IN THE MATTER OF: D.D. A Dependent Child
Case No. CT2019-0025
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 8, 2019
2019-Ohio-4646
Hon. W. Scott Gwin, P. J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 21730238; JUDGMENT: Affirmed
For Appellee
D. MICHAEL HADDOX PROSECUTING ATTORNEY GERALD V. ANDERSON, II ASSISTANT PROSECUTOR 27 North Fifth Street Zanesville, Ohio 43701
For Appellant
MICHAEL J. CONNICK MICHAEL J. CONNICK CO., LPA 301 Main Street Suite H Zanesville, Ohio 43701
{¶1} Appellant Jacqueline S. appeals the decision of the Muskingum County Court of Common Pleas, Juvenile Division, which granted permanent custody of her daughter, D.D., to Appellee Muskingum County Children Services (“MCCS“). The relevant facts leading to this appeal are as follows.
{¶2} On November 6, 2017, Appellee MCCS filed a complaint in the trial court alleging that D.D., born November 2017, was neglected and/or dependent. Initial concerns were that appellant had tested positive for methamphetamine, cocaine, and marijuana upon admission to the maternity unit. Appellant was also reported to have several mental health issues. The man who was alleged at the time to be D.D.‘s father, Jason D., was alleged to have a lengthy criminal record and a history of abusive treatment of appellant.1
{¶3} The trial court thereupon ordered the child into the temporary custody of MCCS.
{¶4} A case plan was filed with the trial court on December 6, 2017, with no objections thereto. D.D. was adjudicated a dependent and neglected child on February 1, 2018. The court ordered her to be maintained in the temporary custody of MCCS.
{¶5} On July 23, 2018, MCCS filed a motion for permanent custody, which was scheduled for a hearing on December 18, 2018. In the meantime, on November 5, 2018, the court conducted an annual review hearing; however, appellant did not appear.
{¶7} THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I.
{¶8} In her sole Assignment of Error, appellant-mother contends the trial court erred in granting permanent custody of D.D. to the agency. We disagree.
{¶9}
Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents. (b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{¶10} For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child
{¶11} Furthermore, in determining the best interest of the child in permanent custody cases,
{¶12} Because custody issues are some of the most difficult and agonizing decisions a trial judge must make, he or she must have wide latitude in considering all the evidence and such a decision must not be reversed absent an abuse of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As an appellate court, we are not the trier of fact; instead, our role is to determine whether there is relevant, competent, and credible evidence upon which the factfinder could base his or her judgment. Tennant v. Martin-Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010-Ohio-3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911.
{¶13} As noted in our recitation of the facts, the trial court conducted the permanent custody trial in this matter on December 18, 2018. MCCS called as its witnesses (1) Cinda Graham from All Well Behavioral Health, (2) MCCS Caseworker Carly Bates, and (3) D.D.‘s foster mother. Appellant was not present for the trial, and her
{¶14} Appellant‘s brief at several points criticizes the agency‘s handling of this matter, while ignoring the evidence that appellant did not visit with D.D. after February 2018 (Tr. at 12), and, in her last known contact with the agency in March 2018, had informed caseworkers that she was not willing to work with them on any services and did not want to reunify with the child. Tr. at 21. Information was provided to the court at the permanent custody trial that she had possibly relocated to New York or Florida. Tr. at 22-23. The child‘s maternal grandmother was, for a time, assessed for relative
{¶15} We note that “*** courts have found an implied exception to mandatory case planning efforts when those efforts would be futile.” In re Leitwein, 4th Dist. Hocking No. 03CA18, 2004-Ohio-1296, ¶ 30. Appellant essentially now chooses to reprove the agency in a situation where she ultimately showed no interest in the agency‘s reunification efforts. She seems to fault the caseworker who took over in April 2018 for not having contact with her, and then resorts to classifying the utilization of this caseworker as a witness by the agency as “an unbelievable display of mind-numbing laziness ***.” Appellant‘s Brief at 8. Additionally, with no legal support, appellant attempts to dismiss the entirety of the GAL‘s report as inadmissible hearsay. Id.
{¶16} However, in this instance, we are persuaded that the trial court, relying on
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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