[Cite as In re L.R., 2013-Ohio-3104.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN THE MATTER OF: L.R., M.R.                   :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                                               :       Hon. John W. Wise, J.
                                               :
                                               :
                                               :       Case No. 13CA004
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Holmes County Court
                                                   of Common Pleas, Juvenile Division, Case
                                                   Nos. 10-N-115, 10-N-116

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            July 15, 2013

APPEARANCES:

For - Appellee                                     For - Appellant

STEPHEN KNOWLING
SEAN WARNER                                        CLARKE W. OWENS
Holmes County Prosecuting Attorney                 132 S. Market Street, Suite 204
164 E. Jackson Street                              Wooster, OH 44691
Millersburg, OH 44654

                                                   GUARDIAN AD LITEM
                                                   DAVID M. HUNTER
                                                   244 W. Main Street
                                                   Loudonville, OH 44842
[Cite as In re L.R., 2013-Ohio-3104.]


Gwin, P.J.

        {¶1}     Appellant-father, Leonard Rice [“Father”] appeals the March 1, 2013,

judgment entry of the Holmes County Court of Common Pleas, Juvenile Court Division,

which terminated his parental rights with respect to his minor children J.R. and M.R. and

granted permanent custody of the children to appellee, Holmes County Department of

Jobs and Family Services (“HCDJFS”).

                                        PROCEDURAL HISTORY

        {¶2}     On May 21, 2010, HCDJFS filed a Complaint in Neglect, Abuse, and

Dependency for the two children, J.R. (03/01/1998) and M.R (01/11/2001). On July 7,

2010, the parties stipulated to a finding of Neglect under R.C. 2151.03(A)(3) and

Dependency under R.C. 2151.04(C), and the other sections were dismissed. Protective

supervision was ordered as of July 12, 2010, with case plan at disposition.

        {¶3}     Melissa Fugett, former intake and ongoing worker with HCDJFS testified

that she requested and received temporary custody of the children in August 2010 due

to the parents' failure to begin services and failure to submit to drug screens. Both

children remain in the agency's custody. Ms. Fugett, testified that Father does have a

prescription for oxycodone,

        {¶4}     A hearing was held August 30, 2010 to review the grant of custody and

served as an initial hearing on HCDJFS' motion for contempt against both parents. Both

the grant of custody and the motion for contempt were based in part on the parents'

refusal to submit to drug screens when requested by the agency. A second contempt

motion was filed against Father in May 2011 for failure to submit to drug screens and

failing to attend the individual counseling required by the case plan. At the time she filed
Holmes County, Case No. 13CA004                                                             3


the second contempt motion, Ms. Fugett said Father “wasn't doing drug screens, he

wasn't attending visitation regularly, he wasn't, uh, seeing a counselor. He wasn't doing

anything..." (T.22).

       {¶5}   Ms. Fugett stated that Leonard attended counseling and failed to submit to

drug screens sporadically throughout the case. When Leonard did submit to drug

screens he tested positive for marijuana and admitted to Ms. Fugett that he used

marijuana and that he should stop. Both parents had moved from house to house during

the pendency of the case. At one point, Father was incarcerated for failure to pay child

support.

       {¶6}   Ms. Fugett was asked about visits by the parents with the children. She

testified the supervised visits were "inconsistent" with lots of no-shows. She said that

sometimes the parents did well but sometimes the parents were "out of it" which was

evidenced by them falling asleep and slurring their words. She also testified the children

noticed this behavior by their parents and were upset by it. She stated the visits were

initially one-hour visits twice every week but transportation problems resulted in a

change to a single visit of one and one-half hours per week. She stated the parents

rarely used the entire ninety minutes. She did state that the majority of the visits by the

parents at HCDJFS offices were positive visits.

