwithstanding the prior

11. termination, the parent can provide a legally secure permanent placement

and adequate care for the health, welfare, and safety of the child.

{¶ 27} All of the court’s findings under R.C. 2151.414 must be by clear and

convincing evidence. In re Tashayla S., 6th Dist. Lucas No. L-03-1253, 2004-Ohio-896,

¶ 14.

{¶ 28} We review a trial court’s determination in a permanent custody case under

a manifest-weight-of-the-evidence standard. In re P.W., 6th Dist. Lucas No. L-12-1060,

2012-Ohio-3556, ¶ 20. In doing so, we must weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether the trier of

fact clearly lost its way in resolving evidentiary conflicts so as to create such a manifest

miscarriage of justice that the decision must be reversed. State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997). But, while we review the evidence and consider

the witnesses’ credibility, we must be mindful that the juvenile court, as the trier of fact,

is in the best position to weigh evidence and evaluate testimony. In re. P.W. at ¶ 20.

{¶ 29} As to Section (E)(2), the trial court made the following findings:

As to Mother and Father, this Court finds under R.C.

2151.414(E)(2), that the parents suffer from such severe intellectual

disability, mental illness, and chemical dependency that Mother and Father

are unable to provide an adequate permanent home for the child at the

present time. Additionally, this Court find that it is highly unlikely that

12. Mother or Father will remedy their intellectual disability, chronic mental

illness and chemical dependency within one year from the trial date of this

matter.

As set forth more fully above, both parents have significant

cognitive and developmental delays, mental health concerns, and substance

abuse issues. These issues have been present since the first sibling case in

2018 and have caused subsequent removals of all of their children. * * *

Father is linked to services from the Board of Developmental Disabilities.

[T.P.] has significant medical needs that render the parents unable to care

for her. (J.E. at 6).

{¶ 30} As to Section (E)(11), the trial court made the following findings:

2151.414(E)(11), that Mother and Father have parental rights involuntarily

terminated with respect to [T.P.’s] sibling [sic] pursuant to R.C. 2151.353,

R.C. 2151.414, or R.C. 2151.415 * * * and the parent has failed to provide

clear and convincing evidence to prove that, notwithstanding the prior

termination, the parent can provide a legally secure permanent placement

and adequate care for the health, welfare, and safety of the child.

As set forth more fully above, Mother and Father have three older

children that have been removed from their custody. Permanent custody

13. has been awarded to MCCS and LCCS for two of the children, as well as

legal custody to a relative of the third. The parents have been offered case

plan services since the inception of the original sibling case in 2018.

Parents failed to overcome the reasons for removal in the past sibling cases

and presented no evidence to the contrary.

Accordingly, this Court finds that LCCS has presented clear and

convincing evidence that [T.P.] cannot be placed with either parent within a

reasonable time or should not be placed with either parent for the reasons

set forth above. (J.E. at 7).

{¶ 31} On appeal, parents do nothing more than reassert their facially inaccurate

claim that “most” of the trial court’s findings were not specific to father. But, they do not

argue, much less point to any evidence, that the trial court erred when it determined that

T.P. could not, or should not, be placed with father. Likewise, they do not contest

findings by the trial court that father suffers from severe intellectual disability, mental

illness, or chemical dependency or that such condition(s) render him unable to provide a

permanent home for T.P., nor do they dispute the trial court’s finding that father’s

parental rights were terminated as to any, or all, of T.P.’s siblings. And, even if they did,

we could not consider such arguments, given the absence of a transcript. Appeal of

Babcock, 6th Dist. Sandusky No. S-89-4, 1990 WL 21565, *7 (Mar. 9, 1990) (“Without a

transcript of [the dispositional] proceedings, [parents] cannot demonstrate the errors

14. complained of and this court can only presume the regularity of the trial court’s

proceedings and affirm its judgment.”).

{¶ 32} In the absence any evidence to support a claim that the trial court erred in

determining that T.P. could not within a reasonable time or should not be placed with

father, we affirm the trial court’s findings under R.C. 2151.414(B)(1)(a). Accordingly,

parents’ second assignment of error is not well-taken.

III. Conclusion

{¶ 33} For the reasons expressed above, we find that parents failed to show that

the trial court’s decision was not supported by clear and convincing evidence or was

against the manifest weight of the evidence. We further find that parents’ assignments of

error are without merit. Therefore, the July 7, 2023 judgment of the Lucas County Court

of Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24, costs of this

appeal are assessed to parents.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

15. In re T.P. L-23-1175

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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