In re D.R.

[Cite as In re D.R., 2020-Ohio-4025.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
D.R. & T.R. Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.

Case Nos. 2020 CA 00024 &
2020 CA 00025

O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
Nos. F2018-0032, F2018-0033

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 6, 2020

APPEARANCES:

For Appellee LCJFS For Appellant John Robinson, Jr.

WILLIAM C. HAYES JERMAINE COLQUITT
Licking County Prosecutor 33 W. Main Street, Suite #109
Newark, Ohio 43055
PAULA M. SAWYERS
Assistant Prosecuting Attorney Mother, Pro Se
20 S. Second Street, Fourth Floor
Newark, Ohio 43055 MONICA MATTOX
92 ½ Penny Avenue
Guardian Ad Litem Newark, Ohio 43055

JOHN OBORA For Appellee LCJFS
29 South Park Place
Newark, Ohio 43055 PAULA M. SAWYERS
20 South Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 2

Hoffman, P.J.
{¶1} In Licking App. Nos. 2020 CA 0024 and 2020 CA 0025, appellant John

Robinson, Jr. (“Father”) appeals the February 5, 2020 Judgment Entries entered by the

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

to the magistrate’s September 27, 2019 decision, recommending his parental rights with

respect to his two minor children (“Child 1” and “Child 2”, individually; “the Children”,

collectively) be terminated; approved the magistrate’s decision as order of the court; and

granted permanent custody of the Children to appellee Licking County Job and Family

Services (“LCJFS”).

STATEMENT OF THE FACTS AND CASE

{¶2} Monica Mattox (“Mother”) and Father are the biological parents of Child 1

and Child 2. The trial court issued an emergency ex parte order of removal of the Children

on January 11, 2018. On July 12, 2018, LCJFS filed complaints, alleging Child 1 and

Child 2, who was a newborn, were dependent.

{¶3} The complaints asserted Mother did not have suitable or stable housing,

had a prior history with Franklin County Children Services and lost custody of three other

children, engaged in drug seeking behaviors, and admitted taking Percocet, Vicodin, and

Morphine when she was 13 weeks pregnant with Child 2. In addition, Mother had a history

of mental health issues, including an explosive temper. Mother also had a pending felony

non-support case in Franklin County Court of Common Pleas. LCJFS social worker Trudy

Gabbard attempted to see Mother on January 11, 2018, at the address she provided to

hospital staff upon the birth of Child 2. Mother refused to allow the social worker into the

home. Although Gabbard could smell a foul odor coming from the apartment, but she

could not otherwise assess the condition of the residence. Mother also refused to allow
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 3

Gabbard to see Child 1. When the social worker finally made contact with Child 1, she

observed Child 1 to be dirty and had an unpleasant odor.

{¶4} Father, who resided with Mother, also refused to cooperate with Gabbard.

Father was previously diagnosed with schizophrenia. He left his condition untreated.

Mother was currently married to Roger Collier, who was serving several years on a

felonious assault conviction. Mother reported Collier was not the father of the Children.

{¶5} Following an emergency shelter care hearing on January 12, 2018, the trial

court placed the Children in the temporary custody of LCJFS. The trial court ordered

Mother, Father, and Collier to cooperate with genetic testing to determine the paternity of

the Children. The trial court appointed Attorney John Obora as guardian ad litem for the

Children.

{¶6} LCJFS filed motions for random drug screening and breathalyzer testing,

and drug and/or alcohol evaluations and/or treatment. The trial court ordered Mother and

Father 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.

{¶7} The genetic testing indicated a 0% probability of Collier being the biological

father of either Child 1 or Child 2, and a 99.99% probability of Father being the biological

father of both Child 1 and Child 2. On March 5, 2018, the trial court conducted an

uncontested adjudicatory and dispositional hearing, found the Children to be dependent,

and ordered the Children into the temporary custody of LCJFS. Via Magistrate’s Decision

filed March 6, 2018, Collier was dismissed as a party to the proceedings.
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 4

{¶8} LCJFS filed a motion for permanent custody on December 10, 2018. The

matter proceeded to hearing before the magistrate on May 10, 2019. Attorney Obora

filed his Guardian ad Litem report on May 3, 2019, recommending permanent custody of

the Children be granted to LCJFS due to a significant lack of progress by Father and

Mother on the issues which originally led to the removal of the Children.