       {¶7}   Mr. Klinger of HCDJFS testified he supervised approximately 116 visits by

the parents with their children. Mr. Klingler said, "for the most part visits by [Father] have

gone well." However, he noted Father fell asleep approximately five times during visits

and the last of those was at least one year before the hearing date. He also stated that

on one occasion, Father was slurring his speech and appeared to be under the
Holmes County, Case No. 13CA004                                                                4


influence and that incident was at least one year before the hearing date. Mr. Klingler

stated one of the biggest problems in the visits was Father’s discussion of these cases

with the children. Mr. Klingler said he had to warn Father about this problem "a number

of times." Mr. Klinger further testified Father was adamant that he would not lose

permanent custody of his children.

       {¶8}   Ms. Fugett left HCDJFS in August 2012. Ms. Fugett characterized both

parents as lacking motivation to change during the entire time she was the ongoing

caseworker for the children (T. 8-10). She testified to numerous occasions in which both

parents did not comply with the case plan requirements or failed to follow the rules of

unsupervised visitation leading to the termination of such visits after only a brief period.

       {¶9}   Kati Vaughn, current intake worker for HCDJFS stated she assisted

current ongoing worker, Luella Gilbert on occasion. Ms. Vaughn stated that she

administered a drug screen to Father on November 7, 2012 (T. 57). She indicated that

the screen was requested due to concerns with Father's condition at a supervised visit

with his children that day or the day prior to the request.

       {¶10} Joe Messner counseled Father sporadically from September 2010 until

April 2012. There were 12 appointments in 19 months with 14 cancellations. (T. 89). Mr.

Messner testified that Father was unable to sustain long periods of motivation and that

Father's level of motivation was externally, as opposed to internally, driven which

appeared to be tied to his case plan (T. 92). Father cancelled his last appointment with

Mr. Messner on April 10, 2012 and indicated he would not return stating Father felt the

counseling "had done as much good as it was going to do." (T. 93).
Holmes County, Case No. 13CA004                                                           5


       {¶11} Jackie Taylor testified that she is a caseworker for the Holmes County

Child Support Enforcement Agency (T. 130). She stated that Father has only made one

payment during the pendency of his case and has been incarcerated for failure to pay

his obligations (T. 133).

       {¶12} Roger Estill, Chief Probation Officer for Holmes County Common Pleas

Court, testified that the children’s mother has been incarcerated for several different

drug charges during the last two and a half years (T. 164). Her most recent

incarceration from August to December of 2012 was the result of a probation violation

which mother admitted to theft of Father’s oxycodone.

       {¶13} Bridget Lemberg, lab director of Forensic Fluids, testified that Father

tested positive for cocaine from the test administered by Kati Vaughn on November 7,

2012 (T. 228). Father's positive test result was admitted as State's Exhibit A.

       {¶14} Luella Gilbert is the current ongoing HCDJFS caseworker assigned to the

children. Ms. Gilbert testified that she began working on the case in August 2012 (T.

255). She indicated that she was unaware of any employment by Father from that point

to the present (T. 274). She indicated that Father's home was adequate until Mother

was released from prison in early December. Since that time, the condition of the home

has deteriorated (T. 281-283). Ms. Gilbert indicated both Father and Mother have

refused drug screens in December and January. (T. 271).

       {¶15} Ms. Gilbert was aware that Father had re-engaged in counseling with

Scott Self in October 2012. Ms. Gilbert testified Father told her he had signed back up

"due to his attorney telling him that is what he needed to do to help him with his court

case." (T. 276). In spite of his counseling, Father still refused to take drug screens after
Holmes County, Case No. 13CA004                                                          6


November 20, 2012. Ms. Gilbert testified she was present at Father's home on

November 7, 2012 when Kati Vaughn administered a drug screen to Father. During this

meeting, Father mentioned that J.R. requested to extend visitation to two hours. Ms.

Gilbert asked Father if he wished the visits to be extended. Father stated he did not

know if he could sit in the small visitation room at the agency for two hours. Ms. Gilbert

told Father that it was still time he would be able to spend with his children and that Ms.

Gilbert would request an additional hour be added if Father would commit to coming for

that duration. Father would not commit to coming for two hours to visit his children (T.

277-278). Ms. Gilbert also noted that on the last supervised visit on the Friday prior to

the hearing, Father's speech was slurred and he appeared "out of it" prompting Ms.

