[Cite as In re M.G., 2014-Ohio-975.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        GEAUGA COUNTY, OHIO


IN THE MATTER OF: M.G. AND B.G.,                      :        OPINION
DEPENDENT CHILDREN.
                                                      :        CASE NO. 2013-G-3165




Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division.
Case No. 11 JF 000046.

Judgment: Affirmed.


Brendan J. Kohrs, 421 Graham Road, Suite F, Cuyahoga Falls, OH                     44221 (For
Appellant Daniel Grover).

James R. Flaiz, Geauga County Prosecutor, and Craig A. Swenson, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Appellee
Geauga County Job and Family Services).

Sarah L. Heffter, 401 South Street, Suite 2-B, Chardon, OH 44024 (Guardian ad
litem).



TIMOTHY P. CANNON, P.J.

        {¶1}    Appellant, Daniel Grover, appeals the judgment of the Geauga County

Court of Common Pleas, Juvenile Division, terminating his parental rights concerning

his sons, M.G. and B.G.                Upon review of the record, the trial court’s conclusions

concerning the best interest of the minor children are supported by competent, credible

evidence and, where required, are sufficient to support those findings by clear and

convincing evidence. Accordingly, we must affirm the judgment.
       {¶2}   The Geauga County Department of Job and Family Services (“GCJFS”)

filed a complaint on January 24, 2011, seeking temporary custody of appellant’s two

children, M.G. and B.G., born January 21, 2011.            The complaint was based on

allegations that the children’s mother suffered from schizophrenia and that she was

unable to serve as a suitable parent of the twins. The twins remained in their parents’

custody, under court supervision, until the trial court granted GCJFS’ motion for

emergency custody in July 2011. Initially, the mother had to be supervised while caring

for the twins, primarily by appellant. When appellant left the home, B.G. and M.G. were

removed and placed in temporary custody of GCJFS on July 14, 2011.

       {¶3}   GCJFS implemented a case plan with the goal of reunification. GCJFS

first filed a motion for permanent custody on September 16, 2011. After hearings, the

trial court denied the motion. GCJFS filed a second motion for permanent custody on

August 13, 2012. Again, after a hearing, the trial court denied the motion for permanent

custody. In doing so, the trial court issued “protective orders” for appellant, as follows:

              The Court further orders that mother shall be required to have
              supervision or childcare assistance when alone with the children
              until further order of the Court. Father shall be required to provide
              such supervision and/or assistance to mother and father is hereby
              ordered not to permit the children to be alone with mother without
              such supervision or assistance unless otherwise ordered in writing
              by the Court. If father or mother physically separate, father shall be
              responsible for maintaining the safety and security of the children.

       {¶4}   On January 24, 2013, GCJFS filed a third motion for permanent custody.

In that motion, GCJFS noted that its temporary custody of the twins would typically

terminate effective January 24, 2013, because that “would be two years from the date

the complaint was filed in this case.” GCJFS also stated it was seeking permanent

custody of the twins because the concerns that led to their removal from their parents’



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custody still remain. On September 25, 2013, following a hearing, the trial court granted

GCJFS’ motion for permanent custody.

       {¶5}   Appellant filed a timely notice of appeal.

       {¶6}   Appellant’s first assignment of error states:

       {¶7}   “The trial court failed to sign the Nunc Pro Tunc Judgment Entry dated

September 25, 2013, as required by Civil Rule 58(A).”

       {¶8}   Appellant argues the trial court failed to sign the judgment entry dated

September 25, 2013, as required by Civ.R. 58(A). A review of such judgment entry

indicates that it is, in fact, signed by the trial court. Consequently, appellant’s first

assignment of error is without merit.

       {¶9}   As his second assignment of error, appellant maintains:

       {¶10} “The Trial Court erred in finding that a grant of permanent custody was in

the best interest of M.G. and B.G. and was not supported by Clear and Convincing

Evidence as against the manifest weight of the evidence.”

       {¶11} We recognize that the termination of parental rights is “the family law

equivalent of the death penalty.” In re Phillips, 11th Dist. No. 2005-A-0020, 2005-Ohio-

3774, ¶22, citing In re Hoffman, 97 Ohio St.3d 92, 95 (2002). This court has stated that

a parent is entitled to “fundamentally fair procedures in accordance with the due

process provisions under the Fourteenth Amendment to the United States Constitution

and Section 16, Article I of the Ohio Constitution.” In re Sheffey, 167 Ohio App.3d 141,

147 (11th Dist.2006).

