In re J.M.

[Cite as In re J.M., 2020-Ohio-1410.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER: JUDGES:
Hon. William B. Hoffman, P.J.
J.M. Hon. John W. Wise, J.
J.M. Hon. Craig R. Baldwin, J.

Case Nos. 2019 CA 00051, 2019 CA
00052, 2019 CA 00058 & 2019 CA 00059

O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
Nos. F2017-0063 & F2017-584

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 9, 2020

APPEARANCES:

For LCJFS For Eric Moss

WILLIAM C. HAYES JERMAINE COLQUITT
Licking County Prosecutor 33 W. Main Street, Suite #109
Newark, Ohio 43055
PAULA M. SAWYERS
Assistant Prosecuting Attorney Guardian Ad Litem
20 S. Second Street, Fourth Floor
Newark, Ohio 43055 JOHN OBORA
29 S. Park Place
Newark, Ohio 43055
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 2
2019 CA 00058, 2019 CA 00059

For Naisha Moss

CAROLYNN FITTRO
FITTRO LAW, LLC
1335 Dublin Road, Suite 104D
Columbus, Ohio 43215
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 3
2019 CA 00058, 2019 CA 00059

Hoffman, P.J.
{¶1} In Licking County App. Nos. 2019 CA 00051 and 2019 CA 00052, appellant

Naisha Moss (“Mother”) appeals the June 21, 2019 judgment entries entered by the

Licking County Court of Common Pleas, Juvenile Division, which overruled her objections

to the magistrate’s May 22, 2019 decision, recommending her parental rights, privileges,

and responsibilities with respect to her two minor children (“the Children”, collectively;

“Child 1” and “Child 2”, individually) be terminated, and permanent custody of the Children

be granted to appellee Licking County Job and Family Services, Children Services

Department (“LCJFS”). In Licking County App. Nos. 2019 CA 00058 and 2019 CA 00059,

appellant Eric Moss (“Father”) appeals the same judgment entries with respect to the

termination of his parental rights, privileges, and responsibilities of the Children.

STATEMENT OF THE FACTS AND CASE

{¶2} Mother and Father are the biological parents of Child 1 and Child 2. On

February 1, 2017, Mother and Child 1 presented at New Beginnings Domestic Violence

Shelter where Mother reported she was the victim of domestic violence at the hands of

Father. Mother received notice to leave the shelter on February 7, 2017, due to her failure

to follow shelter rules and comply with the requests of the staff. LCJFS filed a request for

an emergency ex-parte order of removal on February 7, 2017. Following a shelter care

hearing on the same day, the trial court issued an ex-parte order placing Child 1 in the

emergency temporary custody of LCJFS. The trial court appointed Attorney John Obora

as guardian ad litem for Child 1.

{¶3} On February 8, 2017, LCJFS filed a complaint alleging Child 1 was

dependent. Mother had reported being homeless since November, 2016. Mother was
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 4
2019 CA 00058, 2019 CA 00059

unemployed and had no independent financial means to support herself and Child 1.

While at the shelter, Mother’s room, at times, smelled of marijuana and alcohol. The

shelter staff observed Mother display unusual behavior including bathing Child 1 at

3:30a.m.; leaving Child 1 alone in a car seat while she went outside to smoke; and calling

Child 1 various names such as “demon spawn”. Mother’s behavior was erratic while she

was residing at the shelter. Mother refused to submit to drug screens at the shelter and

at LCJFS. LCJFS also had concerns regarding a domestically violent relationship

between Mother and Father. The trial court conducted an adjudicatory hearing on April

6, 2017, and found Child 1 to be dependent. Child 1 was placed in the temporary custody

of LCJFS.

{¶4} Mother gave birth to Child 2 on August 17, 2017. Mother admitted using

methamphetamine days prior to Child 2’s birth. In addition to ongoing substance abuse

issues, LCJFS continued to have concerns pertaining to Mother and Father’s housing

and financial instability, their volatile relationship, their mental health issues, as well as

their lack of parent education. The trial court issued an ex-parte order placing Child 2 in

the emergency temporary custody of LCJFS on August 18, 2017. On August 21, 2017,

LCJFS filed a complaint alleging Child 2 was dependent. The trial court appointed

Attorney Obora as guardian ad litem for Child 2. Parents were ordered to undergo

evaluations and attend counseling at the Licking County Alcoholism Prevention Program

or other approved drug and/or alcohol treatment program, and submit to random drug

screening and breathalyzer testing. The trial court conducted an adjudicatory hearing on

October 16, 2017, and found Child 2 to be dependent. Child 2 was also placed in the

temporary custody of LCJFS.
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 5
2019 CA 00058, 2019 CA 00059

{¶5} On January 18, 2018, LCJFS filed a motion for permanent custody. The

magistrate conducted a hearing on LCJFS’s motion on March 30, 2018. Via decision filed

May 1, 2018, the magistrate denied LCJFS’s motion and ordered a six month extension

of temporary custody of Child 1. The magistrate did not order an extension of temporary

custody relative to Child 2 as his case was only 8 months from its inception. The trial

court approved and adopted the magistrate’s decision via judgment entry filed May 1,

2018.

{¶6} On July 6, 2018, LCJFS filed a second motion for permanent custody. The

trial court scheduled the matter for hearing on October 22, 2018. The guardian ad litem

filed his written report on October 15, 2018. The trial court subsequently continued the

matter to January 2, 2019. At the hearing, LCJFS requested a second extension of

temporary custody of Child 1 and a first extension of temporary custody of Child 2. The

magistrate granted the extensions until February 7, 2019, and February 18, 2019,

respectively.

{¶7} On January 8, 2019, LCJFS filed a third motion for permanent custody. The

motion came on for hearing before the magistrate on March 27, 2019.

{¶8} Kelsey Weisentstein, an ongoing social worker for LCJFS, testified she was

assigned to the case in February, 2017, due to concerns over Parent’s mental health,

drug and alcohol abuse, unstable and unsafe housing, unemployment and economic

instability, as well as domestic violence. Mother and Father’s case plans required them

to complete mental health assessments and follow all recommendations; complete

substance abuse assessments and follow any recommendations; submit to random drug
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 6
2019 CA 00058, 2019 CA 00059

screens; address domestic violence concerns; engage in parenting education; and obtain

and maintain stable housing and employment.

{¶9} Mother completed her mental health assessment. She was diagnosed with

adjustment disorder with depressed mood and stimulant dependence. Mother

commenced treatment. Because Mother was often late to her appointments and

eventually failed to attend appointments altogether, her case was closed. Mother did not

reengage in counseling. Mother refused to accept responsibility for her actions and

avoided accountability for the removal of the Children. Mother became suspicious and

believed there was a conspiracy by LCJFS to keep the Children. Mother was belligerent

with Weisenstein and made threats of killing the social worker in Facebook posts.

{¶10} Mother continued to use methamphetamines. Mother was discharged from

substance abuse treatment in February, 2019. Mother’s counselor, Deborah Esterline,

testified Mother told her she had not used methamphetamine since October, 2017. At

the hearing, Mother denied telling that to Esterline. When advised of the results of one

of her drug screens during a visit with the Children, Mother began to scream obscenities

at Weisenstein and accused LCJFS of trapping her. A sheriff’s deputy eventually

escorted Mother out of the facility. Social worker Stephanie Stevenson was assigned to

the family thereafter. During a meeting with Stevenson on February 27, 2019, Mother

admitted she had used methamphetamine that month. Mother also disclosed to

Stevenson Father was emotionally abusive to her. At the hearing, Mother testified her

last abuse of methamphetamine was December, 2018. Mother had not been employed

at any time during the life of the case.
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 7
2019 CA 00058, 2019 CA 00059

{¶11} Father completed his mental health assessment and was not referred for

services. Father completed a substance abuse assessment in March, 2017. Father had

two negative drug screens during the summer. After Father refused multiple drug screens

in late 2017, he was asked to complete a second assessment in November, 2017. Father

was attending a men’s group and meeting with a counselor, but he had not been

successfully discharged at the time of the hearing. Loretta Snoke, Father’s counselor at

Licking County Alcohol and Drug Prevention Program, testified Father continues to deny

having any substance abuse issues. Father told Weisenstein his private time was not

her business as he could use methamphetamines and still parent fine. In October, 2018,

and again in February, 2019, Father told LCJFS staff if his drug screen was positive it

was caused by being pricked by a dirty needle when he was renovating the apartment

above his residence.