{¶9} Veronica Harter, the ongoing social worker assigned to the family, testified

the case was opened after Mother gave birth to Child 2 and LCJFS learned Mother had

tested positive for morphine, Percocet, and Vicodin at a prenatal visit. The trial court

granted an ex parte order of removal. Mother and Father left the hospital without Child

2. When LCJFS arrived at their residence to remove Child 1, Father was attempting to

sneak Child 1 out of the house in a garbage bag.

{¶10} Harter visited Mother and Father’s residence on July 30, 2018, and May 7,

2019. Mother and Father had multiple cats and dogs. The home smelled of ammonia.

Harter was not permitted to inspect Mother and Father’s bedroom. The bedroom

designated for the Children was unfurnished. Harter did not observe any clothing for the

Children. Harter attempted to conduct home visits two or three times a month between

August, 2018, and April, 2019, but was generally unsuccessful. When Harter was able

to schedule visits, Mother would call and cancel the appointments, explaining she and

Father were too busy to attend.

{¶11} Father’s case plan required him to complete a psychological evaluation and

follow all recommendations; take all medications as prescribed; sign all requested

releases of information; be available for announced and unannounced home visits;
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 5

maintain safe, stable, and independent housing; and complete a parent education course

and demonstrate the skills he learned therefrom.

{¶12} Father’s sole source of income is social security disability for schizophrenia

and bipolar disorder. Father was not receiving treatment for either condition. Father did

completed a psychological evaluation. The evaluator did not find Father very truthful

during the evaluation. Father evidenced significant deficits in his understanding of the

basic care of the Children. Based upon the results, it was recommended Father undergo

mental health counseling, but he did not comply. Father attended parenting classes

through Heartbeats. However, LCJFS did not find the Heartbeats program sufficient

based upon their concerns related to Father. Father last visited the Children on January

4, 2019. Father and Mother repeatedly cancelled visits at the last minute. Father and

Mother were instructed to call four hours prior to the visit if they had to cancel, but they

did not comply and LCJFS stopped the visits. Father did not attempt to contact the

Children after January 4, 2019.

{¶13} Child 1 has special needs and attends Head Start five days/week. He has

an individualized education program (“IEP”) to address his speech delays. Since LCJFS’s

involvement, Child 1’s vocabulary has increased from 5 words to 50-60 words, and he is

better able to communicate his needs. Mother initially refused to sign the IEP. Mother

and Father reported they did not want Child 1 to have any services until he reached

kindergarten. Child 2 has some developmental delays and is engaged in Early Head

Start and Help Me Grow. Child 2, who was approximately 1 ½ at the time of the hearing,

was not walking and did not say any words. He did not shake his head ”yes” or “no”, and

did not look at the person talking to him. The Children are together in the same foster
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 6

home and have been in the home since their removal. The foster parents are interested

in adopting both Child 1 and Child 2. Neither Mother nor Father had provided LCJFS with

any relatives as possible placement.

{¶14} Father testified he and Mother had to cancel home visit appointments with

Harter due to family problems, specifically, sickness in the family. Father stated he and

Mother have four cats and two dogs in their home. He claimed there was furniture in the

Children’s room and there was clothing for the Children. Father acknowledged he and

Mother had not visited the Children since January 4, 2019, but maintained it was because

“Veronica [Harter] took our visits.” Father explained they were inconsistent with visits

because he and Mother were sick and did not want to get the Children sick. Father

insisted he and Mother called within the time frame required when they cancelled visits.

{¶15} Father noted he completed a psychological assessment, but denied being

informed about the recommendation he follow up with counseling. Father indicated he

did not take any medication for his schizophrenia or bipolar disorder, and did not attend

counseling for those conditions. Father revealed he experiences auditory and visual

hallucinations, which he suggested could be real. Father did not complete a substance

abuse assessment.

{¶16} Via decision filed September 27, 2019, the magistrate recommended Father

and Mother’s parental rights be terminated and permanent custody be granted to LCJFS.

The magistrate found Father and Mother continued and repeatedly failed to remedy the

concerns 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. Father filed objections

to the magistrate’s decision on October 7, 2019. The trial court overruled Father’s
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 7

objections, and approved and adopted the magistrate’s decision via Judgment Entry filed

February 5, 2020.

