In re D.M.

[Cite as In re D.M., 2018-Ohio-4737.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: D.M. : JUDGES:
P.B. : Hon. W. Scott Gwin, P.J.
C.B. : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
:
:
: Case Nos. 18 CA 18
: 18 CA 19
: 18 CA 20
:
: OPINION

.

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Juvenile Division, Case Nos.
16JC00412, 16JC00502, 16JC00412

JUDGMENT: November 26, 2018

DATE OF JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MARK PERLAKY MELISSA M. WILSON
232 W. 3rd Street 323 Guernsey County Children Services
Dover, OH 44622 274 Highland Avenue
Cambridge, OH 43725
For Appellant Ronald Blackstone

JEANETTE MOLL
P. O. Box 461
ZANESVILLE, OH 43701
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 2

Wise, Earle, J.

{¶ 1} Appellant is the father of P.B, born November 28, 2015, and C.B, born

October 23, 2016. D.M's father is unknown. L.M is the mother of D.M, P.B and C.B.

Appellant and L.M are not married, but lived together on and off during the pendency of

this matter.

{¶ 2} On August 30, 2016, a complaint filed by GCCS alleged D.M and P.B were

neglected, abused and dependent. Concerns included appellant's alcohol abuse and

unexplained injuries to D.M alleged to have been inflicted by appellant. Ex parte custody

was granted to GCCS on the same date.

{¶ 3} At an adjudicatory hearing held on November 7, 2016, appellant and L.M

stipulated to the children being dependent pursuant to R.C. 2151.04(B) and (C), and the

trial court found them dependent. The children remained in the temporary custody of

GCCS. C.B was born shortly before the adjudicatory hearing and immediately placed in

GCCS temporary custody. C.B's case was consolidated with that of D.M and P.B. All

three children were placed in a foster home in December 2016 where they remained for

the duration of this matter.

{¶ 4} A dispositional hearing was held on November 21, 2016. The previous order

of temporary custody was continued and the parents were ordered to comply with the

GCCS case plan adopted by the court. Appellant was to complete a mental health

assessment and follow all recommendations, complete anger management, comply with

Help Me Grow and Early Head Start for D.M and P.B, refrain from using physical discipline

with either child and learn effective alternatives, obtain and maintain sobriety, and ensure
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 3

he had the ability to provide for the basic needs of the children - food, clothing, shelter,

medical, and educational.

{¶ 5} Appellant struggles with addiction issues. Through the pendency of this

matter, appellant engaged in both inpatient and outpatient treatment.

{¶ 6} Following appellant’s first inpatient stay, he and L.M fared well in their

progress on their case plan for approximately six months. This led to progressive visits

with the children in January 2017. However, due to housing concerns involving bed bugs,

visits were moved back to the agency until appellant and L.M could secure new housing.

They secured that housing in May 2017. Progressive visits began again, but quickly

deteriorated. Because of L.M's intellectual limitations, parenting falls mostly to appellant.

Appellant was overwhelmed by the stress of having all three children in the house and

stated to workers that he did not know how he could manage to work, cook, clean, and

take care of the children.

{¶ 7} Appellant's relationship with D.M never improved. D.M was observed to be

frightened of appellant and appellant mentioned to one of his service providers that D.M

is the reason he dislikes children. In June, 2017, both appellant and L.M relapsed and

began drinking again. In October, appellant tested positive for methamphetamine and

THC.

{¶ 8} Appellant therefore went through inpatient treatment for a second time and

successfully completed the same. From there he moved into sober housing and engaged

in intensive outpatient therapy. He left the sober living facility on March 29, 2018. As of

the date of the date of the permanent custody hearing, appellant was regularly attending

AA meetings and was engaged in counseling services at Cedar Ridge Behavioral Health
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 4

Solutions. He had, however, revoked his release of information to GCCS. Therefore the

only information the agency received was his attendance and drug screen results.

{¶ 9} Appellant changed jobs frequently, and had six different jobs between

January 2018 and September, 2018. Appellant’s on again, off again relationship with L.M

is tumultuous and riddled with violence. Appellant threatened self-harm on two occasions,

and each destroyed the property of the other during a period when they were separated.

Before appellant entered inpatient treatment for the second time, L.M obtained a

protection order against appellant which stemmed from an aggravated menacing incident

in September of 2017. Appellant violated the protection order on two occasions - October

18 and October 30, 2017. He was convicted of the first violation, the second was

dismissed.

{¶ 10} On September 8, 2017, GCCS filed a motion for permanent custody of the

children. At an annual review hearing held September 18, 2017, the trial court granted a

6-month extension of temporary custody. On January 10, 2018, however, GCCS filed a

motion to dismiss the motion for permanent custody so that kinship placement options

raised by L.M could be explored. When none of the proposed kinship options were found

to be appropriate, GCCS again filed a motion for permanent custody on February 26,

2018.

{¶ 11} The permanent custody hearing was held on June 12, 2018. As of the day

of the hearing, D.M and P.B had been in the temporary custody of GCCS continuously

since August 29, 2016. C.B had been in the continuous custody of GCCS since October

25, 2016.
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 5

{¶ 12} During the hearing GCCS called five witnesses - two case workers, the

CASA/GAL, a parent educator from Tri County Early Head Start, a clinical chemical

dependency and mental health counselor from Cedar Ridge Behavioral Health Solutions

who worked with appellant, and one of the children's foster parents. Appellant testified on

his own behalf. The CASA/GAL submitted a written report to the court before the hearing.

{¶ 13} On June 18, 2018, the trial court issued findings of fact and conclusions of

law finding GCCS had made reasonable efforts to prevent removal of the children and

make it possible for them to return home to either appellant or mother. However, due to

the parent’s inability to make significant progress in their case plans or to make parental

commitment to the children, the court found it in the best interest of the children to

terminate the parental rights of appellant, L.M, and the unknown father of D.M, and place

the children in the permanent custody of GCCS. Appellant subsequently filed an appeal

and the matter is now before this court for consideration. He raises two assignments of

error as follow:

I

{¶ 14} "THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS

OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE"

II

{¶ 15} THERE WAS NOT CLEAR AND CONVICNING EVIDENCE FOR THE

TRIAL COURT TO FIND THAT THE MINOR CHILDREN SHOULD NOT BE PLACED

WITH APPELLANT AND THAT IT WAS IN THE MINOR CHILDREN’S BEST INTEREST
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 6

TO BE PLACED IN THE PERMANENT CUSTODY OF THE GUERNSEY COUNTY

CHILODREN’S SERVICES.

{¶ 16} We address appellant's assignments of error together. Appellant argues the

trial court's finding that the best interests of the children would be served by an award of

permanent custody to GCCS was against the manifest weight and sufficiency of the

evidence. Appellant further argues there was an absence of clear and convincing

evidence to support a conclusion that it was within the best interests of the children to

award permanent custody to GCCS. We disagree.

{¶ 17} As an initial matter, we note that appellant is neither the biological nor legal

father of D.M, yet he challenges the award of permanent custody of D.M to GCCS. As

appellee points out, appellant has no standing to challenge the trial court’s grant of

custody of D.M to GCCS. We therefore address appellant's arguments only as they

pertain to P.B and C.B.

{¶ 18} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). Accordingly,

judgments supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed as being against the manifest weight of the

evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 N.E.2d 578

(1978). On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 7

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

[decision] must be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.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

Permanent Custody

{¶ 19} R.C. 2151.414(B)(1) states permanent custody may be granted to a public

or private agency if the trial court determines by clear and convincing evidence at a

hearing held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the

child and any of the following apply:

(a) The child is not abandoned or orphaned* * *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.

(d) 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* *

*
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 8

(e) The child or another child in the custody of the parent or parents

from whose custody the child has been removed has been

adjudicated an abused, neglected, or dependent child on three

separate occasions by any court in this state or another state.

{¶ 20} 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 361 (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 facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross at 477.

{¶ 21} Under R.C. 2151.414(B)(1)(d), which is applicable in the instant matter,

when a child has been in the temporary custody of a children services agency for 12 or

more months of a consecutive 22–month period a trial court need not engage in the R.C.

2151.414(B)(1)(a) analysis of whether the child can or should be placed with either parent

within a reasonable time and may proceed directly to a best interests analysis. In re

Williams, Franklin App. No. 02AP-924, 2002-Ohio-7205, at ¶ 46.

Best Interests

{¶ 22} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child:
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 9

(D)(1) 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, 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;
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 10

(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.

Appellant’s Arguments

{¶ 23} Appellant does not dispute that the children had been in the custody of

GCCS for the requisite period of time pursuant to R.C. 2151.414(B)(1)(d) to terminate

appellant's parental rights. Appellant therefore focuses his argument on evidentiary

issues, and the existence or non-existence of factors enumerated in R.C. 2151.414(E).

{¶ 24} Specifically appellant argues the trial court should not have allowed a GCCS

case worker to testify as to facts that occurred prior to her direct involvement in the case

because she had no personal knowledge of those facts. Appellant argues that the case

worker’s testimony as to facts pre-dating her involvement in the matter should have been

excluded as impermissible hearsay. Appellant points specifically to the case worker’s

testimony regarding how many reports the agency had received against the family,

reports of alleged abuse of D.M by appellant, and reports of criminal behavior by both

appellant and L.M. Appellant additionally argues the trial court erred when it impermissibly

considered a prior adjudication mentioned by the case worker. Appellant failed to object

to admission of any of this testimony, but contends that its admission amounted to plain

error. We disagree.
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 11

Hearsay

{¶ 25} First, notice of plain error applies only under exceptional circumstances to

prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978) paragraph three of the syllabus. Plain error does not exist unless it can be

said that but for the error, the outcome of the trial would have clearly been otherwise.

State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 58 (1990).

