In re G.K. - Case Law

[Cite as In re G.K., 2019-Ohio-1582.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

: JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
IN RE G.K. & L.K. : Hon. Craig R. Baldwin, J.
:
: Case Nos. 18 CA 39
: 18 CA 40
:
:
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court
of Common Pleas, Juvenile Division,
Case No. 17J00258

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: April 25, 2019

APPEARANCES:

For Mother-Appellant: For GCCS - Appellee:

WESLEY ALTON JOHNSTON MELISSA M. WILSON
The IMG Building, Suite 910 274 Highland Ave.
1360 E. 9th St. Cambridge, OH 43725
Cleveland, OH 44114
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 2

Delaney, J.

{¶1} Mother-Appellant appeals the December 7, 2018 judgment entry of the

Guernsey County Court of Common Pleas, Juvenile Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Appellant H.M. is the mother of G.K. (born January 20, 2013) and L.K. (born

May 24, 2015). Father is C.K. Mother and Father are not married. Father has had no

involvement in the children’s lives.

{¶3} GCCS became involved with the family based on a claim of sex abuse of

G.K. and drug abuse by Mother. G.K. and L.K. were placed on an out-of-home safety plan

with Paternal Uncle. Mother stated Paternal Uncle was approximately 80 years old. A

third child, not involved in this case, was placed in another home.

{¶4} GCCS moved for an ex parte order and the two children were placed in the

temporary custody of Appellee Guernsey County Children Services (“GCCS”) on June

22, 2017. Mother told GCCS that Paternal Uncle was asking Mother for sexual favors in

order to see the children. There were concerns that Paternal Uncle was leaving the

children with his wife, who had dementia, and with his son, who had a criminal history.

{¶5} On August 30, 2017, G.K. and L.K. were adjudicated neglected and

dependent. The children were placed in foster care and have been in the same foster

home since January 2018. A case plan was developed for Mother. Mother suffered from

drug addiction. As part of her case plan, Mother was required to complete drug, alcohol,

and mental health assessments and follow the recommendations of her providers. Mother

completed her assessments but did not attend follow-up counseling or utilize the

recommended services. Mother was diagnosed with severe methamphetamine use
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 3

disorder, severe cannabis use disorder, post-traumatic stress disorder, borderline

personality disorder, and opioid use disorder. GCCS offered to assist Mother with

inpatient drug treatment, but Mother declined.

{¶6} Mother tested positive 39 times for illegal drugs including

methamphetamine, amphetamine, cocaine, buprenorphine, and THC.

{¶7} Mother had weekly one-hour supervised visitation with the children. Mother

and children were bonded. Mother brought the children food and toys during her visits.

Mother tested positive for drugs during some visits with the children.

{¶8} Mother was not employed. Mother relied on Paternal Uncle for income.

{¶9} Mother lost custody of two other children through Hancock County.

{¶10} GCCS explored kinship placement of the children based on

recommendations by Mother. The GCCS investigations found the 13 recommendations

were not appropriate.

{¶11} GCCS filed a motion for permanent custody on August 8, 2018. A hearing

was held on November 26, 2018.

{¶12} The Guardian ad litem recommended GCCS be granted permanent custody

of the children.

{¶13} On December 7, 2018, the trial court granted the GCCS motion for

permanent custody. The trial court first found the clear and convincing evidence showed

the children had been in the temporary custody of a public service agency for 12 or more

months of a consecutive 22-month period. It further found the children could not be placed

with Mother or Father within a reasonable time or should not be placed with parents. The
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 4

trial court finally found the termination of parental rights was in the best interest of the

children.

{¶14} It is from this judgment entry Mother now appeals.

ASSIGNMENT OF ERROR

{¶15} Mother raises one Assignment of Error:

{¶16} “THE COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE

AGENCY WHEN NOT HAVING CLEAR AND CONVINCING EVIDENCE THAT IT WAS

IN THE BEST INTEREST OF THE CHILD.”

ANALYSIS

{¶17} Mother contends in her sole Assignment of Error that the trial court erred

when it found it was in the best interest of the children to grant permanent custody to

GCCS. We disagree.

{¶18} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). 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). “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.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all

the essential elements of the case supports the trial court's judgment, an appellate court
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 5

must affirm the judgment and not substitute its judgment for that of the trial court. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶19} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

{¶20} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency.

{¶21} Pursuant to R.C. 2151.414(B)(1), the trial court may grant permanent

custody of a child to a movant if the court determines at the hearing, by clear and

convincing evidence, that it is in the best interest of the child to grant permanent custody

of the child to the agency that filed the motion for permanent custody and that any of the

following apply:

(a) The child is not abandoned or orphaned, has not 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 has not 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 if, as
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 6

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, 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.

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, 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.

(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. * * * *.

{¶22} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, a trial court

will usually determine whether one of the four circumstances delineated in R.C.
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 7

2151.414(B)(1)(a) through (e) is present before proceeding to a determination regarding

the best interest of the child.

{¶23} Mother concedes the children have been in the temporary custody of GCCS

for 12 or more months of a consecutive 22-month period. R.C. 2151.414(B)(1)(d). She

argues the trial court erred as to the second prong, whether permanent custody was in

the best interest of the children.

{¶24} Pursuant to R.C. 2151.414(D)(1), in determining the best interest of a child

in a permanent custody proceeding, 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;

in the temporary custody of one or more public children services 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. * * * *.
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 8

{¶25} The trial court first found the children were bonded with each other and

placed in the same foster home. The children and Mother were bonded. Mother attended

visitation and brought the children food and toys during the visitation. Paternal Uncle

provided the items for Mother. R.C. 2151.414(D)(1)(a).

{¶26} The children were too young to express their wishes, but the GAL

recommended the trial court award permanent custody to GCCS. R.C. 2151.414(D)(1)(b).

{¶27} The children had been in the temporary custody of GCCS since June 22,

2017. GCCS thoroughly investigated kinship placement, but Mother’s 13

recommendations were found to be inappropriate. R.C. 2151.414(D)(1)(c) and (d). Based

on Mother’s own allegations to GCCS, Paternal Uncle was not a suitable placement.

{¶28} The issue in this case is Mother’s drug addiction. GCCS attempted to help

Mother secure treatment, but Mother was unable to commit to treatment and address her

drug addiction. The children need legally secure placement. Mother’s drug addiction does

not permit reunification despite the best efforts of GCCS.

{¶29} We find no error for the trial court to find it was in the best interest of the

children to grant the permanent custody motion of GCCS.

{¶30} Mother’s sole Assignment of Error is overruled.
Guernsey County, Case Nos. 18 CA 39, 18 CA 40 9

CONCLUSION

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

Division is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.