{¶17} It is from this judgment entry Father appeals, raising the following identical

assignments of error in Licking App. No. 2020 CA 0024 and Licking App. No. 2020 CA

0025:

I. THE TRIAL COURT WAS WITHOUT JURISDICTION TO ISSUE

ITS FEBRUARY 9TH, 2020, JUDGMENT ENTRY GRANTING

PERMANENT CUSTODY BECAUSE THE STATE DID NOT SERVE THE

LEGAL FATHER, ROGER COLLIER, II, WITH ANY DOCUMENT

SUBSEQUENT TO THE COMPLAINT AND THE TRIAL COURT

DISMISSED HIM AS A PARTY ON MARCH 6TH, 2018.

II. THE TRIAL COURT’S DECISION GRANTING PERMANENT

CUSTODY IS NOT SUPPORTED BY CLEAR AND CONVINCING

EVIDENCE. THE STATE DID NOT PROVE THAT THE CHILD CANNOT

OR SHOULD NOT BE PLACED WITH A PARENT WITHIN A

REASONABLE TIME AND DID NOT PROVE THAT GRANTING

PERMANENT CUSTODY IS IN THE CHILD’S BEST INTEREST.

III. LICKING COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES FAILED TO MAKE REASONABLE EFFORTS TO REUNIFY

THE PARENTS WITH FAMILY BECAUSE THEY DID NOT ACCOUNT

FOR APPELLANT’S MENTAL HEALTH DIAGNOSIS IN FORMULATING A
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 8

CASE PLANE, MADE NO ATTEMPT TO REUNIFY WITH LEGAL

FATHER, AND FAILED TO INVESTIGATE RELATIVE PLACEMENT.

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

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

I

{¶19} In his first assignment of error, Father contends the trial court did not have

jurisdiction to grant permanent custody of the Children to LCJFS as LCJFS failed to serve

Roger Collier, the legal father, with the motion for permanent custody. We disagree.

{¶20} After a motion for permanent custody has been filed, the trial court is to

“schedule a hearing and give notice of the filing of the motion and of the hearing, in

accordance with section 2151.29 of the Revised Code, to all parties to the action and to

the child's guardian ad litem.” R.C. 2151.414(A)(1).

{¶21} R.C. 2151.29 reads, in its relevant part:

Service of summons, notices, and subpoenas * * * shall be made by

delivering a copy to the person summoned, notified, or subpoenaed, or by

leaving a copy at the person's usual place of residence. If the juvenile judge

is satisfied that such service is impracticable, the juvenile judge may order

service by registered or certified mail.

{¶22} The notice requirement of R.C. 2151.414(A) ensures the juvenile court has

personal jurisdiction over the parents. In re Kincaid, 4th Dist. No. 00CA3, 2000 WL
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 9

1683456, *4 (Oct. 27, 2000). Unlike subject matter jurisdiction, the issue of personal

jurisdiction is forfeited without timely objection. In re J.P., 9th Dist. No. 23937, 2008-Ohio-

2157, ¶ 7. Whether a parent was properly served raises an issue of personal, rather than

subject matter, jurisdiction. In re M.M., 8th Dist. No. 79947, 2002 WL 207610, *5 (Feb.

7, 2002). Ordinarily, such an issue would be personal to that parent, and another parent

may not raise it. Id.

{¶23} “It is well established in Ohio that an appeal lies only on behalf of a party

aggrieved. Such party must be able to show that he has a present interest in the subject

matter of the litigation and that he has been prejudiced by the judgment of the lower court.”

In re: Love, 19 Ohio St.2d 111, 249 N.E.2d 794 (1969). “One may not challenge an alleged

error committed against a non-appealing party absent a showing that the challenger has

been prejudiced by the alleged error.” In re D.H., 8th Dist. No. 82533, 2003-Ohio-6478,

¶ 7 (Citations omitted).

{¶24} As such, Father may challenge an alleged service error regarding Collier

only if he can demonstrate he himself has been prejudiced by the alleged error.

See, Matter of G.C.J., 11th Dist. Portage Nos. 2018-P-0071, 2018-P-0072, 2018-P-0074,

and 2018-P-0075, 2019-Ohio-185, ¶ 33. Unless Father is able to demonstrate he was

“actually prejudiced”, the mere assertion Collier “was not properly served is an insufficient

basis upon which to award standing to [Father] to raise such error.” In re A.M., 2012-Ohio-

1024, at ¶ 18, citing In re L.A., 9th Dist. Summit No. 21531, 2003-Ohio-4790, ¶ 56.