{¶ 26} In In re Z.T, 8th Dist. Cuyahoga No. 2007-Ohio-827 ¶ 21, the Eighth District

found that a social worker may competently testify to the contents of the agency’s case

file:

Evid.R. 803(6) creates a hearsay exception for records kept in the

ordinary course of business. See In re McCullough (Dec. 6, 2001),

Cuyahoga App. No. 79212. Likewise, Evid.R. 803(8) creates a

hearsay exception for public records and reports which set forth the

activities of an agency or office and contain matters observed which,

pursuant to a duty of law, the agency or office has a duty to report.

See In re Brown, Athens App. No. 06CA4, 2006-Ohio-2863, at ¶ 32,

fn.1; In re Garvin (June 15, 2000), Cuyahoga App. Nos. 75329 and

75410.

{¶ 27} Under either exception, the case worker's testimony concerning records

kept by the agency, statements by appellant and L.M, and reports taken during the course

of the agency's investigation, were admissible because the contents of her file, including
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 12

the total number of reports against the family, had been compiled as part of the GCCS’s

activities. We therefore find no plain error and reject appellant's hearsay argument.

Prior Adjudication

{¶ 28} Appellant also argues the trial court improperly took judicial notice of a prior

adjudication. Specifically, appellant points to one paragraph in the trial court's findings of

fact and conclusions of law which indicates "[p]rogressive visitation was attempted in

March of 2016, April of 2016 and the children were returned to their parents in May of

2016 under a previous case."

{¶ 29} An examination of the record, however, indicates that the trial court did not

take judicial notice of the prior case. Rather, the GCCS ongoing case worker testified

regarding the agency's prior involvement with this family, which ended one week before

the current matter began. Further, the CASA/GAL testified at trial and included the entire

history of this family's involvement with GCCS in her final report. The trial court was

permitted to take the testimony of these witnesses and the CASA/GAL report into

consideration when reaching its conclusions. Matter of Spears, 4th Dist. Athens No.

96CA1768, 1997WL117229, *6. We therefore find no plain error in the trial court's

consideration of this information.

R.C. 2151.414(E)

{¶ 30} Appellant next argues the trial court's determination that the children either

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

placed with either parent is against the manifest weight and sufficiency of the evidence.

We disagree.
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 13

{¶ 31} Appellant argues the trial court did not properly consider R.C.

2151.414(E)(1), (2), (3), (4), and (9). But because the trial court found R.C.

2151.414(B)(1)(d) applicable, pursuant to R.C. 2151.414(D)(1)(d) the trial court need only

have considered R.C. 2151.414(E)(7)-(11) in assessing the best interests of the children.

{¶ 32} We therefore address appellant's complaint only as to R.C. 2151.414(E)(9).

That section states:

The parent has placed the child at substantial risk of harm two or

more times due to alcohol or drug abuse and has rejected treatment

two or more times or refused to participate in further treatment two

or more times after a case plan issued pursuant to section 2151.412

of the Revised Code requiring treatment of the parent was

journalized as part of a dispositional order issued with respect to the

child or an order was issued by any other court requiring treatment

of the parent.

{¶ 33} Appellant argues his recent success maintaining his sobriety should have

carried more weight in the trial court's decision. According to the record, however, while

appellant has not rejected treatment, he has been in and out of treatment since February

2016. Although at the time of trial appellant had been sober for seven months, only two

of those months had been spent living outside of a sober living community. Further,

appellant's history as contained in the record indicates that he tends to relapse during
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 14

times of stress, including when all three children are in the home. Transcript of trial (T.),

22-26, 53.

{¶ 34} As for best interests of the children, the trial court noted that mother, due to

her own challenges, needs appellant to assist in parenting, yet when the family is intact,

the stress of the situation results in a breakdown of the family unit. When progressive

visits were attempted, there were instances of domestic violence, two threats of self-harm

by appellant, substance abuse and criminal behavior by both appellant and L.M. Appellant

was placed on 36 months' probation in December 2017 after violating a protection order

obtained against him by L.M. Further, appellant has been unable to maintain consistent

employment. In short, while appellant attempted to work his case plan, he has been

unable to arrive at a place where reunification is possible. T. 35-41.

{¶ 35} The record also reflects the children are "high-needs" and require far more

than casual parenting. Their needs are being met in their foster home. They show some

excitement at the prospect of visiting their parents, yet have been in foster care so long

that they have become well integrated into the foster family. T. 118-128.

{¶ 36} In summary, the GCCS caseworker’s testimony regarding events that took

place before her involvement in this matter were not hearsay. The record reveals that the

trial court considered each applicable statutory factor, relied on the evidence in the entire

record, including the GAL's report, and ultimately concluded that a grant of permanent

custody to GCCS is in the best interest of the children. We find clear and convincing

evidence in the record to support this decision. Appellant’s assignments of error are

overruled.
Guernsey County, Case Nos. 18 CA 18, 18 CA 19, 18 CA 20 15

{¶ 37} The judgment of the Guernsey County Court of Common Pleas Juvenile

Division is affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.

EEW/rw