In re V.J.P. , 2021 Ohio 1778 ( 2021 )

[Cite as In re V.J.P., 2021-Ohio-1778.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: : OPINION
V.J.P., II, DEPENDENT CHILD :
CASE NO. 2020-L-123
:
:
:
Civil Appeal from the Lake County Court of Common Pleas, Juvenile Division.
Case No. 2019 DP 00613.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor; Kristi L. Winner and Sarah R. Hronek,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Appellee, Lake County Department of Job and Family
Services).
Josephine L. Begin, Manning & Clair, Attorneys at Law, 38040 Euclid Avenue,
Willoughby, OH 44094 (For Appellant, Cassandra Gore).
Maureen A. Sweeney, 11805 Girdled Road, Painesville, OH 44077 (Guardian ad litem).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Cassandra Gore (“Ms. Gore”), appeals the judgment of the Lake
County Court of Common Pleas, Juvenile Division, granting permanent custody of her
minor child, V.J.P., II (“V.P.”), to appellee, the Lake County Department of Job and Family
Services (“LCDJFS”).
{¶2} Ms. Gore contends that the trial court’s determination that it was in the best
interest of V.P. to grant permanent custody to LCDJFS was against the manifest weight
of evidence.
{¶3} After a thorough review of the record, we find that it contains substantial
competent and credible evidence supporting the trial court’s best-interest findings.
Therefore, the trial court’s best-interest determination is not against the manifest weight
of the evidence.
{¶4} Thus, we affirm the judgment of the Lake County Court of Common Pleas,
Juvenile Division.
Substantive and Procedural History
{¶5} Ms. Gore is the biological mother of V.P., and her fiancé, Andrew Pizzino
(“Mr. Pizzino”), is the child’s biological father. Ms. Gore and Mr. Pizzino are also the
biological parents of another child, who was born in May 2015. The trial court granted
permanent custody of this child to LCDJFS in August 2016.
Emergency/Temporary Custody
{¶6} Ms. Gore gave birth to V.P. on May 8, 2019. V.P. was born premature and
was treated in the neonatal intensive care unit for a period of time because of medical
complications. At the hospital, Ms. Gore and Mr. Pizzino got into an argument where Mr.
Pizzino threw food across the room and hospital security intervened.
{¶7} LCDJFS moved for and obtained emergency temporary custody of V.P. on
May 24, 2019, based on reported concerns regarding Ms. Gore’s and Mr. Pizzino’s mental
health, past history of significant domestic violence, and housing instability. V.P. was
placed in a certified foster home the next day.
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{¶8} LCDJFS filed a complaint in the trial court alleging that V.P. was a
dependent child. The trial court appointed counsel for Ms. Gore and Mr. Pizzino and
appointed Attorney Maureen Sweeney as the guardian ad litem (“GAL”) for V.P.
{¶9} Robin Suminguit (“Ms. Suminguit”) from LCDJFS was assigned as the
family’s case worker. She met with Ms. Gore and Mr. Pizzino to review the case plan,
which included the following goals for both of them: (1) initiating and completing a mental
health assessment with a qualified service provider and following all recommendations;
(2) participating in a parenting education program with a qualified service provider and
following all recommendations; and (3) finding appropriate, stable, safe, and long-term
housing.
{¶10} On July 25, 2019, the trial court held an adjudication hearing, at which Ms.
Gore and Mr. Pizzino agreed that V.P. was a dependent child. The trial court granted
temporary custody to LCDJFS and adopted the case plan as a court order.
Housing/Employment
{¶11} At the time of V.P.’s birth, Ms. Gore and Mr. Pizzino resided with Ms. Gore’s
sister in Mentor-on-the-Lake. After a physical altercation between Ms. Gore and her
niece, the couple moved in with a person they referred to as their “street mom” in
Painesville. The couple eventually had a verbal altercation with their “street mom,”
became homeless, and began living in a tent at an unidentified location in Lake County.
At one point, Ms. Gore and Mr. Pizzino separated romantically, and Ms. Gore’s new
boyfriend lived with both of them in the tent.
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{¶12} In late December 2019, Ms. Gore and Mr. Pizzino travelled to Xenia, Ohio,
to visit Mr. Pizzino’s family. Ms. Gore returned a few weeks later, but Mr. Pizzino decided
to stay in Xenia to live. In mid-January 2020, Ms. Gore also moved to Xenia.
{¶13} In Xenia, Ms. Gore and Mr. Pizzino moved in with Mr. Pizzino’s mother,
Mary Yount (“Ms. Yount”), who resided with her husband, as well as her husband’s
brother, wife, and two young children. The brother is a registered sex offender involving
a child under the age of 11.
{¶14} Ms. Yount eventually leased her own house, and Ms. Gore and Mr. Pizzino
moved in with her. Ms. Yount’s husband initially lived with them, but due to conflict with
Ms. Gore and Mr. Pizzino, he moved back in with his brother. Ms. Yount is the lessee
under the lease, and she pays the monthly rent. According to Mr. Pizzino, he helps with
paying bills.
{¶15} While living in Lake County, Mr. Pizzino was employed part-time at Arby’s,
and Ms. Gore was unemployed. After moving to Xenia, Mr. Pizzino became employed
part-time at McDonald’s. Ms. Gore also worked at McDonald’s but was terminated after
a co-worker found a syringe in the bathroom that Ms. Gore had used to inject herself with
heroin. Ms. Gore was subsequently terminated from employment at three other fast-food
restaurants in Xenia.
{¶16} Ms. Yount provides the primary financial support for the family in Xenia.
She previously worked full time for a substance abuse facility but lost her job and began
working at McDonald’s with Mr. Pizzino. Ms. Gore and Mr. Pizzino reported to Ms.
Suminguit that money was “very tight” and that they had to borrow money from their pastor
to travel from Xenia to Painesville to attend the permanent custody hearing.
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Mental Health Services
{¶17} Prior to the adoption of the case plan, Mr. Pizzino obtained a diagnostic
assessment from Kelly Christy (“Ms. Christy”) at Signature Health. He reported past
diagnoses of bipolar disorder and schizoaffective disorder. Ms. Christy recommended
that he follow up with a prescriber for a psychiatric evaluation and obtain individual
counseling.
{¶18} Ms. Christy was also Mr. Pizzino’s counselor for a period of time. She
indicated that his physical presence was consistent with someone who had a severe
mental illness, including poor hygiene, oddity in his behavior and presentation, and
emerging anger. During one session, she tried to understand why he and Ms. Gore were
not able to obtain or secure stable housing. Mr. Pizzino became angry and abruptly
walked out of the session. At another session, Mr. Pizzino appeared with a black eye,
indicating he had been “jumped” by somebody but did not press charges. He also
reported arguments between himself and Ms. Gore, including one argument that
escalated to the point where he pushed her.
{¶19} Ms. Gore also obtained a diagnostic assessment at Signature Health. The
assessment report listed tentative diagnoses of PTSD and schizoaffective disorder and
recommended that Ms. Gore receive a psychiatric/medication evaluation and counseling.
{¶20} Signature Health’s records indicate that both Ms. Gore and Mr. Pizzino
either cancelled or did not attend several scheduled appointments. In addition, both Ms.
Gore and Mr. Pizzino were hospitalized on separate occasions at Windsor Laurelwood
because of suicidal behavior, with Ms. Gore being hospitalized twice.
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{¶21} On November 8, 2019, LCDJFS filed motions to show cause in the trial court
based on Ms. Gore’s and Mr. Pizzino’s noncompliance with their mental health goals.
{¶22} Ms. Gore subsequently obtained a psychiatric evaluation at Signature
Health. The assessment report listed a past history of ADHD, multiple personality
disorder, schizoaffective, and paranoid schizophrenia. Ms. Gore reported seeing things
other people do not see and hearing voices that, at times, commanded her to harm herself
or others. The report also listed a past history of heroin use as well as a relapse after
four years of sobriety.
{¶23} On January 28, 2020, the trial court held a hearing on LCDJFS’s motions to
show cause. By this time, Ms. Gore and Mr. Pizzino had moved to Xenia and did not
appear. The trial court found them in contempt and ordered them to reinstate services in
Xenia within 14 days.
{¶24} Mr. Pizzino reinstated mental health services in Xenia at TCN Behavioral
Health (“TCN”) and medication/psychiatry at Soin Family Health (“Soin”). He successfully
completed a wellness group at TCN without further recommendation, and he was
prescribed medication at Soin. He did not contact Soin for follow up services until after
LCDJFS filed its motion for permanent custody.
{¶25} Ms. Gore did not reinstate services in Xenia within 14 days. After missing
a scheduled appointment for a diagnostic assessment, Ms. Gore left an “irate” message
at the provider’s office.
{¶26} On March 3, 2020, LCDJFS filed a motion to impose sentence upon Ms.
Gore. Ms. Gore eventually reinstated mental health services at TCN and
medication/psychiatry at Soin. At her mental health assessment at TCN, Ms. Gore
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reported her heroin relapse at McDonald’s and also tested positive for THC. Ms. Gore
was scheduled to participate in an intensive outpatient program (“IOP”) treatment plan,
seek outpatient psychiatric medication management services, and begin individual
counseling services.
{¶27} Ms. Gore subsequently missed 12 IOP sessions. After she was transferred
to a dual diagnoses group, she missed 11 out of 22 of those sessions. She also missed
appointments for her counseling sessions. She attended her appointments at Soin.
{¶28} According to TCN’s records, Ms. Gore reported hearing her deceased
mother’s voice “all the time” and once shared that she had not been taking her
medications. In one report, the provider wrote, “Client appears to have few healthy living
skills or coping skills and insight is limited.”
Visitation
{¶29} When Ms. Gore and Mr. Pizzino lived in Lake County, they had in-person
visitation time with V.P. twice a week. After moving to Xenia, Ms. Gore and Mr. Pizzino
visited V.P. in-person on two occasions, in March and August 2020, when they were in
Lake County for court hearings. Ms. Gore and Mr. Pizzino do not own a vehicle or have
driver’s licenses.
{¶30} LCDJFS suspended in-person visits due to COVID-19 and offered virtual
visits. Ms. Gore and Mr. Pizzino participated in virtual visits with V.P., which were held
once a week for 10 to 15 minutes and were monitored by V.P.’s certified foster parents.
Due to V.P.’s young age, he was not able to meaningfully communicate. According to
Ms. Suminguit, Ms. Gore and Mr. Pizzino did not have enough in-person visits for her to
say that V.P. developed a bond or attachment with them.
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Parenting Skills Education
{¶31} According to Ms. Suminguit, hands-on parenting was key for Ms. Gore and
Mr. Pizzino because they had not cared for a baby in quite some time. When Ms. Gore
and Mr. Pizzino lived in Lake County, Ms. Suminguit referred them to Karla Mendez (“Ms.
Mendez”) from Crossroads Health (“Crossroads”) for instruction on parenting skills, which
occurred during their visitation time with V.P.
{¶32} When Ms. Mendez became involved, V.P. was two months old. She
provided Ms. Gore and Mr. Pizzino with information regarding basic infant care, such as
reading V.P.’s cues and meeting his basic needs. Both Ms. Suminguit and Ms. Mendez
reported that it was difficult for Ms. Gore and Mr. Pizzino to read V.P.’s cues. During one
of V.P.’s feedings, Ms. Gore would not remove V.P.’s bottle even though he did not want
to take it and milk was spilling out the side of his mouth.
{¶33} Both Ms. Suminguit and Ms. Mendez also reported concerning behavior
during these sessions. On one occasion, Ms. Gore was swinging V.P. up and down and
accidentally hit his head on the wall. On other occasions, Ms. Gore became aggressive
and raised her voice with Ms. Mendez during her instruction. Ms. Gore once became so
upset with Ms. Mendez or Ms. Suminguit that she asked Mr. Pizzino to take V.P. because
she did not want to accidentally hurt him.
{¶34} Ms. Mendez and Ms. Suminguit also had to instruct Ms. Gore to allow Mr.
Pizzino to have some time with V.P. so he could also learn the parenting skills.
{¶35} Ms. Mendez concluded that her parenting education with Ms. Gore and Mr.
Pizzino was not successful because she did not see them put the information she
provided into practice during any of the visits unless prompted or suggested. In addition,
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despite V.P.’s development, Ms. Gore and Mr. Pizzino continued to treat him as if he were
a two-month-old. Ms. Mendez also did not observe the couple putting V.P.’s needs over
their own personal interests.
{¶36} Ms. Gore and Mr. Pizzino had not completed the parenting services goal in
their case plan prior to moving to Xenia. Ms. Suminguit provided Ms. Gore a list of service
providers in Xenia.
{¶37} Ms. Gore contacted Amber Benton (“Ms. Benton”) from Family and Children
First to enroll in its six-week parenting class. Due to COVID-19, the classes were held
on Zoom for an hour as opposed to the typical two-hour, in-person classes. As a result,
the program’s attendance policies were very strict.
{¶38} Ms. Gore and Mr. Pizzino participated in the first class. According to Ms.
Benton, Ms. Gore was very engaged. Mr. Pizzino appeared to be lying down and rolled
his eyes during portions of the class.
{¶39} Ms. Gore attended the second class but indicated that Mr. Pizzino could not
attend because he was working. Ms. Benton informed her that it was Mr. Pizzino’s
responsibility to call if he was not going to attend. Ms. Gore became very upset, used
profanity, and disconnected the Zoom call.
{¶40} Ms. Gore later called Children and Family First to re-enroll in the classes.
Ms. Benton’s supervisor was not willing to permit Ms. Gore and Mr. Pizzino to return to
the class. Ms. Gore became very upset, began shouting, and used profanity. Ms. Gore
and Mr. Pizzino did not complete a different parenting course in Xenia.
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V.P.’s Foster Placement
{¶41} V.P. has resided with the same certified foster parents since he was two
weeks old. V.P. initially required numerous doctors’ appointments but has no current
health issues. V.P.’s foster parents have also held visits between V.P. and his sibling.
V.P.’s foster parents intend to adopt him in the event LCDJFS obtains permanent custody.
According to Ms. Suminguit, V.P. appears to have bonded with his foster parents.
Permanent Custody Proceedings
{¶42} In August 2020, LCDJFS filed a motion for permanent custody of V.P.
{¶43} The GAL filed a report, findings, and recommendation, in which she
concluded that it would be in V.P.’s best interest to grant permanent custody to LCDJFS.
{¶44} The trial court held an evidentiary hearing on November 16, 2020. LCDJFS,
Ms. Gore, and Mr. Pizzino all appeared with their respective counsel, and the GAL also
appeared.
{¶45} LCDJFS presented the testimony of Ms. Suminguit from LCDJFS; Ms.
Christy from Signature Health; Ms. Mendez from Crossroads; Ms. Benton from Family
and Children First; and one of V.P.’s certified foster parents. LCDJFS also submitted
certified copies of Ms. Gore’s and Mr. Pizzino’s medical records and the prior journal entry
terminating the couple’s parental rights to V.P.’s sibling.
{¶46} Ms. Suminguit testified that it would be in V.P.’s best interest to grant
permanent custody to LCDJFS due to Ms. Gore’s and Mr. Pizzino’s inconsistencies with
their case plan goals. She reported concerns regarding the couple’s ability to keep
appointments and take care of their mental health so that they are stable enough to care
for V.P., as well as their lack of parenting skills, financial stability, and bonding and
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attachment with V.P. She acknowledged that Ms. Gore’s and Mr. Pizzino’s current
housing appeared to be appropriate and that they had some supplies for V.P.
{¶47} Ms. Gore and Mr. Pizzino both testified at the hearing.
{¶48} Ms. Gore testified that it would be in V.P.’s best interest to come home with
Mr. Pizzino and her. She stated that she and Mr. Pizzino had “grown up enough” to take
care of V.P.; their house is suitable; they have supplies, including a car seat, crib, clothes,
diapers, and shoes, although she acknowledged that they forgot to bring the car seat with
them; and they have food stamps to obtain food for V.P. Ms. Gore indicated that her prior
noncompliance with the case plan occurred as a result of medical reasons and work
commitments.
{¶49} Mr. Pizzino testified that he would like to take V.P. home with him that day.
He stated that he and Ms. Gore have adequate space and income, including assistance
from their church and Ms. Yount. When asked why he did not comply with his case plan,
Mr. Pizzino responded that he did the best he could while trying to work as much as
possible to save money.
{¶50} The GAL did not provide testimony but indicated that she stood by the
recommendation in her report.
{¶51} Following closing arguments, the trial court issued its ruling from the bench,
finding by clear and convincing evidence that it was in the best interest of V.P. that
permanent custody be granted to LCDJFS and granting LCDJFS’s motion for permanent
custody.
{¶52} The trial court subsequently filed a lengthy judgment entry in which it set
forth its summary of the evidence and made statutory findings. The trial court found by
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clear and convincing evidence, based upon the testimony and evidence presented and
the recommendation of the GAL, that it was in the best interest of V.P. that permanent
custody be granted to LCDJFS. Accordingly, the trial court granted LCDJFS’s motion for
permanent custody, committed V.P. to the permanent custody of LCDJFS, and
completely and permanently divested Ms. Gore’s and Mr. Pizzino’s parental rights.
{¶53} Ms. Gore and Mr. Pizzino both filed notices of appeal.1 Ms. Gore presents
the following assignment of error for our review:
{¶54} “The trial court’s finding that V.P. II’s best interests would be served by
granting the Lake County Department of Job and Family Services permanent custody of
him was against the manifest weight of evidence because a legally secure permanent
placement for V.P. II could have been achieved without a grant of permanent custody to
DJFS.”
Standard of Review
{¶55} A reviewing court generally will not disturb a trial court’s permanent custody
decision unless the decision is against the manifest weight of the evidence. In re N.M.P.,
2018-Ohio-5072, 126 N.E.3d 200, ¶ 54 (11th Dist.). To apply this standard, the appellate
court weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed, and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
1. Mr. Pizzino is the appellant in the companion case of In re V.J.P., II, 11th Dist. Lake No. 2020-L-124.
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{¶56} “Judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
Legal Principles
{¶57} It is well established that a parent’s right to raise a child is an essential and
basic civil right. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). The
permanent termination of parental rights has been described as “‘the family law equivalent
of the death penalty in a criminal case.’” Id., quoting In re Smith, 77 Ohio App.3d 1, 16,
601 N.E.2d 45 (6th Dist.1991). Based upon these principles, the Supreme Court of Ohio
has determined that a parent must be afforded every procedural and substantive
protection the law allows. Id.{¶58} While the rights of a parent to his or her child are fundamental, they are
always subject to the ultimate welfare of the child, which is the polestar or controlling
principle to be observed. In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034(1979). Although the termination of the rights of a natural parent should occur as a last
resort, termination is expressly authorized when necessary for the welfare of the child. In
re L.M.R., 11th Dist. Lake No. 2016-L-096, 2017-Ohio-158, ¶ 33.
Statutory Requirements
{¶59} The trial court must apply a two-pronged analysis when ruling on a motion
for permanent custody. In re Krems, 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-
2449, ¶ 33. The trial court may grant permanent custody of a child to the movant if the
court determines at the hearing, by clear and convincing evidence, that (1) one of the
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factors enumerated in R.C. 2151.414(B)(1)(a) through (e) applies, and (2) it is in the best
interest of the child. R.C. 2151.414(B)(1). “[C]lear and convincing evidence is more than
a mere preponderance of the evidence; it is evidence sufficient to produce in the mind of
the trier of fact a firm belief or conviction as to the facts sought to be established.” In re
Krems at ¶ 36.
{¶60} In determining the best interest of a child, the trial court shall consider “all
relevant factors, including, but not limited to, the following:
{¶61} “(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;
{¶62} “(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;
{¶63} “(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 * * * for twelve
or more months of a consecutive twenty-two-month period * * *;
{¶64} “(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;
{¶65} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.” R.C. 2151.414(D)(1)(a)-(e).
{¶66} Also relevant here is R.C. 2141.414(E)(11), which involves whether “[t]he
parent has had parental rights involuntarily terminated with respect to a sibling of the child
pursuant to this section * * *, and the parent has failed to provide clear and convincing
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evidence to prove that, notwithstanding the prior termination, the parent can provide a
legally secure permanent placement and adequate care for the health, welfare, and safety
of the child.”
{¶67} The Supreme Court of Ohio has held that “[t]he statute requires a weighing
of all the relevant factors.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857
N.E.2d 532, ¶ 64. However, “[t]here is not one element that is given greater weight than
the others.” Id. at ¶ 56.
The Trial Court’s Judgment
{¶68} The trial court made the following statutory findings in its judgment entry:
{¶69} Pursuant to R.C. 2151.414(B)(1)(d), V.P. has been in the temporary custody
of LCDJFS for at least 12 out of the last 22 months.
{¶70} Pursuant to R.C. 2151.419(A)(2)(e), LCDJFS was not required to make
reasonable efforts to prevent the removal of the child from the child’s home, eliminate the
continued removal of the child from the child’s home, and return the child to the child’s
home, since Ms. Gore and Mr. Pizzino had their parental rights terminated with respect
to V.P.’s sibling. However, LCDJFS did make reasonable efforts by preparing a case
plan, with which Ms. Gore and Mr. Pizzino consistently failed to comply.
{¶71} Pursuant to R.C. 2151.414(D)(1), it is in the best interest of V.P. that
permanent custody be granted to LCDJFS based on a consideration of all relevant factors
set forth in subsections (a) through (e).
{¶72} Under subsection (a), V.P. does not have a strong relationship with Ms.
Gore and Mr. Pizzino due to them residing in Xenia for several months, resulting in few
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in-person visits and limited video visitation. V.P. is strongly bonded to his foster parents,
who have been his caretakers since his discharge from the hospital after his birth.
{¶73} Under subsection (b), V.P. does not have the skills to communicate his
thoughts or feelings regarding permanent custody due to his age. However, he has
established a bond with his caregivers, with whom he has resided since his release from
the hospital. In addition, the GAL has recommended that granting permanent custody to
LCDJFS is in V.P.’s best interest.
{¶74} Under subsection (c), LCDJFS was granted emergency custody of V.P.
while he was in the hospital. Thereafter, V.P. was placed in a certified foster home, where
he has remained since his placement.
{¶75} Under subsection (d), permanency is unable to be achieved without
permanent custody being granted to LCDJFS. V.P. is less than two years old; is
completely dependent upon his caregivers to provide his basic needs; requires constant
supervision to stay safe; and needs a stable and permanent home to keep him safe and
consistently provide for all of his needs. There are no relatives who are willing, able, or
appropriate to care for V.P., and an identified family will be able to ensure all his needs
are being met.
{¶76} There have been continued concerns regarding Ms. Gore’s and Mr.
Pizzino’s follow through with mental health services and their ability to provide basic
needs for themselves and V.P. Ms. Gore’s and Mr. Pizzino’s income is unstable, and
they rely heavily on Ms. Yount for housing and financial support. From May to December
2019, they were homeless and living in a tent. Mr. Pizzino has been working part-time.
They are not able to support V.P. by providing him with food, shelter, clothing, or other
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necessities. Their mental health remains a concern, especially due to Ms. Gore’s
inconsistency in mental health services throughout the entirety of the case.
{¶77} Under subsection (e), the trial court found that R.C. 2151.414(E)(11) was
applicable. Neither Ms. Gore nor Mr. Pizzino have shown, notwithstanding the prior
termination of their parental rights to V.P.’s sibling, that they are able to provide a legally
secure placement for V.P. and that they have the ability to provide adequate care for
V.P.’s health, welfare, and safety.
{¶78} Ms. Gore does not dispute the trial court’s determination that R.C.
2151.414(B)(1)(d) was applicable, i.e., that V.P has been in the temporary custody of
LCDJFS for 12 or more months of a consecutive 22-month period. Rather, Ms. Gore
disputes the trial court’s best-interest determination.
Legally Secure Permanent Placement
{¶79} Ms. Gore challenges the trial court’s best-interest findings under R.C.
2151.414(D)(1)(d) and R.C. 2141.414(E)(11).
{¶80} As indicated, R.C. 2151.414(D)(1)(d) requires the trial court to consider
“[t]he 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.” R.C.
2141.414(E)(11) requires the trial court to consider whether “[t]he parent has had parental
rights involuntarily terminated with respect to a sibling of the child pursuant to this section
* * *, and the parent has failed to provide clear and convincing evidence to prove that,
notwithstanding the prior termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety of the child.”
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{¶81} Ms. Gore contends that she and Mr. Pizzino established these factors in
their favor by demonstrating: (1) suitable housing; (2) financial support from community,
family, and government programs; (3) consistent employment on Mr. Pizzino’s part and
consistent efforts to find the right position for her; (4) enrollment in and regular attendance
at mental health and medication programs from which they have never been expelled; (5)
experience with parenting education; and (6) placement that included “food, shelter, and
a sufficient collection of baby supplies.”
{¶82} Despite Ms. Gore’s positive characterization, the record contains
substantial competent and credible evidence supporting the trial court’s findings under
R.C. 2151.414(D)(1)(d) and R.C. 2141.414(E)(11).
{¶83} As the trial court noted, V.P. was less than two years old at the time of the
permanent custody hearing and required a “stable and permanent” home to keep him
safe and to “consistently” provide for all of his needs. The testimony and documentary
evidence described above establishes that Ms. Gore and Mr. Pizzino have a long history
of instability and inconsistency in housing, employment, and mental health treatment,
which resulted in the prior termination of their parental rights to V.P.’s sibling and a grant
of emergency and temporary custody of V.P. to LCDJFS shortly after his birth. While
more recent improvements in Ms. Gore’s and Mr. Pizzino’s life circumstances are
certainly worthy of acknowledgment and commendation, they do not reflect the stability
required to establish a legally secure permanent placement for a young child such as V.P.
or a long-term ability to adequately provide for his health, welfare, and safety.
{¶84} For instance, while she and Mr. Pizzino resided in Lake County, Ms. Gore
exhibited significant symptoms of mental illness and was hospitalized on two separate
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occasions for suicidal thoughts or behavior. Although Ms. Gore eventually reinstated
mental health services in Xenia, she consistently missed scheduled appointments. Her
recent medical records demonstrate continuing struggles with her significant mental
health issues and resistance to following treatment recommendations. The fact that Ms.
Gore has not been expelled from any mental health programs does not compel a contrary
conclusion.
{¶85} Although Ms. Gore and Mr. Pizzino appeared to have suitable housing at
the time of the hearing, it followed a substantial period of time in which they were
homeless and living in a tent in Lake County. After moving to Xenia, the couple lived in
a home with a registered sex offender for several months. In addition, the couple’s
housing inconsistency in Lake County was motivated, at least in part, by conflict with other
individuals. After Ms. Gore and Mr. Pizzino moved into their current home, Ms. Yount’s
husband moved out due to conflicts with them, which reflects continuing discord.
{¶86} Ms. Gore has been consistently unemployed in Lake County and in Xenia.
She was terminated from employment at several fast-food restaurants in Xenia for
inappropriate or irresponsible behavior, including one instance in which she relapsed on
heroin while on the premises. This evidence reflects the existence of more serious issues
than a mere failure to find the “right position.”
{¶87} Although Mr. Pizzino has been consistently employed in Lake County and
in Xenia, his employment has consisted of part-time work at fast-food restaurants.
Therefore, the couple relies on food stamps and on Ms. Yount to pay the rent for their
current housing. At the time of the hearing, however, Ms. Yount had recently lost her job
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and began working at McDonald’s. The couple had to borrow funds from their pastor to
make the trip to Lake County.
{¶88} Accordingly, despite noticeable improvements, the evidence supports a
conclusion that material aspects of Ms. Gore’s and Mr. Pizzino’s life circumstances
remained unstable.
{¶89} Ms. Gore also does not acknowledge the seriousness of her failure to
successfully complete parenting skills education. According to Ms. Gore, she was “just a
six-week online attendance certificate away from fully satisfying that case plan goal.”
{¶90} While the parents’ progress is measured in part by their completion of the
case plan goals, the case plan is not the only measure by which a court determines
whether to grant a motion for permanent custody. In re J.H., 11th Dist. Lake No. 2012-L-
126, 2013-Ohio-1293, ¶ 103. The main issue considered by the courts is not whether the
parent has substantially complied with the case plan, but, rather, whether the parent has
substantially remedied the conditions that caused the child’s removal. Id.{¶91} Ms. Mendez and Ms. Suminguit both testified that they had serious
concerns regarding Ms. Gore’s and Mr. Pizzino’s abilities to care for a young child. After
moving to Xenia, the couple no longer participated in hands-on parenting education,
which the testimony indicated they needed the most. In addition, the couple did not
complete the online parenting class in Xenia because of Mr. Pizzino’s failure to attend
and Ms. Gore’s angry outburst toward the service provider after being reminded of the
attendance requirements.
{¶92} Ms. Gore further contends that the trial court’s findings are incorrect based
on its reliance on the GAL’s recommendation. According to Ms. Gore, the GAL’s
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conclusion that she is not “currently able to provide appropriate and necessary care for
[V.P.] and will not be in the reasonable future” is not accurate based on her circumstances
at the time of the permanent custody hearing.
{¶93} As indicated, despite some noticeable improvement in Ms. Gore’s and Mr.
Pizzino’s life circumstances by the time of the hearing, the evidence supports the GAL’s
conclusion. Accordingly, the trial court’s reliance on the GAL’s recommendation did not
render its findings against the manifest weight of the evidence.
{¶94} Finally, Ms. Gore contends, in the alternative, that the couple established
that they would be able to provide a legally secure permanent placement for V.P. and
adequate care for his health, welfare, and safety “in a very reasonable amount of time.”
{¶95} While we do not doubt the sincerity of Ms. Gore’s belief, this court has
repeatedly emphasized the need to provide permanence for children. See In re J.L.S.,
11th Dist. Portage Nos. 2020-P-0053 & 2020-P-0054, 2020-Ohio-5143, ¶ 33. Speculative
future plans do not justify failure to terminate parental rights when it is in the children’s
best interest. Id. The trial court was not required to deny V.P. the permanency that he
needs, especially at such a young age, in order to provide Ms. Gore and Mr. Pizzino
additional time to prove that they can provide a legally secure permanent placement for
him. See In re N.S.N., 4th Dist. Washington Nos. 15CA6, et al., 2015-Ohio-2486, ¶ 50.
The law also does not require the court to experiment with a child’s best interest at the
risk of great detriment or harm. See id.{¶96} Accordingly, the trial court’s best-interest findings under R.C.
2151.414(D)(1)(d) and R.C. 2141.414(E)(11) were not against the manifest weight of the
evidence.
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Ms. Gore’s Reply Brief
{¶97} In her reply brief, Ms. Gore also challenges the trial court’s best-interest
findings under R.C. 2151.414(D)(1)(a) and (b). It is well-established that a party may not
advance new arguments in its reply brief. Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d
374, 2010-Ohio-1468, 928 N.E.2d 695, ¶ 21. Given the serious nature of these
proceedings and the gravity of the outcome, however, we will consider Ms. Gore’s
additional arguments.
The Child’s Interaction/Interrelationship
{¶98} R.C. 2151.414(D)(1)(a) requires the trial court to consider “[t]he 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.”
{¶99} According to Ms. Gore, the trial court “surmised” that V.P. could not have
formed any relationship with her via video chat due to his age and that he favored the
bond with his foster parents. Ms. Gore contends that the trial court should have instead
viewed the “strength” of V.P.’s bonds “in the context of his age” and “the resiliency toward
change that accompanies it.”
{¶100} The trial court’s findings are supported by direct evidence from the hearing
in the form of testimony from Ms. Suminguit and V.P.’s foster mother. By contrast, Ms.
Gore’s resiliency theory was not presented in any evidentiary form.
{¶101} Ms. Gore also contends that the testimony of Ms. Suminguit and V.P.’s
foster mother was “conclusory” and “anecdotal” and thus not “competent or credible.”
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{¶102} The credibility of witnesses is primarily for the trier of fact. In re D.H., 11th
Dist. Ashtabula No. 2017-A-0081, 2018-Ohio-630, ¶ 18. According to the Supreme Court
of Ohio, the trial court “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). “This is even more
crucial in a child custody case, where there may be much evident in the parties’ demeanor
and attitude that does not translate to the record well.” (Emphasis sic.) Id. at 419.
{¶103} The trial court appears to have determined that the uncontested testimony
of Ms. Suminguit and V.P.’s foster mother was credible. Ms. Gore has not articulated the
basis for her assertions and, thus, has not demonstrated how the trial court lost its way in
its credibility determinations.
{¶104} Ms. Gore further contends that the trial improperly assigned more weight to
the testimony of Ms. Suminguit and V.P.’s foster mother than to the fact that Ms. Gore
had a “perfectly suitable living arrangement” for V.P.
{¶105} In addition to credibility, the weight to be given to the evidence is also
primarily for the trier of fact. In re D.H. at ¶ 18. Further, the premise underlying Ms.
Gore’s contention is incorrect. As discussed above, the trial court did not find that Ms.
Gore’s “living arrangement” for V.P. was “perfectly suitable.”
{¶106} Accordingly, the trial court’s best-interest finding under R.C.
2151.414(D)(1)(a) was not against the manifest weight of the evidence.
The Child’s Wishes
{¶107} Finally, Ms. Gore challenges the trial court’s best-interest finding under R.C.
2151.414(D)(1)(b), which requires the trial court to consider “[t]he wishes of the child, as
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expressed directly by the child or through the child’s guardian ad litem, with due regard
for the maturity of the child.”
{¶108} Ms. Gore acknowledges that V.P.’s young age prevented him from
comprehending the proceedings or expressing his wishes. Nonetheless, Ms. Gore
contends that the trial court should not have considered the GAL’s recommendation under
this factor because her report was not admitted as an exhibit at the hearing. In support,
Ms. Gore cites Sup.R. 48.06(C)(2), a Rule of Superintendence for the Courts of Ohio,
which provides that “[t]he court shall consider the recommendation of the guardian ad
litem in determining the best interest of the child only when the report or a portion of the
report has been admitted as exhibit.”
{¶109} Sup.R. 48.06 was not adopted until January 1, 2021, which was subsequent
to the permanent custody hearing in this case held in November 2020.
{¶110} Further, Ms. Gore quotes the rule out of its proper context. Sup.R. 48.06(C)
expressly applies to GAL reports in “proceedings involving the allocation of parental rights
and responsibilities, custody, and visitation.” (Emphasis added.) Sup.R. 48.06(C)(1). By
contrast, Sup.R. 48.06(B) applies to GAL reports in “abuse, neglect, dependency, unruly,
and delinquency cases and actions to terminate parental rights,” and it does not contain
this requirement. (Emphasis added.) Sup.R. 48.06(B)(1).
{¶111} Former Sup.R. 48(F)(2), which was in effect at the time of the hearing,
contained the same requirement as Sup.R. 48.06(C)(2). However, Sup.R. 48(F)(2)
expressly applied to “domestic relations proceedings involving the allocation of parental
rights and responsibilities.” (Emphasis added.) Id. By contrast, Sup.R. 48(F)(1) applied
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to GAL reports in “juvenile abuse, neglect, and dependency cases and actions to
terminate parental rights,” and it did not contain this requirement. (Emphasis added.)
{¶112} Accordingly, the trial court was permitted to consider the GAL’s report in
support of its best-interest finding under R.C. 2151.414(D)(1)(b).
{¶113} In sum, our review of the record demonstrates that the trial court considered
all required statutory factors and that substantial competent, credible evidence supports
its best-interest findings. Therefore, the trial court’s best-interest determination was not
against the manifest weight of the manifest.
{¶114} Ms. Gore’s sole assignment of error is without merit.
{¶115} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas, Juvenile Division, granting permanent custody of V.P. to LCDJFS is
affirmed.
CYNTHIA WESTCOTT RICE, J,
MATT LYNCH, J.,
concur.
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