Gilbert to inquire multiple times if he was all right (T. 279).

       {¶16} Scott Self confirmed that Father had begun counseling in November of

2012 and that Father was currently in stage three of five stages of change. Father has

not begun any action phase of the stages of change and currently in the planning stage

(T. 108). He further testified Father needs some type of support going forward but was

unable to specify what type of support because Father had not completed the exit

interview as of the date of the evidentiary hearing. He indicated Father was diagnosed

with Alcohol Dependency; a condition he said is more serious than Alcohol Abuse. He

stated relapses for someone like Father are very common and occur more often than

not.

       {¶17} Ken Klingler testified that Father and Mother’s visits went well with the

children when the parents did attend (T. 140). Mother's incarceration precluded her from

attending during large stretches (T. 144). Father would regularly miss visits and would
Holmes County, Case No. 13CA004                                                         7


leave visits early due to transportation problems (T. 147). Father had to be warned

repeatedly not to discuss the case with his children (T. 153).

       {¶18} Mark Leinbach testified about his work in counseling with J.R. He worked

with J.R. for about six months after HCDJFS became involved. He stated that J.R.

made significant progress and Mr. Leinbach determined further counseling was not

needed. He stated J.R. made progress in dealing with the transition from home to foster

care and his problem behaviors at school decreased.

       {¶19} Patricia Tabereaux also testified about the progress of J.R. and M.R. She

testified they are both "doing great in foster care." She said both kids are involved in a

snowboarding club and J.R. is on the Merit Roll. She said she has seen both children

interact with their foster parents and both kids get along well with them. She summed up

her testimony by saying "[J.R.] and [M.R.] have improved a whole lot since being

removed from the care of their father and mother."

       {¶20} Two of J.R.'s teachers testified at the evidentiary hearing. Their testimony

showed J.R. was often tired and hungry when he came to school from his parents'

home. They said his work was never done and he lost a lot of weight. Their testimony

was that he did not do well with structure and rules, was messy, quite often angry,

obstinate and needed to be re-directed a lot. Ms. McDowell testified that while Jesse

was in his parents' care during the sixth grade he "missed many days of school."

       {¶21} Both teachers testified about the significant change they saw in J.R. after

he was placed in foster care. They report he has gained weight, is happy, well kept,

focused, has more friends and "is on the right track." They also reported his attendance

is very good at this time.
Holmes County, Case No. 13CA004                                                          8


      {¶22} Deb Yoder, J.R.'s foster mother testified that she and her family have a

strong bond with J.R. (T. 246). She indicated he is a pleasure to have in their home.

She stated J.R. looks up to her three sons and is considering a career in the military

after spending time with her son who is currently in the Air Force (T. 248). She also

indicated that J.R. is very good with younger children and he dotes on his toddler foster

sister (T. 247). She also noted that J.R. sees M.R. often as well as relatives such as Pat

Tabereaux. (T. 245). Mrs. Yoder indicated she has M.R. in her home so that J.R. can

visit her and the Yoder’s and M.R.'s foster parents, the DeWits,           take weekend

vacations together (T. 243-244). Mrs. Yoder stated that it is her intention to adopt J.R.

should permanent custody be granted to HCDJFS. (T. 249). She indicated M.R. was

having more trouble accepting foster care, but believed "she's not old enough to

understand" Ms. Yoder testified her family interacts with M.R.’s foster family on a

regular basis. She reported that M.R. stays in her home about every other weekend.

      {¶23} Attorney David Hunter, Guardian Ad Litem for both the children submitted

a written report to the Court prior to the evidentiary hearing. He recommended

HCDJFS's Motion for Permanent Custody be granted. The Court also conducted an in

camera interview of the children after the conclusion of the evidentiary hearing.

      {¶24} On March 1, 2013, the trial court filed Findings of Fact and Judgment

Entries in each child’s case, which terminated Father’s parental rights with respect to his

minor children and granted permanent custody of the children to HCDJFS.

      {¶25} It is from these entries that Father has appealed.

                                     Assignments of Error

      {¶26} On appeal, Father asserts the following assignment of error,
Holmes County, Case No. 13CA004                                                           9


      {¶27} “I. THE HOLMES COUNTY JUVENILE COURT ERRED BY FINDING

THAT IT WAS IN THE BEST INTERESTS OF BOTH CHILDREN TO TERMINATE

PARENTAL RIGHTS, AND THE ORDER OF PERMANENT CUSTODY WAS

OTHERWISE INSUFFICIENTLY SUPPORTED BY THE EVIDENCE.

      {¶28} “II. THE COURT LACKED JURISDICTION TO GRANT A MOTION FOR

PERMANENT       CUSTODY       OVER      OBJECTION       OF    COUNSEL        WHEN      THE

STATUTORY FRAMEWORK FOR SERVICE OF SUMMONS ON THE MOTION WAS

NOT COMPLIED WITH. THE COURT ALSO LACKED JURISDICTION BECAUSE THE

MOTION FAILS TO ALLEGE BEST INTERESTS. THE LATTER FACTOR IS PLAIN

ERROR.

      {¶29} “III. THE COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF

LEONARD RICE BY ADMITTING INTO EVIDENCE A DRUG TEST RESULT LACKING

IN PROPER FOUNDATION.

      {¶30} “IV. IT WAS ERROR TO TERMINATE FATHER'S PARENTAL RIGHTS

WHEN THE COURT HAD PREVIOUSLY DENIED HIS MOTION TO MODIFY

VISITATION WITHOUT A HEARING, IN VIOLATION OF DUE PROCESS.”

                                                I.

      {¶31} In his first assignment of error, Father argues that the trial court’s decision

granting permanent custody of his minor children was based upon insufficient evidence.

                                      A. Burden Of Proof

      {¶32} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
Holmes County, Case No. 13CA004                                                     10

and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a

parent's rights has been described as, “* * * the family law equivalent to the death

penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th

Dist.1991). Therefore, parents “must be afforded every procedural and substantive

protection the law allows.” Id.

       {¶33} An award of permanent custody must be based upon clear and convincing

evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and

convincing evidence” as “[t]he measure or degree of proof that will produce in the mind

of the trier of fact 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 required beyond a reasonable doubt as in criminal cases. It

does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-

104, 495 N.E.2d 23 (1986).

                                   B. Standard of Review

       {¶34} The Ohio Supreme Court has delineated our standard of review as

follows,

              Where 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 sufficient evidence before it to

       satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1,

       12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v.

       Rimenik, 115 Ohio St. 11, 152 N.E. 14.
Holmes County, Case No. 13CA004                                                           11

       {¶35} Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court

of appeals will affirm the trial court's findings “if the record contains competent, credible

evidence by which the court could have formed a firm belief or conviction that the

essential statutory elements for a termination of parental rights have been established.”

In re Adkins, 5th Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431,

2006 WL 242557, ¶17.

       {¶36} In Cross, the Supreme Court further cautioned,

              The mere number of witnesses, who may support a claim of one or

       the other of the parties to an action, is not to be taken as a basis for

       resolving disputed facts. The degree of proof required is determined by

       the impression which the testimony of the witnesses makes upon the trier

       of facts, and the character of the testimony itself. Credibility, intelligence,

       freedom from bias or prejudice, opportunity to be informed, the disposition

       to tell the truth or otherwise, and the probability or improbability of the

       statements made, are all tests of testimonial value. Where the evidence is

       in conflict, the trier of facts may determine what should be accepted as the

       truth and what should be rejected as false. See Rice v. City of Cleveland,

       114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

                      C. Requirements for Permanent Custody Awards

       {¶37} 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 filing of a motion for permanent custody of
Holmes County, Case No. 13CA004                                                      12


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.

      {¶38} 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, 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; or

             (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
Holmes County, Case No. 13CA004                                                     13


       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.

       {¶39} 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.

       {¶40} 1. The child had been in the temporary custody of the agency for a

period of time in excess of twelve of the prior twenty-two consecutive months –

R.C. 2151.414(B)(1)(d).

       {¶41} In the case sub judice, the trial court found, pursuant to R.C. 2151.

414(B)(1)(d) that the children had been in the temporary custody of the agency for a

period of time in excess of twelve of the prior twenty-two consecutive months.

       {¶42} Before a public children-services agency or private child-placing agency

can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child

must have been in the temporary custody of an agency for at least 12 months of a

consecutive 22–month period.” In re: C.W., 104 Ohio St.3d 163, 2004–Ohio–6411, 818

N.E.2d 1176 at paragraph one of the syllabus. When calculating this time period, the

court in C.W. cautioned, “the time that passes between the filing of a motion for
Holmes County, Case No. 13CA004                                                            14


permanent custody and the permanent-custody hearing does not count toward the 12–

month period set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004–Ohio–6411 at ¶ 26,

818 N.E.2d at 1180. Accord, In re: N.C., 5th Dist. No. 2011-CA-00141, 2011-Ohio-6113,

¶32.

       {¶43} In the case at bar, the grant of temporary custody of both children to

HCDJFS occurred on August 27, 2010. The motion for permanent custody was filed on

May 21, 2012. Thus, the children had been in the temporary custody of HCDJFS for at

least 12 months of a consecutive 22-month period at the time the motion for permanent

custody was filed1. Father has not challenged the twelve of twenty-two month finding.

       {¶44} This finding alone, in conjunction with a best-interest finding, is sufficient

to support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,

2008–Ohio–5458, ¶ 45.

                                  2. The Best Interest of the Children.

       {¶45} 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.



       1
           Aug. 22, 2010 to May 21, 2012 = 634 days (1yr., 8 months, 25 days).
Holmes County, Case No. 13CA004                                                           15


       {¶46} The focus of the “best interest” determination is upon the child, not the

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a

grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d

309, 315, 642 N.E.2d 424(8th Dist.1994). A finding that it is in the best interest of a child

to terminate the parental rights of one parent is not dependent upon the court making a

similar finding with respect to the other parent. The trial court would necessarily make a

separate determination concerning the best interest of the child with respect to the

rights of the mother and the rights of the father.

       {¶47} The trial court made findings of fact regarding the children’s best interest.

It is well-established that “[t]he discretion which the juvenile court enjoys in determining

whether an order of permanent custody is in the best interest of a child should be

accorded the utmost respect, given the nature of the proceeding and the impact the

court's determination will have on the lives of the parties concerned.” In re: Mauzy

Children, 5th Dist. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting In re

Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).

       {¶48} As an appellate court, we neither weigh the evidence nor judge the

credibility of 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. No. CA-5758, 1981 WL 6321(Feb. 10, 1982). “Reviewing courts

should accord deference to the trial court’s decision because the trial court has had the

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that

cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St.3d 71,

523 N.E.2d 846 (1988).
Holmes County, Case No. 13CA004                                                          16


       {¶49} In the present case, the trial court's decision indicates it considered the

best interest factors. Upon review of the record, it is clear that the record supports the

trial court's finding that granting the motion for permanent custody is in J.R.’s and M.R.’s

best interest. The trial court concluded the children's need for legally secure placement

could not be achieved without awarding permanent custody to HCDJFS.

       {¶50} The record makes clear that Father failed to complete the majority of the

case plan provided by HCDJFS and failed to meet even the basic needs of the children.

       {¶51} In the case at bar, in addition to the testimony, the trial court considered

the wishes of the children and the report of the GAL.

       {¶52} As set forth in our Statement of the Facts and Case, supra, Father failed

to remedy the problems that initially caused the removal of the child from the home.

Father was not consistent with his case plan. Very little if anything, has changed with

respect to Father since this case began. He does not have stable housing. He does not

have steady employment. He continues to battle problems with drugs and alcohol. He

continues to miss visitations and to be unable or unwilling to follow the rules when he

does have visits with the children.

       {¶53} On the other hand, the children have begun to accept that their parents

are unwilling or unable to do what is necessary to reunify the family. By the date of the

evidentiary hearing, the children had been in the custody of HCDJFS for almost 29

months.
Holmes County, Case No. 13CA004                                                        17


                                         D. Conclusion.

       {¶54} For these reasons, we find that the trial court’s decision that permanent

custody to HCDJFS was in J.R.’s and M.R.’s best interest was based upon competent,

credible evidence and is not against the manifest weight or sufficiency of the evidence.

       {¶55} Father’s first assignment of error is overruled.

                                                II.

       {¶56} In his second assignment of error, Father contends that the trial court

lacked jurisdiction to conduct a permanent custody proceeding because he was not

personally served with the motion for permanent custody.

       {¶57} R.C. 2151.414(A)(1) mandates the juvenile court must schedule a hearing

when a motion for permanent custody is filed, and provide notice of the filing of the

motion and of the hearing, in accordance with section 2151.29 of the Revised Code, to

all parties to the action and to the child's guardian ad litem. Service may be made by

delivering a copy to the person notified, by leaving a copy at the person's usual place of

residence, or be sent by registered or certified mail. R.C. 2151.29. Father is a proper

party pursuant to Juv. R. 2(Y); therefore, was entitled to notice.

       {¶58} Juv. R. Rule 20 reads:

       {¶59} (A) Service: when required

              Written notices, requests for discovery, designation of record on

       appeal and written motions, other than those which are heard ex parte,

       and similar papers shall be served upon each of the parties.

              (B) Service: how made
Holmes County, Case No. 13CA004                                                      18


              Whenever under these rules or by an order of the court service is

       required or permitted to be made upon a party represented by an attorney,

       the service shall be made upon the attorney unless service is ordered by

       the court upon the party. Service upon the attorney or upon the party shall

       be made in the manner provided in Civ. R. 5(B).

       {¶60} In the case at bar, the "PROOF OF SERVICE" on the permanent custody

motion certifies that a copy of the motion was served upon Court-appointed Counsel for

each parent and the Guardian ad litem. Such service of a copy of the motion on the

attorneys for the parents is consistent with Juv. R. 20(B).

       {¶61} As the record indicates, Father was present with counsel for both days of

the evidentiary hearing. Between the original filing of the motion for permanent custody

in May 2012 and the actual hearing in January 2013, Father subpoenaed witnesses on

his behalf and moved to have his children interviewed in camera by the trial court.

Father further filed a motion to dismiss on June 11, 2012.

       {¶62} It is clear Father knew HCDJFS filed a motion to terminate his parental

rights and the trial date. Father was represented by counsel at the hearing. We find

Father was provided with appropriate notice of the permanent custody hearing.

       {¶63} Father’s second assignment of error is overruled.

                                                III.

       {¶64} In his third assignment of error, Father argues that the November 7, 2012

drug screen test of Father that indicated the presence of cocaine in Father’s system

was improperly admitted into evidence.
Holmes County, Case No. 13CA004                                                       19

      {¶65} At the outset we note in Williams v. Illinois, ––– U.S. ––––, 132 S.Ct.

2221, 183 L.Ed. 2d 89 (2012), the Supreme Court tackled the constitutionality of

allowing an expert witness to discuss a non-testifying expert's statements when the non-

testifying expert's statements are not admitted in evidence.

      {¶66} The defendant in Williams was convicted of rape. At trial, the prosecution

called an expert witness who testified that a DNA profile produced by an outside

laboratory, Cellmark, matched a profile produced by the state police lab using a sample

of the defendant's blood. Id. at 2227. The defendant in Williams argued that the

Confrontation Clause was violated when the witness “referred to the DNA profile

provided by Cellmark as having been produced from semen found on the victim's

vaginal swabs.” Id. According to the defendant, his right to confrontation was violated

because the witness did not have personal knowledge that the profile produced by

Cellmark was based on vaginal swabs taken from the victim.