{¶25} If Father believed Collier’s receipt of proper notice “was necessary to avoid

prejudice to [Father’s own] parental rights, [Father] could have proffered [his] position at

the hearing.” See, Matter of G.C.J., ¶ 34. Father failed to do so. Further, Father has
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 10

failed to demonstrate to this Court how he was prejudiced by LCJFS’s failure to serve

Collier with the motion for permanent custody. See, In re Villa, 3d Dist. Marion No. 9-01-

21, 2001 WL 1300763, *3 (Oct. 26, 2001). Accordingly, we find Father does not have

standing to challenge whether Collier received proper notice. Id.

{¶26} We also find Father has waived any error as a result LCJFS’s failure to

serve Collier. The magistrate dismissed Collier via order filed March 5, 2018. Father did

not file objections to the order. Having failed to properly object to the magistrate's March

5, 2018 order in accordance with Civ.R. 53(D)(3), Father has waived the right to assign

those issues as error on appeal. The trial court approved and adopted the magistrate’s

order via judgment entry filed March 6, 2018. Father did not appeal that judgment;

therefore, is barred from raising this argument herein.

{¶27} Father’s first assignment of error is overruled.

II, III

{¶28} We elect to address Father’s second and third assignments of error

together. In his second assignment of error, Father maintains the trial court’s decision

granting permanent custody of the Children to LCJFS was not supported by clear and

convincing evidence because LCJFS not only failed to prove the Children could not be

placed with him within a reasonable time or should not be placed with him, but also failed

to prove it was in the Children's best interest to terminate his parental rights. In his third

assignment of error, Father asserts LCJFS failed to make reasonable efforts to reunify

the family as LCJFS did not consider Father’s mental health diagnosis in formulating his

case plan, made no attempt to reunify the Children with Roger Collier, and failed to

investigate relative placement. We disagree.
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 11

{¶29} 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 (Feb. 10, 1982), Stark App. No. CA5758. 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 Constr. (1978), 54 Ohio St.2d 279.

{¶30} 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.

{¶31} 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
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 12

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

18, 1999.

{¶32} 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.

{¶33} 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.

{¶34} As set forth in our statement of the facts and case, supra, Father failed to

complete his case plan services. Father completed his psychological assessment. Based

upon the results, it was recommended Father undergo mental health counseling, but he

did not comply. Father claimed he was never informed of the recommendation. Father

did not take any medication for his schizophrenia or bipolar disorder, and did not attend

counseling for those conditions. Father revealed he experiences auditory and visual

hallucinations, which he suggested could be real. Father did not complete a substance

abuse assessment. Father prevented Veronica Harter from inspecting the home on a

regular basis. Harter conducted only two home visits as Father and Mother repeatedly
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 13

cancelled appointments. During her visit, Harter found no furniture or clothing for the

Children. Harter noted there were at least 6 animals living in the home and the home had

a strong odor of ammonia.

{¶35} Father attended parenting classes through Heartbeats. However, LCJFS

did not find the Heartbeats program sufficient based upon their concerns related to

Father. Father last visited the Children on January 4, 2019. Father and Mother

repeatedly cancelled visits at the last minute. Father and Mother were instructed to call

four hours prior to the visit if they had to cancel, but they did not comply and LCJFS

stopped the visits. Father did not attempt to contact the Children after January 4, 2019.

{¶36} The Children are together in the same foster home and have been in the

home since their removal from Father and Mother’s home. They have some

developmental delays for which they are receiving the appropriate services. The Children

are bonded to each other and to their foster parents. The foster parents wish to adopt

the Children.

{¶37} Harter made Father aware of the results of his psychological evaluation and

provided information as to where to Father was referred for mental health services,

despite his claim he was not informed of such. Although asked, neither Father nor Mother

provided LCJFS with the names of any relatives for potential placement. No relatives

contacted LCJFS requesting placement or custody of the Children. Roger Collier was not

the biological father of the Children; therefore, was dismissed as a party. LCJFS was not

required to pursue reunification.

{¶38} Based upon the foregoing, we find the trial court's decision to grant

permanent custody of the Children to LCJFS was supported by clear and convincing
Licking County, Case Nos. 2020 CA 00024 & 2020 CA 00025 14

evidence as LCJFS proved the Children could not be placed with Father within a

reasonable period of time or should not be placed with him and it was in the best interest

of the children to grant permanent custody to LCJFS. We further find LCJFS made

reasonable efforts to reunify the family.

{¶39} Father’s second and third assignments of error are overruled.

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

Division, is affirmed.

By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur