[Cite as In re J.R., 2009-Ohio-4113.]




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



IN THE MATTER OF:
                                               CASE NO. 9-09-05
        J. R.,
                                               OPINION
[DANNY MUNDY, APPELLANT].


IN THE MATTER OF:
                                               CASE NO. 9-09-06
        T. M.,
                                               OPINION
[DANNY MUNDY, APPELLANT].


IN THE MATTER OF:
                                               CASE NO. 9-09-07
        D. M., III
                                               OPINION
[DANNY MUNDY, APPELLANT].


IN THE MATTER OF:
                                               CASE NO. 9-09-08
        L. M.,
                                               OPINION
[DANNY MUNDY, APPELLANT].


IN THE MATTER OF:
                                               CASE NO. 9-09-09
        E. M.,
                                               OPINION
[DANNY MUNDY, APPELLANT].
Case No. 9-09-05, 06, 07, 08, 09




             Appeal from Marion County Common Pleas Court
                              Juvenile Division
            Trial Court Nos. 2006 AB 50, 2006 AB 51, 2006 AB 52,
                          2006 AB 71, 2006 AB 122

                             Judgments Affirmed

                      Date of Decision: August 17, 2009




APPEARANCES:

      Keith A. Kochheiser for Appellant

      James P. Luton for Appellee

      Douglas B. Diequez, Guardian Ad Litem




SHAW, J.

      {¶1} Father-appellant, Danny K. Mundy, appeals five judgments rendered

on February 4, 2009, by the Court of Common Pleas, Family Division, of Marion

County, Ohio, granting permanent custody of J.R., T.M., D.M., and L.M. to

Marion County Children’s Services (“MCCS”) and granting legal custody of E.M.

to his paternal grandmother, Sheila Riggenbach.



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        {¶2} The facts relevant to this appeal are as follows. Four of the children

at issue in this appeal, T.M., D.M., L.M., and E.M., are the biological children of

Elizabeth Rogers and the appellant, Danny Mundy. J.R. is the biological child of

Elizabeth Rogers and Joshua Bonham.1 J.R. has autism. T.M. and D.M. were

born with a condition known as Treacher Collins syndrome. As a result of this

condition, both children require the use of a tracheal tube to maintain their

breathing, they have difficulty walking and communicating, and D.M. also has a

feeding tube. These two children also have nurses to help in their daily care.

        {¶3} On May 19, 2006, MCCS filed a complaint alleging that J.R., born

July 15, 2000, was abused, neglected, and dependent.2 That same day, the agency

filed two additional complaints, one for T.M., born May 9, 2002, and one for

D.M., born May 18, 2004, alleging those children were dependent and neglected.

These complaints were based upon allegations that their mother, Elizabeth Rogers,

allowed her father, a known sex offender, unsupervised access to J.R. During this

time, her father sexually assaulted J.R.

        {¶4} Three days before MCCS filed its complaints, Rogers gave birth to

L.M.     However, MCCS did not file a complaint for abuse, neglect, and/or

dependency for L.M. Upon agreement of the parties, J.R. was adjudicated abused
1
  Bonham was served by publication but did not enter any appearance for the proceedings nor did anyone
on his behalf. The mother testified that she had not had any contact with Bonham since J.R. was six
months old.
2
  Throughout the proceedings in all five cases, MCCS would dismiss its complaints and re-file and/or
amend the complaints due to various statutory time restrictions. However, the substance of these
complaints remained consistent.


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Case No. 9-09-05, 06, 07, 08, 09


and dependent, and T.M. and D.M. were adjudicated dependent on June 15, 2006.

All three were left in the care of their mother and placed under protective

supervision. Although placed in their mother’s care, the appellant also lived in the

home with Rogers and the children.

        {¶5} On July 27, 2006, MCCS filed an additional complaint, alleging that

L.M. was abused, neglected, and dependent. This complaint was based on an

incident that occurred on July 1, 2006, wherein L.M. suffered from Shaken Baby

syndrome, causing a left brain subdural hematoma, several broken ribs, and a

blown retina. Tests also showed L.M. had a fractured femur, which was already

healing.

        {¶6} The following day, on July 28, 2006, pursuant to an agreement by

Rogers and the appellant, T.M. and D.M. were placed in the physical custody of

their nurses, Kay Hout and Anita “Jodi” Smith. However, J.R. was left in the care

of Rogers, and the three children were kept under protective supervision. Upon

her release from the hospital, L.M. was placed in the temporary custody of MCCS

and placed into foster care because the perpetrator of the abuse upon L.M. had yet

to be determined.3



3
  The investigation never revealed who the actual perpetrator was. Rogers suspected that while she was
sleeping, J.M. caused the injuries. Both J.M. and Rogers were home at the time. In addition, Jodi Smith,
testified that when she arrived at the home on the day L.M. was injured, she saw the appellant knocking on
the door of a neighbor. The appellant testified that he was not in the room when L.M. was injured. Smith
further testified that she told Rogers to call 911 because she could immediately tell L.M. was critical but
that Rogers did not make the call. Instead Rogers and the appellant eventually drove L.M. to the hospital.


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        {¶7} On August 15, 2006, MCCS filed for emergency orders for T.M. and

D.M. based upon information received from the local sheriff’s department that the

parents failed to provide a safe environment for the children by allowing J.R. to

throw (“airborne”) and push his medically fragile siblings in a rough manner.

These orders were granted the following day, and emergency placement of T.M.

was given to Jodi Smith and emergency placement of D.M. was given to Kay

Hout.

        {¶8} L.M. was found to be abused and dependent on April 17, 2007.

MCCS later filed a motion for temporary custody of J.R., T.M., and D.M., which

was granted on June 6, 2007. Shortly thereafter, J.R. was placed in the therapeutic

foster home of Charity Slaughter. Eventually, both T.M. and D.M. were placed in

the home of Jodi Smith.

        {¶9} On October 25, 2007, Rogers gave birth to E.M. The following day,

MCCS filed an ex parte motion for emergency custody of E.M., which was

granted. Thereafter, MCCS filed a complaint, alleging that E.M. was a dependent

child. The basis for this complaint was the prior history of the family with MCCS,

wherein the other four children were found to be dependent children and two of

them were additionally found to be abused children. Temporary custody of E.M.

was granted to MCCS, and he was placed in the care of Jodi Smith.




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           {¶10} The appellant later filed a motion for kinship placement of E.M. with

the appellant’s mother, Sheila Riggenbach. On February 5, 2008, the parties

agreed to terminate MCCS’ temporary custody of E.M. and to grant temporary

custody of E.M. to his paternal grandmother.4 Two days later, E.M. was placed

with his grandmother.

           {¶11} On April 14, 2008, MCCS filed motions for permanent custody of

J.R., T.M., D.M., and L.M. MCCS also filed an amended complaint, alleging

E.M. was dependent and requesting that permanent custody of E.M. be granted to

the agency that same date.

           {¶12} On June 30 and July 1, 2008, the trial court held an adjudicatory

hearing for E.M. and a permanent custody hearing for the other four children. On

August 12, 2008, the paternal grandmother filed a motion to be made a party to

E.M.’s case and a motion for legal custody of E.M. The grandmother’s motion to

be made a party was granted on September 25, 2008.

           {¶13} The trial court found E.M. to be a dependent child on September 17,

2008. A dispositional/permanent custody hearing for E.M. was held on September

30, 2008. At the permanent custody hearing for the children, MCCS presented

testimony and exhibits regarding two psychological examinations of the appellant,

which noted his mental health issues and substance and alcohol abuse.                     The

agency also presented the testimony of foster parents for the children, three of the
4
    This agreement was adopted by the trial court and journalized on February 20, 2008.


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Case No. 9-09-05, 06, 07, 08, 09


caseworkers assigned to the children, and one of L.M.’s nurses. The court also

heard testimony from the parents, the maternal and paternal grandmothers, the

appellant’s sister, and one of the nurses for T.M. and D.M.

       {¶14} On February 4, 2009, the trial court granted permanent custody of

the four oldest children to MCCS. The trial court also granted legal custody of

E.M. to his paternal grandmother.

       {¶15} The father-appellant now appeals these five judgments, asserting

three assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT COMMITTED REVERSABLE [sic]
       ERROR WHEN IN ACCORDANCE WITH OHIO REVISED
       CODE 2151.414, IT FAILED TO CONSIDER ALTERNATE
       PLACEMENT RATHER THAN PERMANENT CUSTODY.

                       ASSIGNMENT OF ERROR NO. 2

       THE DECISION OF THE TRIAL COURT IS IN ERROR
       WHEN [IT] FAILED TO FOLLOW ALL OF THE
       PROVISIONS OF 2151.414.

                       ASSIGNMENT OF ERROR NO. 3

       BY ITS OWN JUDGMENT ENTRY DATED SEPTEMBER 17,
       2008, CONCERNING THE MINOR CHILD, ERIC [sic] JAY
       MUNDY, THE COURT MADE FINDINGS OF FACT THAT
       DO NOT INDICATE ANY REASON AS TO WHY THE
       FATHER SHOULD NOT HAVE THE CARE AND CUSTODY.




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Case No. 9-09-05, 06, 07, 08, 09


                             First Assignment of Error

       {¶16} In his first assignment of error, the appellant contends that the trial

court erred by not considering alternate placement of the children rather than

permanent custody. Initially, we note that this assignment of error concerns all

five of the children. However, J.R. is not the biological or adopted child of the

appellant. Further, the record is devoid of any motion filed on behalf of the

appellant for custody of J.R. As such, he lacks standing to challenge the trial

court’s decision to grant permanent custody of J.R. to MCCS. Therefore, this

assignment of error is overruled as to J.R. Further, the request by MCCS for

permanent custody of E.M. was not granted. To the contrary, legal custody of

E.M. was granted to his paternal grandmother. Accordingly, this assignment of

error is overruled as moot as to E.M.

       {¶17} In regards to the other three children, our review of a grant of

permanent custody begins by noting that “[i]t is well recognized that the right to

raise a child is an ‘essential’ and ‘basic’ civil right. In re Franklin, 3rd Dist. Nos.

9-06-12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio St.3d 46,

48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent “must be

afforded every procedural and substantive protection the law allows.”            In re

Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.




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Case No. 9-09-05, 06, 07, 08, 09


       {¶18} Additionally, the trial court is vested with broad discretion in

determining the allocation of parental rights and responsibilities for the care of

minor children. Blaker v. Wilhelm, 6th Dist. No. WD-04-003, 2005-Ohio-317,

citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As a trial

court is in the best position to weigh witness credibility and evaluate a child’s

needs, the standard for reviewing a trial court’s grant of permanent custody is

abuse of discretion.    In re Rinaldi, 3rd Dist. No. 1-02-74, 2003-Ohio-2562.

Therefore, absent an abuse of that discretion, a trial court’s decision regarding the

allocation of parental rights and responsibilities must be upheld.       Masters v.

Masters (1994), 69 Ohio St.3d 83, 85, 630 N.E.2d 665. An abuse of discretion

constitutes more than an error of law or judgment and implies that the trial court

acted unreasonably, arbitrarily, or unconscionably.       Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Id. Therefore, it is within these constructs that we examine

Appellant’s first assignment of error.

       {¶19} Before a juvenile court may terminate parental rights and award

permanent custody of a child to a properly moving agency, it must find clear and

convincing evidence of both prongs of the permanent custody test: (1) that the

child is abandoned, orphaned, has been in the temporary custody of the agency for



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at least 12 months of a consecutive 22-month period, or that the child cannot be

placed with either parent within a reasonable time or should not be placed with

either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant

of permanent custody to the agency is in the best interest of the child, based on an

analysis under R.C. 2151.414(D). In re D.M., 9th Dist. Nos. Civ.A. 22732, 22749,

2005-Ohio-6740 at ¶ 11, citing R.C. 2151.414(B)(1)(a) through (d) and (2); See

also In re William S. (1996), 75 Ohio St.3d 95, 99, 661 N.E.2d 738.

       {¶20} In the case sub judice, the appellant contends that the trial court was

required to consider alternate placement of the children rather than permanent

custody pursuant to R.C. 2151.414. Although the appellant cites this section of

the Revised Code, he provides no specific sub-section and/or division in support

of his argument that the trial court must consider alternate placement. Rather, his

argument relies upon R.C. 2151.412(F)(1)(a), which requires a case plan to have a

goal “to achieve a safe out-of-home placement in the least restrictive, most family-

like setting available and in close proximity to the home from which the child was

removed[.]” He then asserts that the children were placed “all over central Ohio”

and that this made visitation difficult.

       {¶21} Our review of R.C. 2151.414, as previously outlined, reveals no

requirement that the trial court favor alternate placement over awarding permanent

custody. Further, even assuming arguendo that such a requirement exists, the



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evidence before the trial court demonstrated that the three children at issue in this

assignment of error, T.M., D.M., and L.M., each have serious, debilitating, and

life-threatening medical conditions that require constant care. Their respective

medical conditions necessitated specialized placement in homes where those

responsible for their care understood their extreme needs and could meet those

needs.    In fact, R.C. 2151.412(F)(1)(a) specifically requires that the goal of

achieving a safe out-of-home placement be “consistent with the best interest and

special needs of the child[.]” Therefore, MCCS placed these children with people

who not only were trained and experienced in handling medically fragile children

but who also knew these children prior to placement in their respective homes.

         {¶22} In this case, the paramount concern was the physical safety of the

children, as their very survival depended upon it. Thus, no error occurred in the

placement of the children. Moreover, the record before the court amply supports

the trial court’s decision to grant permanent custody of the children.           The

witnesses testified about the psychological problems, poor parenting skills, and

impaired judgment of the appellant, and the defiant and belligerent attitude the

appellant has with others regarding the medical treatment of his children. Given

the intense medical needs of the children, the court did not abuse its discretion in

finding by clear and convincing evidence that both prongs of the permanent

custody test were satisfied. Accordingly, the first assignment of error is overruled.



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                            Second Assignment of Error

       {¶23} The appellant contends in his second assignment of error that the

trial court erred by not following the mandates of R.C. 2151.414 in regards to

E.M.   In support of this contention, the appellant asserts that MCCS sought

permanent custody of E.M., who has no medical problems and who was never in

the care of his parents due to the issues with the other four children, and that the

trial court failed “to consider not only the parents, but the extended family, so that

the child could remain in a family like setting.”

       {¶24} While the appellant accurately states that MCCS requested

permanent custody, the trial court denied this request. To the contrary, the trial

court granted the motion of Sheila Riggenbach, the appellant’s mother, to award

legal custody of E.M. to her. In reaching this decision, the trial court found that

the parents were not capable of caring for any child based on their past history,

including the fact that E.M.’s sister, L.M., was born with no health problems but

suffered abuse while in her parents’ care and then they failed to provide immediate

emergency attention to her.        However, the court also found that continued

parenting time between E.M. and his parents should occur and that legal custody

to the paternal grandmother would adequately protect E.M. and provide for his

need for permanency. Thus, the court concluded that E.M.’s best interests would

be served by granting legal custody of E.M. to his grandmother, who had



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temporary custody of him since he was four months old, and that such a decision

would not terminate the parental rights of the appellant and Elizabeth Rogers.

         {¶25} The record clearly demonstrates that the trial court considered both

the parents and the extended family. In fact, E.M. was placed in the legal custody

of his paternal grandmother. Thus, the trial court kept the child with his extended

family. As such, the appellant has already received the result he now seeks

through this assignment of error. Therefore, the second assignment of error is

overruled.

                              Third Assignment of Error

         {¶26} In his third assignment of error, the appellant contends that the trial

court erred by failing to indicate why the appellant should not have the care and

custody of E.M.        In support of this assertion, the appellant references the

September 17, 2008 judgment of the trial court, finding E.M. to be a dependent

child.

         {¶27} Admittedly, this entry does not reference any direct findings as to

the appellant. However, the appellant’s assignment of error does not challenge the

adjudication of dependency. Rather, he contends the court erred in not providing a

reason as to why he was not given custody of E.M. at the disposition.

         {¶28} After adjudicating E.M. to be dependent, the trial court held a

dispositional hearing on E.M., which included MCCS’ request for permanent



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custody of him. This hearing was held on September 30, 2008, the same day as

the continuation of the permanent custody hearing for the four older children.

Prior to that time, the trial court received two days of testimony on the permanent

custody motions for E.M.’s siblings. Also included in those previous two days of

evidence was a substantial amount of testimony regarding E.M.

       {¶29} At the conclusion of all the evidence regarding each of the five

children, the trial court took the matters under advisement. In its February 4, 2009

decision, the trial court found that the parents were not capable of caring for any

child based on their past history, including the fact that E.M.’s sister, L.M., was

born with no health problems but suffered abuse while in her parents’ care and

then they failed to provide immediate emergency attention to her. The court also

found that the parents could not assimilate the resources made available to them

through counseling. In specifically addressing its concerns as to the appellant, the

court found that the appellant was unable to focus, had past mental health

problems and drug and alcohol issues, was in danger of relapsing, had weak

parenting skills, had impaired judgment, lacked insight, and was resentful of

authority and typically defiant and belligerent when told or asked to do anything

regarding the medical treatment of his children.        The court then held that

notwithstanding reasonable case planning and diligent efforts by the agency to

assist the parents to remedy the problems that initially caused the children to be



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placed outside the home, the parents failed continuously and repeatedly to

substantially remedy these problems pursuant to R.C. 2141.414(E)(1).

         {¶30} The court also found that the parents demonstrated a lack of

commitment toward the children by failing to regularly support, visit, or

communicate with the children when able to do so, or by other actions showing an

unwillingness to provide an adequate permanent home for the children pursuant to

R.C. 2151.414(E)(4). Here, the court found that visitations were sporadic because

of the parents’ actions, including the appellant’s decision to enroll in school an

hour and a half away without a residence or dependable means of transportation.

         {¶31} Despite these findings, the court also found that continued parenting

time between E.M. and his parents should occur and that legal custody to the

paternal grandmother would adequately protect E.M. and provide for his need for

permanency. Thus, the court concluded that E.M.’s best interests would be served

by granting legal custody of E.M. to his grandmother, and that such a decision

would not terminate the parental rights of the appellant and Elizabeth Rogers.

         {¶32} Notably, the appellant does not dispute these findings. Rather, he

inaccurately maintains that no findings were made and, thus, the trial court failed

to follow statutory mandates.5 Not only were numerous findings made by the

court in regards to the appellant and the court’s decision to grant legal custody to

5
  Although the appellant states “[t]his was in error in failing to follow the statutes set forth above and must
be reversed[,]” he fails to provide any statutory references in support of this statement. This failure makes
it quite difficult to ascertain the exact nature of the alleged error purportedly committed by the trial court.


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the paternal grandmother, as previously discussed, these findings were supported

by the evidence before it. Therefore, this assignment of error is overruled.

       {¶33} For all of these reasons, the five judgments of the Marion County

Common Pleas Court, Family Division, are affirmed.

                                                               Judgments Affirmed

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

/jlr




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