{¶12} Father had been employed with the Licking County Auto Auction for a period

of time and reported having side jobs. In lieu of rent, Father is employed by the landlord

refurbishing the entire duplex in which they live. Father also performs property

maintenance tasks and side jobs for the landlord.

{¶13} Parents had each completed three out of ten parenting classes. Parents

were living in the duplex Father was helping to renovate. The inside of the residence was

last observed by LCJFS personnel in February, 2019, at which time the room designated

for the Children was filled with unassembled furniture. Between February 27, 2019, and

March 25, 2019, Stevenson attempted to contact Parents on seven occasions, but such

efforts were fruitless.
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 8
2019 CA 00058, 2019 CA 00059

{¶14} During the best interest portion of the hearing, Weisenstein testified the

Children do not have any special needs. The Children are placed together in a family

foster home. The placement is a foster to adopt situation. The Children are bonded to

each other and with their foster family. Child 1, who is 3 ½ years old, refers to his foster

mother as “mommy”. The Children are comfortable in their foster family’s care and home.

Although Parents display appropriate interactions with the Children during visitation and

they are bonded with the Children, Parents do not have insight into the issues which

caused the removal of the Children from their care.

{¶15} Via decision filed May 22, 2019, the magistrate recommended Parents’

parental rights, privileges, and responsibilities with respect to the Children be terminated

and permanent custody of the Children be granted to LCJFS. The magistrate found

Parents continued and repeatedly failed to remedy the concerns which led to the

Children’s removal. The magistrate also found Parents had refused to accept

responsibility for and lacked insight into the issues which led to the Children’s removal.

The magistrate further found it was in the best interest of the Children to grant permanent

custody to LCJFS. The trial court approved and adopted the magistrate’s decision via

Judgment Entry filed May 22, 2019. Mother filed objections to the magistrate’s decision

on June 3, 2019. Via Judgment Entry filed June 21, 2019, the trial court overruled

Mother’s objections.

{¶16} It is from this judgment entry Parents appeal.

{¶17} In Licking County App. Nos. 2019 CA 00051 and 2019 CA 00052, Mother

raises the following assignments of error:
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 9
2019 CA 00058, 2019 CA 00059

I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE

IN THE BEST INTERESTS OF J.M. AND J.M. TO PERMANENTLY

TERMINATE THE PARENTAL RIGHTS OF THEIR PARENTS AND

PLACE THEM IN THE PERMANENT CUSTODY OF LICKING COUNTY

JOB AND FAMILY SERVICES, CHILDREN SERVICES DEPARTMENT.

II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN IT FOUND BY CLEAR AND CONVINCING EVIDENCE THAT J.M.

AND J.M. COULD NOT BE PLACED WITH THEIR MOTHER WITHIN A

REASONABLE TIME OR SHOULD NOT BE PLACED WITH THEIR

MOTHER.

{¶18} In Licking County App. Nos. 2019 CA 00058 and 2019 CA 00059, Father

raises the following assignments of error:

I. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY OF THE MINOR CHILDREN TO THE LICKING COUNTY

DEPARTMENT OF JOB AND FAMILY SERVICES BECAUSE THE STATE

FAILED TO MEET ITS BURDEN BY CLEAR AND CONVINCING

EVIDENCE.

II. THE TRIAL COURT IMPROPERLY TOOK JUDICIAL NOTICE OF

THE FACTS CONTAINED IN A PRIOR PROCEEDING, ADMITTING
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 10
2019 CA 00058, 2019 CA 00059

OVER OBJECTION FINDINGS OF FACT CONTAINED IN A PRIOR

PERMANENT CUSTODY ADJUDICATION.

III. THE TRIAL COURT ERRED IN NOT REQUIRING THE

GUARDIAN AD LITEM TO FILE A WRITTEN REPORT IN COMPLIANCE

WITH R.C. 2151.414(C).

{¶19} These cases come to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

LICKING APP. NO. 2019 CA 00051

LICKING APP. NO. 2019 CA 00052

I, II

{¶20} We elect to address Mother’s first and second assignments of error

together. In her first assignment of error, Mother contends the trial court erred in finding

it was in the Children’s best interest to terminate her parental rights and grant permanent

custody to LCJFS. In her second assignment of error, Mother challenges the trial court's

finding the Children could not be placed with her within a reasonable time or should not

be placed with her.

{¶21} 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, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported by

some competent, credible evidence going to all the essential elements of the case will not
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 11
2019 CA 00058, 2019 CA 00059

be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

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

{¶22} 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 or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶23} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that 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; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

{¶24} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

the child's parents, siblings, relatives, foster parents and out-of-home providers, and any

other person who may significantly affect the child; (2) the wishes of the child as
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 12
2019 CA 00058, 2019 CA 00059

expressed directly by the child or through the child's guardian ad litem, with due regard

for the maturity of the child; (3) the custodial history of the child; and (4) 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.

{¶25} 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, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

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

the best interest of the child.

{¶26} If the child is not abandoned or orphaned, the focus turns to whether the

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

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶27} As set forth in our statement of the facts and case, supra, as well as the

magistrate’s thorough 17 page May 22, 2019 decision, Mother failed to complete her case

plan services. Mother continued to use methamphetamines. Mother lied about her last

usage which resulted in her substance abuse counselor discharging her from treatment.

Mother failed to reengage in mental health counseling after her case was closed due to

her failure to attend. Mother’s failure to address her own mental health issues prevented

her from addressing Parent’s domestic violence issues. Mother refused to accept
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 13
2019 CA 00058, 2019 CA 00059

responsibility for her actions and avoided accountability for the removal of the Children.

Mother had not completed parenting classes. LCJFS was unable to verify whether

Mother had appropriate housing. Mother was unemployed throughout the pendency of

the case.

{¶28} The Children do not have any special needs. They are placed together in

a family foster home. The placement is a foster to adopt situation. The Children are

bonded to each other and with their foster family. Child 1, who is 3 ½ years old, refers to

his foster mother as “mommy”. The Children are comfortable in their foster family’s care

and home.

{¶29} Based upon the foregoing, we find the trial court's finding it was in the best

interest of the Children to grant permanent custody to LCJFS is not against the manifest

weight of the evidence. We further find the trial court's finding the Children could not be

placed with Mother within a reasonable period of time or should not be placed with her is

not against the manifest weight of the evidence.

{¶30} Mother’s first and second assignments of error are overruled.

LICKING APP. NO. 2019 CA 00058

LICKING APP. NO. 2019 CA 00059

I, II, III

{¶31} We need not address Father’s assignments of error. Father appealed the

trial court’s June 21, 2019 judgment entry, overruling Mother’s objections to the

magistrate’s May 22, 2019 decision. However, a review of the record reveals Father

failed to file timely, written objections to the magistrate's decision.

{¶32} Civ. R. 53 provides:
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 14
2019 CA 00058, 2019 CA 00059

b) Objections to magistrate's decision. * * *

ii) Specificity of objection. An objection to a magistrate's decision

shall be specific and state with particularity all grounds for objection.

***

iv) Waiver of right to assign adoption by court as error on appeal.

Except for a claim of plain error, a party shall not assign as error on appeal

the court's adoption of any factual finding or legal conclusion, whether or

not specifically designated as a finding of fact or conclusion of law under

Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or

conclusion as required by Civ.R. 53(D)(3)(b).

{¶33} Because Father failed to properly object to the magistrate's May 22, 2019

decision in accordance with Civ .R. 53(D)(3), Father has waived the right to assign those

issues as error on appeal. See, Adams v. Adams, 9th Dist. Wayne No. 13CA0022, 2014–

Ohio–1327, ¶ 6.

{¶34} Based upon our Statement of the Facts, supra, and our review of the record,

we do not find any of Father’s assignments of error have merit, let alone rise to the level

of plain error.

{¶35} Father’s first, second, and third assignments of error are overruled.
Licking County, Case Nos. 2019 CA 00051, 2019 CA 00052, 15
2019 CA 00058, 2019 CA 00059

{¶36} The judgment of the Licking County Court of Common Pleas, Juvenile

Division, is affirmed.

By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur