In re J.P. , 2023 Ohio 1264 ( 2023 )

[Cite as In re J.P., 2023-Ohio-1264.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. W. Scott Gwin P.J.
Hon. John W. Wise, J.
Hon. Andrew J. King, J.
J.P.
Case No. 2022 AP 11 0050
Abused and Dependent Child OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 22 JN 00083
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2023
APPEARANCES:
For Appellant For Appellee Tuscarawas JFS
LISA CALDWELL LISA VITALE ARNOLD
203 Fair Ave. NE 389 16th Street SW
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
For Appellee Joseph Neff Guardian ad Litem
DONOVAN R. HILL MARY WARLOP
112 Market Avenue North 116 Cleveland Avenue NW, Suite 500
Canton, Ohio 44702 Canton, Ohio 44702
For Child
TARA WRIGHT TIMBERLAKE
122 S. Wooster Ave.
Strasburg, Ohio 44680
[Cite as In re J.P., 2023-Ohio-1264.]
Wise, John, J.
{¶1} Appellant Y.P. appeals the decision of the Tuscarawas County Court of
Common Pleas, Juvenile Division, which found her child J.P. to be a dependent and
neglected child and granted Tuscarawas County Job & Family Services (“the Agency”)
permanent custody of J.P. The following facts give rise to this appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} J.P. was born on March 3, 2022 to Appellant and J.N. (“Father”).
{¶3} The Agency became involved with this family during Appellant’s previous
pregnancy when concerns of Appellant’s drug abuse were raised. Both Appellant and
Father attempted to work a case plan, but ultimately failed and the Agency was granted
permanent custody of J.P.’s older sibling.
{¶4} On March 15, 2022, the Agency again became involved with the family
when upon birth, J.P. tested positive for cocaine.
{¶5} On April 13, 2022, an adjudication hearing was held. Appellant stipulated to
the complaint as amended, and the Court accepted her stipulation finding J.P. to be
abused and dependent.
{¶6} On May 11, 2022, a disposition hearing was held. The agency presented a
case plan to Appellant and Father which was agreed to and made an order of the Court.
Appellant was in drug treatment at the time and was not added as a participant on the
case plan.
{¶7} After successfully completing treatment, Appellant worked the case plan.
{¶8} On August 10, 2022, the Agency filed a Motion to Modify Prior Disposition
to Permanent Custody.
{¶9} On September 27, 2022, Appellant filed a Motion to Extend the Temporary
Custody of the Agency.
{¶10} On November 1, 2022, the trial court held a hearing on both the Motion to
Extend Temporary Custody of the Agency and the Motion to Modify Prior Disposition to
Permanent Custody.
{¶11} At the hearing the Agency called Skyler Smolak as its first witness. Mr.
Smolak testified the Agency became involved with this case when J.P. tested positive for
cocaine at birth. Appellant’s first residence was at River Haven to be treated for drug
abuse. She then spent one night with a Robert Morton, who kicked her out for still talking
with Father. She then provided the Agency with a New Philadelphia address at which they
could never make contact. Finally, she provided the address where she is living now.
{¶12} During the plan Appellant tested positive for cocaine on April 13, 2022 and
July 18, 2022. On April 13, 2022, Appellant still resided at River Haven and was adamant
she would not test positive for cocaine. On July 18, 2022, Appellant also took a drug
screen for Cobra Court, and she tested negative for cocaine on that urine test. On March
14, 2022, March 29, 2022, April 19, 2022, May 10, 2022, June 29, 2022, July 20, 2022,
July 27, 2022, August 3, 2022, August 31, 2022, and September 9, 2022, she tested
negative for all substances. Mr. Smolak puts little credibility in the urine tests at River
Haven and for Cobra Court, as you are able to flush the substances from your system.
However, the Agency’s saliva test goes to the metabolite level which cannot be faked.
{¶13} Father has a criminal history with two current pending cases; two fifth-
degree felonies for breaking and entering and theft on June 3, 2022, and a fifth-degree
grand theft of a motor vehicle on September 7, 2022. Father was incarcerated three times
during the pendency of the case plan. Father was tested for drugs on April 13, 2022, April
29, 2022, May 11, 2022, and July 18, 2022. Father tested negative for all substances.
{¶14} On July 18, 2022, while in court reviewing this matter, Mr. Smolak asked
Appellant if she had spoken with Father during his time in jail or while out of jail. Appellant
answered in the negative. Mr. Smolak determined that to be a lie, as he had twenty-three
jail house recordings of phone calls between Appellant and Father.
{¶15} J.P. is currently thriving in foster care. He is up to date on all vaccinations
and medical appointments. He is doing well physically and should walk and talk soon. He
has bonded with his foster parents and his half-sibling.
{¶16} Appellant is currently participating in supervised visits with J.P. at the
Agency for an hour, once a week. They go well. She brings everything required for the
visits. Father has never visited J.P.
{¶17} The Agency’s concerns with reunifying Appellant and J.P. are Appellant’s
positive drug screens which she does not take responsibility for, the permanent custody
of her previous child, which closely resembles this case, and her relationship with Father.
She had an opportunity to be honest and up front about the relationship, and instead
chose to lie about it. The relationship is a concern because due to the child’s vulnerability
as an infant, J.P. would need a safe environment. Appellant and Father’s relationship
raises concerns that the home would not be a safe place for J.P.
{¶18} The Agency’s concerns with reunifying Appellant and Father are Father’s
extensive criminal history. He has been in and out of incarceration several times, and he
has never shown stable housing.
{¶19} The Agency looked into J.P.’s grandfather as a potential placement, but he
was rejected due to his criminal history. Father gave his father as a potential placement
option, but he stated he was unable to take care of J.P. due to poor health. Robert Morton
was brought up by Appellant as a possible placement option, but he told the agency he
was unable to take care of J.P.
{¶20} On cross-examination, Mr. Smolak agreed that it was reasonable for
Appellant to take time to save up for housing after leaving River Haven. She voluntarily
participated in the case plan by attending counseling services through Ohio Guidestone,
completed a psychological evaluation, completed the Agency’s parenting education
course successfully, and has had good visits with J.P.
{¶21} Next, Jerome Reed testified he is currently employed as a certifying
scientist at Forensic Fluids Laboratories in Kalamazoo, Michigan. He stated there is a
zero percent chance that a confirmed screen could be a false positive. The difference
between a urine test and the saliva test the Agency does is the window of detection. The
oral test would test positive from fifteen minutes to about three days, where it takes hours
to show up in the urine test.
{¶22} Mary Warlop then testified she is the Guardian ad Litem for J.P. Ms. Warlop
indicated she has concerns about J.P. being placed with Appellant. Appellant has a
criminal history, has lost permanent custody of one child, J.P. was born testing positive
for cocaine, her relationship with Father, and Appellant appears to still be struggling with
sobriety.
{¶23} Currently, J.P. lives in a clean and comfortable home. All of his needs are
being met. He is a happy child. He has bonded with the foster family and half sibling. He
reaches to them when he needs things. J.P. is developing well, seems bright, and
maintains good eye contact. He is healthy and well fed. It is Ms. Warlop’s opinion that the
court grant permanent custody to the Agency.
{¶24} On cross-examination, Ms. Warlop noted Appellant’s change in behavior
from her pervious case to now. She did not participate in the previous case plan and went
missing for a period of time during that case plan. She has remained involved,
continuously visited with J.P., and even completed non-required services.
{¶25} The Agency then rested.
{¶26} Appellant called her first witness, Danelle German. Ms. German testified
she works at Ohio Guidestone as a therapist and supervisor. She is a licensed social
worker and dependency counselor. Appellant was very active in therapy and making
appropriate progress. Appellant was adamant she did not use cocaine. After her positive
tests she stopped brushing her teeth before meeting with the Agency because she feared
cocaine had gotten in her toothpaste.
{¶27} Next, Appellant called Julie Laughlin as a witness. Ms. Laughlin testified
she has been an officer with the Cobra Court since 1998. She was assigned as
Appellant’s probation officer. Appellant was tested fifty-nine times by Ms. Laughlin and
received negative results every time.
{¶28} Finally, Appellant testified she has been living at the same address for six
months, that she has been sober for ten months, and that she has been cutting off contact
with Father. Her visits with J.P. have been going well, and she wants an extension to
show she can provide a stable, safe, and sober home for J.P.
{¶29} On November 4, 2022, Appellant granted the Agency’s Motion and awarded
permanent custody of J.P. to the Agency.
ASSIGNMENT OF ERROR
{¶30} Thereafter, Appellant timely filed her notice of appeal and raises the
following Assignment of Error:
{¶31} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS THE AGENCY FAILED
TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD COULD NOT
BE PLACED WITH MOTHER IN A REASONABLE AMOUNT OF TIME, AND THAT THE
AWARD OF PERMANENT CUSTODY WAS IN THE CHILD’S BEST INTEREST.”
I.
{¶32} In Appellant’s sole Assignment of Error, the trial court erred when finding
J.P. could not be placed with Appellant in a reasonable amount of time, and that awarding
permanent custody to the Agency was not in J.P.’s best interest. We disagree.
{¶33} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. Stark App. No. 5758, 1982 WL 2911, *1. 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. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶34} 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.
{¶35} 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.
{¶36} 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
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.
{¶37} 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.
{¶38} Here, R.C. §2151.414(B)(1)(a) applies as the trial court found that J.P. is
not abandoned or orphaned and cannot be placed with either of J.P.’s parents within a
reasonable time.
{¶39} 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.
{¶40} The trial court found that Appellant has previously lost custody of her older
child, she has a criminal history and a history of drug abuse, has tested positive for
cocaine during the pendency of J.P.’s case plan, and has maintained a relationship with
Father despite his criminal history, incarceration, and pending criminal charges. The
Agency has concerns over the safety of the home should Appellant and Father maintain
a relationship. Appellant lied about maintaining contact with Father after Father went to
jail.
{¶41} Father is currently incarcerated and at the time of the hearing had
outstanding criminal charges. He has previously lost custody of two siblings of J.P. Father
has not maintained contact with the caseworker.
{¶42} The trial court found it is in the best interest for the Agency to be awarded
permanent custody of J.P., as it is in his best interest. He has bonded with his foster family
and is thriving. His older half-sibling is also with the foster family, and J.P. has bonded
with his half-sibling as well. He is healthy, well fed, and makes all his medical
appointments.
{¶43} Upon review, we find the evidence at the permanent custody hearing shows
Appellant failed two drug tests administered by the Agency, maintained contact with
Father and lied to the Agency about that contact, that J.P. has bonded with his foster
family and half-sibling, and is currently thriving.
{¶44} Based upon the foregoing, we find there is clear and convincing evidence
to support the trial court’s finding that it was in the best interest of the children to grant
permanent custody to the Agency.
{¶45} The judgment of the Court of Common Pleas, Juvenile Division of
Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
King, J., concur.