[Cite as In re D.M., 2017-Ohio-7113.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY


IN RE:

        D.M.                                                CASE NO. 1-17-17

ADJUDICATED DEPENDENT
AND NEGLECTED CHILD.
                                                            OPINION
[RICHARD McMILLEN - APPELLANT]


IN RE:

        R.M.                                                CASE NO. 1-17-18

ADJUDICATED DEPENDENT
AND NEGLECTED CHILD.
                                                            OPINION
[RICHARD McMILLEN - APPELLANT]


                  Appeals from Allen County Common Pleas Court
                                  Juvenile Division
                 Trial Court Nos. 2014 JG 31832 and 2014 JG 31833

                                        Judgment Affirmed

                            Date of Decision: August 7, 2017


APPEARANCES:

        David K. Goodin for Appellant

        Mariah M. Cunningham for Appellee
Case Nos. 1-17-17, 1-17-18


ZIMMERMAN, J.,

         {¶1} This consolidated appeal involves the award of permanent custody of

two minor children, D.M. (case number 2014 JG 31832) and R.M. (case number

2014 JG 31833) to the Allen County Children Services Board (“ACCSB”).

Appellant, Richard McMillen (“Richard”), D.M. and R.M.’s natural father, appeals

these decisions of the Allen County Juvenile Court. The mother of D.M. and R.M.,

who’s parental rights were also terminated, did not participate in the trial court

proceedings despite being properly served and has not appealed.

                                  Facts and Procedural History

         {¶2} On September 2, 2014, ACCSB filed complaints alleging D.M. and

R.M. to be neglected and dependent children, as defined in R.C. 2151.03 and

2151.04. (Doc. 1)1. At the time, D.M. was five years old and R.M. was four years

old. The complaints alleged problems with Richard’s supervision of the children,

together with allegations of substance abuse and physical abuse occurring in the

home. (Id). The complaints also alleged that both children had developmental

delays which were not being addressed by Richard. (Id).

         {¶3} On September 3, 2014, the trial court appointed Julisa Jones, CASA as

guardian ad litem (“GAL”) for the children. Ms. Jones was the sole GAL throughout

the proceedings.


1
 Since the relevant filings in each of the cases were the same, our record references will be to case 2014 JG
31832.

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Case Nos. 1-17-17, 1-17-18


       {¶4} ACCSB filed its first case plan on October 1, 2014 recommending that

Richard complete a substance abuse/mental health assessment and follow all

professional recommendations thereto; that he submit to random drug screens; that

he attend and complete parenting classes; that he address the children’s

developmental delays and follow all recommendations thereto; that he maintain a

clean and safe home; that he meet the children’s basic everyday needs; that he obtain

employment or apply for other subsidy benefits; and that he permit ACCSB monthly

contact in order to monitor the safety and well-being of the children.

       {¶5} On October 22, 2014, the trial court held an adjudicatory hearing on

ACCSB’s complaints. Richard, the GAL, counsel for mother and counsel for

ACCSB were present. The trial court found, by clear and convincing evidence, that

both D.M. and R.M. were dependent and neglected and ordered the children to

remain in Richard’s legal custody. (Doc. 19).

       {¶6} On November 6, 2014 the trial court conducted its dispositional hearing

regarding D.M. and R.M., filing its judgment entry adopting the magistrate’s

decision on January 5, 2015 together with the October 1, 2014 case plan. Again,

the trial court permitted the children to remain in Richard’s legal custody. (Doc.

33). The father did not object to the magistrate’s decision or appeal the trial court’s

entry adopting the decision.




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Case Nos. 1-17-17, 1-17-18


           {¶7} The record discloses that throughout ACCSB’s involvement, Richard

struggled to comply with the case plan2 which ultimately resulted in the trial court

removing the children from Richard’s custody and granting temporary custody (of

D.M. and R.M.) to ACCSB on June 2, 2015. Thereafter, on July 29, 2016, ACCSB

filed its motion for permanent custody of D.M. and R.M. in the trial court.

           {¶8} The permanent custody hearing was held in the trial court on March 22,

2017. The GAL filed her final report with the trial court prior to the hearing and

recommended that D.M. and R.M. be placed into the permanent custody of ACCSB.

(Doc. 149). On March 29, 2017 the trial court issued its judgment entries granting

permanent custody of D.M. and R.M. to ACCSB.                            It is from these entries,

collectively, that Richard appeals, raising the following assignment of error for our

review.

                                  ASSIGNMENT OF ERROR

           THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY
           OF D.M. AND R.M. TO ALLEN COUNTY CHILDREN’S
           SERVICES BOARD (“ACCSB”) BECAUSE THE CHILDREN
           COULD NOT BE PLACED WITH THEIR FATHER WITHIN
           A REASONABLE PERIOD OF TIME WAS NOT SUPPORTED
           BY CLEAR AND CONVINCING EVIDENCE.




2
    ACCSB filed show cause motions against Richard on February 3, 2015 and June 1, 2015.

                                                   -4-
Case Nos. 1-17-17, 1-17-18


       {¶9} In his sole assignment of error, Richard argues that the trial court’s

determination that the children could not be returned to his care within a reasonable

time period was not supported by clear and convincing evidence.

                                Standard of Review

       {¶10} “[T]he right to raise a child a child is an ‘essential’ and ‘basic’ civil

right. In re Hayes, 79 Ohio St.3d 46 (1997), citing In re Murray, 52 Ohio St.3d 155,

157 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972).

“[P]arents have a fundamental liberty interest in the care, custody and management

of their children.” In re Schaeffer Children, 85 Ohio App.3d 683, 689 (1993), citing

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982).

       {¶11} A court may grant permanent custody of a child under R.C.

2151.414(B)(1) if the court determines “by clear and convincing evidence that it is

in the best interest of the child” and one of the four factors listed in R.C.

2151.414(B)(1)(a)-(d) applies. R.C. 2151.414(B)(1)(a) states, in relevant part,

“[T]he 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”.

       {¶12} In the case before us, the trial court considered R.C. 2151.414(E)(1)

in support of its permanent custody award which provides, in its pertinent part, as

follows:

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

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Case Nos. 1-17-17, 1-17-18


       with the parents, the court shall consider all relevant evidence. If
       the court determines, by clear and convincing evidence, at a
       hearing * * * that one or more of the following exist as to each of
       the child’s parents, the court shall enter a finding that the child
       cannot be placed with either parent within a reasonable time or
       should not be placed with either parent:

       (1) Following the placement of the child outside the child’s home
       and notwithstanding reasonable case planning and diligent efforts
       by the agency to assist the parents to remedy the problems that
       initially caused the child to be placed outside the home, the parent
       has failed continuously and repeatedly to substantially remedy
       the conditions causing the child to be placed outside the child’s
       home. In determining whether the parents have substantially
       remedied those conditions, the court shall consider parental
       utilization of medical, psychiatric, psychological, and other social
       and rehabilitative services and material resources that were made
       available to the parents for the purpose of changing parental
       conduct to allow them to resume and maintain parental duties.

Emphasis added.

       {¶13} The Supreme Court of Ohio has held that “[c]lear and convincing

evidence is that measure or degree of proof which will produce in the mind of the

trier of facts a firm belief or conviction as to the allegations sought to be established.

It is intermediate, being more than a mere preponderance, but not to the extent of

such certainty as is required beyond a reasonable doubt as in criminal cases. It does

not mean clear and unequivocal.” In re Smith, 3d Dist. Marion No. 9-04-35, 2005-

Ohio-149, ¶ 36, quoting Cross v. Ledford, 161 Ohio St. 469, 477 (1954). In addition,

when “the degree of proof required to sustain an issue must be clear and convincing,

a reviewing court will examine the record to determine whether the trier of facts had


                                           -6-
Case Nos. 1-17-17, 1-17-18


sufficient evidence before it to satisfy the requisite degree of proof.” Cross, Id.

Thus, we are required to determine whether the evidence was sufficient for the trial

court to make its findings by a clear and convincing degree of proof.

                                     Analysis

       {¶14} The trial court determined that a grant of permanent custody to

ACCSB was in the best interest of the children. (Doc. 150). The trial court found

R.C. 2151.414(E)(1) applied and found, by clear and convincing evidence, that the

children could not be returned to Richard’s custody within a reasonable time or

should not be placed with either parent.

       {¶15} In the case sub judice, Richard does not dispute the trial court’s

determination that permanent custody was in the best interest of the children.

Rather, Richard argues that there was not clear and convincing evidence that the

children could not be placed with him within a reasonable period of time.

       {¶16} In regards to R.C. 2151.414(E)(1), the trial court made the following

findings as to whether the children could be placed with Richard within a reasonable

period of time:

       8) Here, the Court finds that the Board has provided both
       reasonable case planning and diligent efforts. The issues to be
       confronted were the Father’s continuing abuse of controlled
       substances, lack of stable and appropriate housing and
       inappropriate home conditions. The Father was given referrals
       for assistance in locating appropriate housing and was referred
       for substance abuse treatment and counseling. He was never able
       to secure safe and appropriate housing and chose to continue to

                                           -7-
Case Nos. 1-17-17, 1-17-18


      abuse controlled substances, in spite of the potential impact on the
      return of his children. It does not appear that he seriously
      attempted and was unable to discontinue using controlled
      substances, but instead that he chose not to do so because of his
      belief that his use does not interfere with his day to day living. He
      has tested positive for marijuana on all eight drug tests which
      have need [sic] administered, most recently on March 8, 2017, just
      fourteen days prior to the permanent custody hearing. Whether
      or not his substance abuse does interfere, it is clear from the
      evidence that, for whatever reason, he has been unable to remedy
      the conditions that led to his children’s removal.                 He
      acknowledged that fact in testifying that “I know that I can’t take
      care of them right now.” Additionally, the fact of his transient
      circumstances and failure to report his whereabouts to the
      caseworker after his frequent moves made it difficult for the
      Board to provide services to the Father.

      10) The Court finds that the minor child cannot be placed with
      either parent because, following placement of the child outside the
      home and notwithstanding reasonable case planning and diligent
      efforts by the Agency to assist the parents to remedy the problems
      that initially caused the child to be placed outside the home, both
      parents have failed continuously and repeatedly to substantially
      remedy the conditions causing the child to be placed outside the
      child’s home (R.C. 2151.414(E)(1)). The court further finds that
      the Child cannot be placed with the Mother within a reasonable
      time and should not be placed with the Mother because she has
      abandoned the Child (R.C. 2151.414(E)(10)).

(Doc. 150).

      {¶17} Regarding these findings made by the trial court, Richard argues that

he made great strides in accomplishing the requirements outlined in the case plan.

Furthermore, Richard claims he successfully completed all substance abuse

assessments (Tr. 11); completed the required parenting classes (Tr. 15); obtained

employment (until he fell ill) (Tr. 25); obtained a driver’s license and a fork lift

                                        -8-
Case Nos. 1-17-17, 1-17-18


operator’s license (Tr. 91); regularly visited with D.M. and R.M. (Tr. 48-49); and

made numerous attempts to find suitable housing. (Tr. 76, 83-84). However,

Christin Winter (“Winter”), a caseworker for ACCSB, testified that even though

Richard may have successfully completed his substance abuse assessment, he

continued to actively abuse drugs, and failed all drug screens performed by

ACCSB3, which totaled eight failed drug tests. (Tr. 12).

        {¶18} Winter further testified that despite Richard’s regular attendance of

visits with D.M. and R.M., concerns existed with the children “roaming the

hallway” (during visits) and with Richard’s decision to permit the children to play

on his cell phone instead of personally interacting with them. Winter’s testimony

also revealed that while Richard completed the required parenting class under his

case plan, he did so a year after it was ordered, completing the class after a Motion

for Citation in Contempt was filed against him by ACCSB. (Tr. 15, 74).

        {¶19} Additionally, Winter’s testimony established that Richard had moved

approximately nine times during the two (2) year period in which the case plan was

open. Richard’s residences included: a stay at the Royal Inn in Lima with the

children; residing with friends; and his plan to “fix up” a home for him and the

children, which failed to materialize. (Tr. 22, 24).




3
 Richard most recently tested positive for marijuana on March 8, 2017, just weeks before the permanent
custody hearing. (Tr. 12).

                                                  -9-
Case Nos. 1-17-17, 1-17-18


       {¶20} As to obtaining gainful employment, Richard did obtain a valid

driver’s license and a fork lift operator’s license, which were not required under the

case plan, but the record reveals that he only worked for a total of nine months after

the adoption of the October, 2014 case plan. And, Richard quit that job and was not

employed at the time of the permanent custody hearing. (Tr. 26).

       {¶21} Winter also testified on the issue as to whether the children should be

placed with Richard, as follows:

       Q.     (Cunningham)         What is the Agency asking as far as
       disposition in this case?

       A. (Winter)That both [R.M.] and [D.M.] be placed in the permanent
       custody of the Agency.

       Q.   And why is the Agency making that request?

       A. Um, Mr. McMillen has not been able to demonstrate that he can
       consistently meet their needs, their basic medical and special needs.
       He also has not been able to maintain appropriate housing and
       employment.

       Q. Do you believe that [D.M.] and [R.M.] have a need for a legally
       secure permanent placement?

       A.   I do.

       Q. Based on your involvement with Mr. McMillen in the past two
       (2) years, as well as, your training and experience in the area of child
       welfare, do you believe that they can be placed with Mr. McMillen
       within a reasonable amount of time?

       A.   I do not.

       Q.   And, why not?

                                        -10-
Case Nos. 1-17-17, 1-17-18



       A. Mr. McMillen has had a case with our Agency for over two (2)
       years now. The first year of that the children were in his custody.
       Um, and during all of that time he has not been able to demonstrate
       the things that the Agency needs to see in order to ensure that the
       children would be safe in his care.

       Q. Do you believe there’s anything further that the Agency could
       have done to assist Mr. McMillen in first, maintaining the children
       and then with reunification?

       A. The Agency has exhausted all efforts to try to maintain the
       children in his care and custody prior to the removal. Since the
       removal the Agency has offered, um, referrals, recommendations,
       assistance, things of that nature. The Agency did offer to help Mr.
       McMillen pay for his housing at one (1) point given that he had
       employment and he paid for at least the deposit or the firsts [sic]
       month rent. Mr. McMillen was not able to do that at any given point
       during the case.

(Tr. 40-41)

       {¶22} Most importantly, Richard agreed with Winter’s testimony by

admitting that he was not capable of caring for D.M. and R.M. stating “I love my

kids, your Honor. I just want to be able to see them. I know I can’t take care of

them right now but, I love my kids”. (Tr. 93). (Emphasis added).

       {¶23} As we noted previously, R.C. 2151.414(E)(1) directs a trial court to a

finding that a child cannot be placed with either parent within a reasonable time if

it determines by clear and convincing evidence, that “[F]ollowing placement of the

child outside the child’s home and notwithstanding reasonable case planning and

diligent efforts by the agency to assist the parents to remedy the problems that


                                       -11-
Case Nos. 1-17-17, 1-17-18


initially caused the child to be placed outside the home, the parent has failed

continuously and repeatedly to substantially remedy the conditions causing the child

to be placed outside the child’s home”. Here, the trial court determined that

Richard’s abuse of drugs, lack of stable housing and inappropriate home conditions

led to the children’s removal from his custody and “he has been unable to remedy

the conditions”. (Doc. 150, ¶8). Furthermore, Richard’s admission to being unable

to take care of the children, the testimony of caseworker Winter and the

recommendation of the GAL (for permanent custody) all support the trial court’s

determination that D.M. and R.M. could not be placed with their father within a

reasonable time.

       {¶24} In our review of the record, we find sufficient clear and convincing

evidence exists in the record to support the trial court’s determination that the

children cannot be returned to Richard within a reasonable period of time or should

not be returned to him pursuant to R.C. 2151.414(E)(1). “A reviewing court should

be guided by a presumption that the findings of the trial court are correct, since the

trial court is best able to view the witnesses and observe their demeanor, gestures

and voice inflections, and use their observation in weighing credibility of the

proffered testimony”. Cramer v. Bucher, 3d Dist. Hancock No. 05-02-01, 2002-

Ohio-3397, ¶ 9, quoting McSweeney v. Jackson, 117 Ohio App.3d 623, at 632 (4th

Dist., 1996). Thus, we overrule Richard’s sole assignment of error.


                                        -12-
Case Nos. 1-17-17, 1-17-18


       {¶25} Having found no error prejudicial to appellant herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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