      {¶67} Justice Alito, Chief Justice Roberts, Justice Kennedy, and Justice Breyer

reasoned that the testifying expert could discuss the non-testifying expert’s statements

because the non-testifying expert's statements were not offered for their truth, but only

to explain the assumption on which the testifying expert based her opinion. Id. at 2235–

40. In dissent, Justices Kagan, Scalia, Ginsburg, and Sotomayor concluded that the

non-testifying expert's statements were being offered for their truth and were

testimonial, and thus found a Confrontation Clause violation. Id. at 2268– 72 (Kagan, J.,

dissenting). In a concurring opinion, Justice Thomas agreed that the non-testifying

expert's statements were offered for their truth but concluded that they “lacked the

requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the
Holmes County, Case No. 13CA004                                                         20

Confrontation Clause.” Id. at 2255 (Thomas, J., concurring). Accord, U.S. v. Soto,

__F.3d__, 2013 WL 3156598(1st Cir. June 24, 2013).

       {¶68} In addition, even if error occurred in the admission of the test results, it

was harmless. We note that any error will be deemed harmless if it did not affect the

accused's “substantial rights.” Before constitutional error can be considered harmless,

we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

United States v. Chapman, 386 U.S.18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where

there is no reasonable possibility that unlawful testimony contributed to a conviction, the

error is harmless and therefore will not be grounds for reversal. State v. Conway, 108

Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman; State v. Lytle,

48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in

part on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d

1154(1978).

       {¶69} In the case at bar, evidence independent of the test results was introduced

concerning Father’s battle with drug and alcohol abuse. Father has failed to establish

that absent the admission of the November 7, 2012 test results, the trial court would

have denied HCDJFS’ motion for permanent custody.

       {¶70} Father’s third assignment of error is denied.

                                               IV.

       {¶71} In his fourth assignment of error, Father argues that he was denied due

process by the court’s denial of his motion to modify visitation without a hearing.

       {¶72} “A fundamental requirement of due process is ‘the opportunity to be heard’

* * * at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S.
Holmes County, Case No. 13CA004                                                          21


545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). “Due process of law implies, in its most

comprehensive sense, the right of the person affected thereby to be present before the

tribunal * * * to be heard, by testimony or otherwise, and to have the right of

controverting, by proof, every material fact which bears on the question of right in the

matter involved.” Williams v. Dollison, 62 Ohio St.2d 297, 299, 405 N.E.2d 714(1980).

       {¶73} In the case at bar, Father was given an opportunity to demonstrate his

fitness and ability to parent his children at the evidentiary hearing on the motion for

permanent custody. Evidence at that hearing demonstrated that when offered additional

visitation time with the children under supervision, Father declined.

       {¶74} The children love Father and Father loves his children and has developed

a bond. The evidence demonstrated the successful efforts Father had made in the case

to regain custody of his children. On that point, the evidence demonstrates that any

improvement that Father has made in his life is tentative and, perhaps, temporary, and

that he is at risk of relapse. The trial court found that, regardless of Father’s compliance

with aspects of his case plan, he was still not able to be a successful parent to his

children. In the case of In re: Summerfield, 5th Dist. No. 2005CA00139, 2005-Ohio-

5523, this court found where, despite marginal compliance with some aspects of the

case plan, the exact problems that led to the initial removal remained in existence, a

court does not err in finding the child cannot be placed with the parent within a

reasonable time.

       {¶75} Based upon the foregoing, as well as the entire record in this case, the

trial court properly denied Father’s motion to modify visitation.
Holmes County, Case No. 13CA004                                                     22


      {¶76} Because clear and convincing evidence in the record supports the trial

court’s judgment, we overrule Father’s four assignments of error in their entirety, and

the judgment of the Holmes County Court of Common Pleas, Juvenile Court Division is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            _________________________________
                                            HON. JOHN W. WISE



WSG:clw 0703
[Cite as In re L.R., 2013-Ohio-3104.]


               IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF: L.R., M.R.                   :
                                               :
                                               :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NO. 13CA004




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Holmes County Court of Common Pleas, Juvenile Court Division is

affirmed.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN


                                                   _________________________________
                                                   HON. JOHN W. WISE