       {¶12} R.C. 2151.414 provides the two-pronged analysis a trial court must follow

in permanent custody proceedings. Pursuant to R.C. 2151.414(B)(1), a trial court may




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grant permanent custody if the court determines at the permanent custody hearing—by

clear and convincing evidence—that 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.

             (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.

      {¶13} Appellant does not dispute the applicability of subsection (d) in this case:

both M.G. and B.G have been in the temporary custody of GCDJFS for at least 12

months of a consecutive 22-month period. In fact, the record indicates that M.G. and

B.G. had been in the custody of GCDJFS for over 18 months at the time GCJFS filed its

third motion for permanent custody.




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       {¶14} Having determined that one of the four factors in R.C. 2151.414(B)(1)(a)-

(d) apply, the trial court must next decide, by clear and convincing evidence, whether

the award of permanent custody to an agency is in the child’s best interest based upon

a non-exclusive list of relevant factors set forth in R.C. 2151.414(D)(1):

              (a) The interaction and interrelationship of the child with the child’s
              parents, siblings, relatives, foster caregivers and out-of-home
              providers, and any other person who may significantly affect the
              child;

              (b) 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;

              (c) The custodial history of the child, including whether 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;

              (d) 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 to the agency;

              (e) Whether any of the factors in divisions (E)(7) to (11) of this
              section apply in relation to the parents and child.

       {¶15} “Clear and convincing evidence is more than a mere preponderance of the

evidence; instead, it is evidence sufficient to produce in the mind of the trier of fact a

firm belief or conviction as to the facts sought to be established.” In re Aiken, 11th Dist.

Lake No. 2005-L-094, 2005-Ohio-6146, ¶28.

       {¶16} In addition, R.C. 2151.414(D)(2) states, “[i]f all of the following apply,

permanent custody is in the best interest of the child and the court shall commit the



                                             5
child to the permanent custody of a public children services agency or private child

placing agency:

             (a) The court determines by clear and convincing evidence that one
             or more of the factors in division (E) of this section exist and the
             child cannot be placed with one of the child’s parents within a
             reasonable time or should not be placed with either parent.

             (b) The child has been in an agency’s custody for two years or
             longer, and no longer qualifies for temporary custody pursuant to
             division (D) of section 2151.415 of the Revised Code.

             (c) The child does not meet the requirements for a planned
             permanent living arrangement pursuant to division (A)(5) of section
             2151.353 of the Revised Code.

             (d) Prior to the dispositional hearing, no relative or other interested
             person has filed, or has been identified in, a motion for legal
             custody of the child.

      {¶17} In its judgment entry, the trial court examined both of the aforementioned

“best interest” prongs—R.C. 2151.414(D)(1) and R.C. 2151.414(D)(2).              The civil

manifest weight of the evidence standard is applied to appellate review of cases

involving the termination of parental rights: “if the trial court’s grant of permanent

custody to the county is supported by some competent, credible evidence, we must

affirm the court’s decision.” In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-

1293, ¶91. However this must be stated in relation to the trial court’s standard, as we

must determine if there is competent, credible evidence in the record that would allow

the trial court to have made its determinations by clear and convincing evidence.

      {¶18} ‘[I]nherent within R.C. 2151.414(B)(1)(d) rests the finding that the
            parent is unable, unsuitable, or unfit to care for the child. If the
            child has been placed in a children services agency’s temporary
            custody for at least twelve months of the prior twenty-two months,
            some reason must exist why the child has not been in the parent’s
            care. The reason normally would be because the parent has been




                                            6
              unable to demonstrate that the parent is able, suitable, or fit to care
              for the child.’

In re A.J. and S.M., 11th Dist. Trumbull No. 2010-T-0041, 2010-Ohio-4553, ¶42, quoting

In re Workman, 4th Dist. Vinton No. 02CA574, 2003-Ohio-2220, ¶39. In effect, if a

parent has failed to achieve reunification within 12 months of a 22 month period, a

justifiable presumption of parental unfitness arises. See In re A.J. and S.M. at ¶43. In

its entry, the trial court found that appellant had not rebutted the presumption of parental

unfitness.

       {¶19} On appeal, appellant argues the trial court’s granting of GCJFS’s motion

for permanent custody decision was based upon insufficient evidence. In his appellate

brief, appellant frequently cites to testimony that occurred at the hearings relating to

GCJFS’s two previous motions for permanent custody, which were denied by the trial

court. The order that is the subject of the instant appeal, however, addresses only the

testimony and evidence presented at the hearing on the third motion for permanent

custody. The evidence and testimony from the two prior hearings is relevant only with

respect to whether the circumstances have or have not changed from the time those

hearings occurred.

       {¶20} At the hearing on the third motion for permanent custody, the trial court

heard testimony from Michelle Warren, a GCJFS social worker; Jennifer Moore-

Mallinos, an early childhood mental health consultant with Catholic Charities; Darlene

Grover, appellant’s mother; Susan Whittaker, a psychiatric nurse practitioner with

Beacon Health; Steve Roos, a therapist with Beacon Health; Dr. Nancy Huntsman, a

psychologist; Jim [last name intentionally deleted], the foster parent; and Attorney Sarah

Heffter, the guardian ad litem. Also present were appellant and the children’s mother,



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both represented by counsel. Issues relating to the credibility of witnesses and the

weight to be given to the evidence are primarily for the trier of fact to decide. Seasons

Coal v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Deferring to the trial court on matters of

credibility is “crucial in a child custody case, where there may be much evident in the

parties’ demeanor and attitude that does not translate to the record well.” Davis v.

Flickinger, 77 Ohio St.3d 415, 419 (1997).

      {¶21} We first analyze whether the trial court’s conclusions with regard to the

factors enumerated in R.C. 2151.414(D)(1) are supported by competent and credible

evidence, thus allowing the trial court to make its determination by clear and convincing

evidence.

      {¶22} The record contains evidence that illustrates the interaction and

interrelationship of the children with the children’s parents and foster parents. R.C.

2151.414(D)(1)(a). The trial court found, and the record supports the finding, that the

twins have bonded with their foster parents and are thriving in that environment. Ms.

Michelle Warren, the GCJFS caseworker, testified that she would like to see appellant

more involved during the visits and more nurturing toward the children. Ms. Warren

noted that, despite appellant’s awareness that one of the twins has a breathing

condition, she observed appellant smoking cigarettes while the twins were in the car.

She also testified that when one of the twins hit his head, appellant remained in the

kitchen instead of checking on the child. Conversely, Ms. Warren noted that appellant

did read to the children and that the children recognize appellant. The guardian ad

litem, Sarah Heffter, expressed that the situation has not only failed to improve since the

last permanent custody hearing, but it has regressed. R.C. 2151.414(D)(1)(b).




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       {¶23} Moreover, there is the matter of the custodial history of the twins, as well

as their need for a legally-secure, permanent placement, and whether that type of

placement could be achieved without a grant of permanent custody to the county. R.C.

2151.414(D)(1)(c)-(d). The twins have been in foster care for most of their lives. They

were placed in foster care when appellant left the home, as he had been required to

supervise his wife while she was with the children. He was never to leave her alone

with them. When GCJFS obtained temporary custody, a case plan went into effect with

the goal of reunification. A case plan was established that addressed his wife’s mental

health and required appellant to support his wife. During the pendency of this case,

appellant’s wife was diagnosed with schizophrenia and began receiving bi-weekly

injections of anti-psychotic medication.     The trial court noted that the length of

temporary custody by GCJFS was necessary to address his wife’s illness.

       {¶24} Noting that appellant does not have any relatives or other potential

placements for the children, the trial court addressed whether appellant could provide a

legally secure placement for the twins. The trial court recognized that the possibility of

future removal of the twins does not support termination and, therefore, focused on the

present and ongoing issue of the children’s safety.      See In re Williams, 11th Dist.

Geauga Nos. 2003-G-2498 & 2003-G-2499, 2003-Ohio-3550, ¶44.                  The record

demonstrates that there are significant concerns with the twins’ safety because of his

wife’s schizophrenia and appellant’s failure to supervise her while with the children. The

evidence demonstrates that appellant’s wife exhibits lapses in focus and parental

judgment, and appellant has continually failed to provide supervision, in contravention to

the trial court’s protective order.




                                            9
       {¶25} The record demonstrates that appellant allowed his wife to take the

children for a walk unsupervised. Ms. Moore testified that she observed appellant’s wife

cross the street while pushing the twins in the stroller without looking for oncoming

traffic. When questioned, appellant did not comprehend the need for his supervision.

Despite being required to do so, appellant repeatedly failed to provide his work

schedule so that visitation with the twins could take place. In fact, appellant neither

provided the name of an individual that could supervise visitation nor did he provide any

plan for the twins’ care when he was out of the home. There was also testimony that

appellant slept through some of the visitations despite being ordered to supervise his

wife with the children.

       {¶26} The trial court further assessed the factors set forth in R.C.

2151.414(E)(7)–(11). The trial court noted that although appellant has two children that

have been removed from his care, he has never had his parental rights involuntarily

terminated. Therefore, none of the factors enumerated in R.C. 2151.414(E)(7)-(11)

were applicable to appellant.

       {¶27} We hold that the competent, credible evidence at the permanent custody

hearing clearly and convincingly supports the trial court’s determination that it is in the

best interest of the minor children to be permanently placed in the custody of GCJFS.

       {¶28} Next, we analyze whether the trial court’s finding that the present case

exhibits the four factors enumerated in R.C. 2151.414(D)(2) was supported by

competent, credible evidence to meet the required standard. As noted above, section

(D)(2)(a) indicates the trial court must find, by clear and convincing evidence, “that one

or more of the factors in division (E) of this section exist and the child cannot be placed




                                            10
with one of the child’s parents within a reasonable time or should not be placed with

either parent.” The trial court found, and the record supports a finding by clear and

convincing evidence, that appellant has continuously failed to substantially remedy the

conditions causing the child to be placed outside appellant’s home and chronic mental

illness that is so severe it makes the parent unable to provide an adequate permanent

home for the child. R.C. 2151.414(E)(1)-(2).

       {¶29} Ms. Warren testified that appellant did not utilize the many forms of

support offered. For instance, when confronted with an issue regarding the lack of an

individual to supervise appellant with visitation, Ms. Warren set-up a “care.com” account

to explore candidates to provide supervision during visits with the children. Appellant

was required to finish this process, but he failed to do so.

       {¶30} The trial court recognized that a mental health condition, alone, did not

make the children’s mother an “unsuitable” parent. Instead, the trial court found the

absence of an adequate home because of the mental health condition and appellant’s

failure to comply with the supervision order at all times. The testimony presented at the

hearing supports the trial court’s finding that appellant’s wife still suffers from lapses that

would impair her ability to attend to the twins. The record demonstrates that there is a

concern for the twins’ well-being and that appellant’s wife would need to be supervised

while with the children. Appellant, however, is unable to supervise the twins due to his

work schedule, and there is a lack of individuals whom could provide such supervision.

Furthermore, appellant has continuously failed to provide the court-ordered supervision

and to appreciate the need for this supervision. The court further found that appellant

failed to remedy that concern despite ample opportunity to do so.             Without proper




                                              11
supervision, the safety of the twins would be compromised. The record supports the

trial court’s finding that “the requisite supervision necessary to protect the children if

reunified with their parents is non-existent at this time and with respect to the

foreseeable future.”

       {¶31} The record further establishes that the twins have also been in the custody

of GCJFS for more than two years. R.C. 2151.414(D)(2)(b). Moreover, the twins do not

meet the requirements for a planned permanent living arrangement (“PPLA”). In In re

A.B., 110 Ohio St.3d 230 (2006), the Ohio Supreme Court held that unless the children

services agency moves for a PPLA placement of the child, pursuant to R.C.

2151.353(A)(5), the trial court lacks authority to consider such a dispositional option. In

this case, there is no indication the agency sought a PPLA as an alternative to

permanent custody. Accordingly, placement into a PPLA was not a viable dispositional

order in this case. Further, no motions for legal custody of the twins have been filed

with the trial court by anyone other than appellant and GCJFS.                  See R.C.

2151.414(D)(2)(d).

       {¶32} We find that the competent, credible evidence at the permanent custody

hearing supports the trial court’s determination, where required by clear and convincing

evidence and otherwise, that the factors enumerated in R.C. 2151.414(D)(2) exist.

Therefore, the determination of the trial court that permanent custody is in the best

interest of the children and that the minor children are to be permanently placed in the

custody of GCJFS should be affirmed.

       {¶33} Appellant’s second assignment of error is without merit.




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      {¶34} Based on the opinion of this court, the judgment of the Geauga County

Court of Common Pleas, Juvenile Division, is hereby affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

                               ____________________


COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

      {¶35} The difficulties associated with mental illness are complicated by the

challenges of parenting two small children. The difficulties of being a parent and the

spouse of a person with mental illness are challenging even on the best of days. The

mother’s and father’s inability to follow a case plan and a safety plan which would keep

these children safe is the primary reason in the record for the granting of permanent

custody. I understand the arguments raised by the parents in this matter: if intensive

community support were available they may have had the ability to successfully parent

these children and keep them safe. Sadly, the statute as written by the legislature does

not require such efforts by the community.

      {¶36} Reluctantly, I must concur.




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