[Cite as In re A.J., 2014-Ohio-3754.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
IN RE: A.J., B.J., & M.R. : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
(Father's Appeal) :
: Case No. 14-CA-26
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
Nos. F2011-0601; F2011-0603; F2012-
0447
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 26, 2014
APPEARANCES:
For Father-Appellant: For Licking County DJFS-Appellee:
MICHAEL R. DALSANTO LIA MEEHAN
3 South Park Place, Suite 220 20 S. Second Street, Fourth Floor
Newark, OH 43055 Newark, OH 43055
For Mother-Appellant Guardian ad Litem:
DREAMA BOGART SHEENA SJOSTRAND-POST
P.O. Box 30402 195 E. Broad St.
Gahanna, OH 43230 Pataskala, OH 43062
Licking County, Case No.14-CA-26 2
Delaney, J.
{¶1} Father-Appellant Robert Johns appeals the April 4, 2014 judgment entry
of the Licking County Court of Common Pleas, Juvenile Division terminating his parental
rights as to B.J. and A.J.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant Robert Johns is the Father of B.J. (born June 12, 2001) and A.J.
(born November 23, 2004). Appellant Crystal Rosumenko is the Mother of B.J., A.J.,
and M.R. (born May 18, 2012). Paul Rosumenko is the father of M.R.
{¶3} Licking County Department of Job and Family Services ("LCDJFS")
became involved with the family in June 2011. A voluntary case was opened due to
allegations of Mother's substance abuse and poor home conditions. Mother was
enrolled in the Licking County Alcoholism Prevention Program (LAPP). Mother resided
with Paul Rosumenko and married him on September 5, 2011. Paul Rosumenko is a
registered sex offender with past charges of domestic violence, menacing, and a
violation of the civil stalking protection order. In October 2011, Paul Rosumenko was
sent to prison for a probation violation. Mother's case with LAPP was closed because of
Mother's poor attendance.
{¶4} In October 2011, LCDJFS filed a dependency complaint for A.J. and B.J.
The children were placed under protective supervision and placed in Father's home. In
December 2011, A.J. and B.J. were adjudicated dependent.
{¶5} While A.J. and B.J. resided with Father, LCDJFS provided Father with
multiple resources to assist with the care of the children. B.J. had anger, anxiety, and
attachment issues. A.J. was diagnosed with post-traumatic stress syndrome and
Licking County, Case No.14-CA-26 3
attention deficit disorder. There were concerns that A.J. was sexually abused. Both
children took medication. Father at one point due to a lack of medication for one child,
gave the one child the other's medication. The children suffered from lice and Father's
home had bed bugs. Father moved from the home to a one-bedroom apartment. Father
had serious health issues related to a hip replacement requiring Father to stay in a
nursing home during his recovery in August 2012. The LCDJFS resources assisted
Father with understanding the need to keep a clean and safe home and provide the
children with structure. The resource providers stated there was no doubt Father loved
his children, but he struggled with caring for the children and their special needs. One
resource provider stated that Father would hear but not listen to the recommendations.
{¶6} On March 12, 2012, LCDJFS filed a motion to modify in B.J.'s case,
asking that his disposition be modified from protective supervision to temporary custody,
due to B.J.'s behavioral issues. While residing with Father, B.J. was truant from school
at least 45 days. B.J. stabbed a teacher with a pencil. On May 24, 2012, the court
granted the motion and B.J. was placed in a treatment foster home.
{¶7} A.J. was returned to Mother's custody, subject to protective supervision.
While A.J. resided with Mother, Mother was residing with Nick Hutchinson and his
daughter. Nick Hutchinson was a violent alcoholic. There were unsubstantiated
allegations that Nick Hutchinson and his daughter sexually abused A.J. LCDJFS
received complaints of problems in Mother's home such as parties and questionable
people in the home.
{¶8} M.R. was born on May 18, 2012.
Licking County, Case No.14-CA-26 4
{¶9} On July 17, 2012, LCDJFS sought and obtained an ex parte emergency
order granting shelter care of A.J. and M.R. Mother tested positive for oxycodone.
Mother has been diagnosed with an opioid related disorder. Shelter care was granted
on July 18, 2012. On November 9, 2012, M.R. was adjudicated dependent and placed
in the temporary custody of LCDJFS. A.J. was also placed in the temporary custody of
LCDJFS. A.J. was placed in the treatment foster home with B.J.
{¶10} On May 17, 2013, Paul Rosumenko was sentenced to six years in prison
for aggravated burglary and domestic violence, where Mother was the victim of the
domestic violence charge.
{¶11} On May 31, 2013, LCDJFS filed a motion for permanent custody. A
hearing before the magistrate was held on October 11 and 14, 2013.
{¶12} Ryan Houck, the family's caseworker, testified LCDJFS has worked with
the family for two years and five months and has not seen improvement in Mother or
Father to allow for reunification with the children. The guardian ad litem recommended
that permanent custody be granted to LCDJFS.
{¶13} On November 26, 2013, the magistrate issued his decision recommending
that permanent custody of A.J., B.J., and M.R. be granted to LCDJFS.
{¶14} On December 9, 2013, counsel for Father filed objections to the
magistrate's decision. Mother also filed objections to the magistrate's decision. The trial
court set a non-oral hearing on January 17, 2014. The trial court appointed Father new
counsel on December 17, 2013. On January 17, 2014, counsel filed a motion for
extension of time to file supplemental objections. The trial court denied the motion.
Licking County, Case No.14-CA-26 5
{¶15} On April 4, 2014, the trial court adopted the decision of the magistrate and
granted permanent custody of A.J., B.J., and M.R. to LCDJFS.
{¶16} It is from this decision Father now appeals.
ASSIGNMENTS OF ERROR
{¶17} Father raises three Assignments of Error:
{¶18} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN SUMMARILY
DENYING APPELLANT'S MOTION TO EXTEND TIME TO FILE SUPPLEMENTAL
OBJECTIONS. R. AT 189.
{¶19} "II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE. R. AT 191.
{¶20} "III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE. R. AT 191."
ANALYSIS
I.
{¶21} Father argues in his first Assignment of Error the trial court erred in
denying his motion for extension to file supplemental objections. We disagree.
{¶22} Father's original trial counsel filed objections to the magistrate's decision
on December 9, 2013. The trial court set the matter for a non-oral hearing on January
17, 2014. The trial court appointed new counsel for Father on December 17, 2013. The
Licking County, Case No.14-CA-26 6
hearing transcript was filed on December 31, 2013. Father's new counsel filed a motion
for extension of time to file supplemental objections on January 17, 2014. The basis for
the motion was that counsel was unaware the transcript was available on December 31,
2013. The trial court denied the motion.
{¶23} Counsel for Father states he was seeking a continuance of the non-oral
hearing date. Juv.R. 23 states, "Continuances shall be granted only when imperative to
secure fair treatment for the parties." The decision to grant or deny a motion to continue
is a matter entrusted to the broad discretion of the trial court. McKinney v. Brunney, 5th
Dist. Fairfield No. 13-CA-41, 2014-Ohio-39, ¶ 28 citing Hartt v. Munobe, 67 Ohio St.3d
3, 9, 615 N.E.2d 617 (1993). The term abuse of discretion implies the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶24} We find no abuse of discretion for the trial court to deny the motion for
extension of time to file supplemental objections. Father filed objections to the
magistrate's decision and the trial court made an independent examination of the
magistrate's decision, transcript, and evidence presented.
{¶25} Father's first Assignment of Error is overruled.
II., III.
{¶26} Father argues in his second Assignment of Error the trial court's judgment
that the children could not or should not be placed with Father within a reasonable
amount of time was against the manifest weight and the sufficiency of the evidence.
Father contends in his third Assignment of Error it was against the manifest weight and
Licking County, Case No.14-CA-26 7
sufficiency of the evidence to find that it was in the best interests of the children to grant
permanent custody to LCDJFS. We disagree.
{¶27} On review for manifest weight, 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 must be reversed and a new trial ordered.” State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (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.
{¶28} R.C. 2151.414(E) sets out the factors relevant to determining permanent
custody. Said section states in pertinent part as follows:
(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
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
Licking County, Case No.14-CA-26 8
placed with either parent within a reasonable time or should not be placed
with either parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused
the child to be placed outside the home, the parent has failed continuously
and repeatedly to substantially remedy the conditions causing the child to
be placed outside the child's home. In determining whether the parents
have substantially remedied those conditions, the court shall consider
parental utilization of medical, psychiatric, psychological, and other social
and rehabilitative services and material resources that were made
available to the parents for the purpose of changing parental conduct to
allow them to resume and maintain parental duties.
***
(16) Any other factor the court considers relevant.
{¶29} R.C. 2151.414(B) enables a trial court to grant permanent custody if the
trial court determines by clear and convincing evidence that it is in the best interest of
the child. 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
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613
(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
Licking County, Case No.14-CA-26 9
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, at
477, 120 N.E.2d 118.
{¶30} R.C. 2151.414(D) sets out the factors relevant to determining the best
interest of the child. Said section states relevant factors include, but are 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* * *;
(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.
{¶31} The trial court determined that despite the reasonable case planning and
diligent efforts by LCDJFS to remedy the problems that led to the children being placed
out of Father's home, Father failed continuously and repeatedly failed to substantially
remedy the conditions that caused the children to placed outside of the home pursuant
Licking County, Case No.14-CA-26 10
to R.C. 2151.414(E)(1). The trial court determined the evidence showed that while
Father had numerous resource providers, such as a Homemaker, Parent Mentor, and
Home-Based Counselor, Father was not able to meet the special needs of A.J. and B.J.
Due to the children's emotional issues, the children needed significant structure in their
lives for them to recover. The resource providers had to instruct Father on the need to
keep food in the house and to prepare meals to serve at appropriate mealtimes. While
in Father's care, B.J. missed at least 45 days of school. While at Father’s original home
with the children, the children suffered from lice and the home was infested with bed
bugs. At the time of the hearing, Father resided in a one-bedroom apartment where he
planned that B.J. would sleep on an air mattress in the living room, Father would sleep
on the couch, and A.J. would sleep in the bedroom. The caseworker noted that A.J. had
most likely been sexually abused and required extra consideration of her privacy needs.
{¶32} The trial court further found under R.C. 2151.414(E)(16), Father had
health issues that required Father to live in a nursing home for some time during his
recovery from those health issues. The trial court found that Father’s health issues in
addition to the special needs of two children would exceed Father's ability to provide for
the children.
{¶33} The record shows by clear and convincing evidence that LCDJFS has
diligently assisted Father to remedy the conditions that caused the children to be
removed from his home, but Father continued to struggle to meet the special needs of
A.J. and B.J.
{¶34} The guardian ad litem recommended that it was in the best interests of the
children that custody be awarded to LCDJFS. Visitation with Father went well. The
Licking County, Case No.14-CA-26 11
children stated they desired to live with Father or Mother. However, B.J. also remarked
that he needed structure. The children were in a treatment foster home that provided
them with structure and stability. B.J. and A.J. were attending counseling regularly and
were making improvements in their emotional health, which was reflected in their
improved behaviors at school.
{¶35} Upon review, we find the trial court's conclusions under R.C.
2151.414(E)(1) and (16) and best interest are supported by clear and convincing
evidence. The trial court did not err in granting permanent custody of A.J. and B.J. to
LCDJFS.
CONCLUSION
{¶36} Father's three Assignments of Error are overruled.
{¶37} The judgment of the Licking County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, J.,
Farmer, P.J. and
Wise, J., concur.
In re A.J.
Combined Opinion