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Timothy Cantrell, et al. v. Erica L. Trinkle

October 14, 2011

TIMOTHY CANTRELL, ET AL.
PLAINTIFF-APPELLEE
v.
ERICA L. TRINKLE DEFENDANT-APPELLANT



Trial Court Case No. 08-JUV-400 (Civil Appeal from (Common Pleas Court)

The opinion of the court was delivered by: Fain, J.

Cite as Cantrell v. Trinkle,

CLARK COUNTY

OPINION

{¶1} Defendant-appellant Erica Trinkle appeals from a judgment of the Clark County Common Pleas Court, Juvenile Section, awarding custody of Trinkle's child to the child's paternal grandparents, Tracy and Randy Wood. (Tracy Wood is the child's paternal grandmother, and Randy Wood is married to Tracy, making him the child's step-grandfather.) Trinkle contends that the Juvenile Court's finding that she is an unsuitable parent is against the manifest weight of the evidence. She further contends that the court denied her right to Due Process and that the trial court made several procedural errors.

{¶2} We conclude that the Juvenile Court's finding that Trinkle is an unsuitable parent is against the manifest weight of the evidence. When we weigh the evidence in this record, as permitted by App.R. 12(C), we conclude that Trinkle is not an unsuitable parent, and we accordingly reverse the judgment of the Juvenile Court. Trinkle's claims of procedural errors and the denial of her due process rights are thereby rendered moot.

{¶3} I

{¶4} Timothy Cantrell and Erica Trinkle were never married, but had a child, C.C., together on September 21, 2007. The couple lived with the child in a mobile home purchased by Cantrell's mother, Tracy Wood.

{¶5} While the couple were still living together, in March 2008, the child was left with Trinkle's parents on one occasion while Trinkle was at work. Trinkle's father took the child out in a vehicle and ran into a pole. The child was in a safety seat and was not hurt. It is suggested that Trinkle's father was intoxicated at the time, but there is no proof of that fact in this record.

{¶6} A referral was made to Clark County Children's Services (CCCS), which opened a case, but filed no legal action. In October 2008, Trinkle and Cantrell entered into a voluntary case plan with CCCS wherein they agreed to undergo mental health assessments (along with any recommended follow-up counseling), complete parenting classes, complete the Help Me Grow program, and refrain from leaving the child alone with anyone who might be intoxicated by drugs or alcohol. Neither Trinkle nor Cantrell complied with all of these requirements. CCCS closed the case in December 2008.

{¶7} During the course of the intervention by CCCS, Trinkle and Cantrell ended their relationship in June 2008. Thereafter, Trinkle and C.C. moved into the residence of Trinkle's aunt, Michelle Jacobs.

{¶8} On June 27, 2008, Cantrell filed a Complaint for Custody of the child in the Juvenile Section of the Domestic Relations Division of the Clark County Common Pleas Court. Cantrell alleged that Trinkle used illicit drugs, left the child with unsuitable persons, and failed to take the child to health appointments. An ex parte order was entered granting temporary custody to Cantrell. But this ex parte order was dissolved on July 16, 2008, following a review hearing, and custody was restored to Trinkle.

{¶9} The custody matter was set for hearing. In August 2008, Trinkle moved into subsidized housing with the child. In October 2008, Trinkle and Cantrell reconciled. Cantrell moved back in with his parents, and Trinkle and the child would stay overnight with Cantrell on a somewhat regular basis. On February 27, 2009, the parties entered into an Agreed Order that named Trinkle residential and custodial parent of the child. Cantrell was given visitation rights. This order also required the parties to complete the voluntary case plan established by CCCS. The order provided that "the parties shall utilize Randy and Tracy Wood, the minor child's paternal grandparents for child care at times when both parents are working. In addition, at any time when the child is not in the care of the parents or Randy and/or Tracy Wood, the child is to be left in the care of a responsible party agreed upon by the parties."

{¶10} Trinkle and Cantrell separated again in April 2009, and Trinkle and the child lived in Trinkle's housing from April 2009 until September 3, 2010.

{¶11} On September 3, 2010, the Woods filed a motion seeking to join the Juvenile Court action as parties defendant. They also filed a motion for ex parte custody of the child, based upon an affidavit of Tracy Woods in which she averred in pertinent part as follows:

{¶12} "7. I fear for the safety of [C.C.]. [Cantrell and Trinkle have failed to complete] the Children's Services Case Plan and [Trinkle] continues to ignore the Court's order by leaving the child with people without [Cantrell's] agreement, including her father who was the cause of Timothy gaining temporary custody by ex-parte order in 2008.

{¶13} "8. I further fear for the safety of my grandson because [Trinkle] has failed to renew his Molina Healthcare and I believe she is using marijuana and partying when she should be caring for her child.

{¶14} "9. I further fear for the safety of my child [sic] because since this Court's last order of February 27, 2009, I have hearing [sic] [Trinkle] saying such things as, 'If I

can't have him, nobody can have him, that she needs mental health treatment, that the child has ruined her life, and I will fight you to the death for [C.C.]."

{¶15} The Woods also filed a motion seeking hair follicle testing on both Cantrell and Trinkle. All these motions were granted on the same day they were filed, and the Woods took custody of the child. The hair follicle testing was returned to the Court and was positive for Cantrell for cocaine, but negative for Trinkle. Trinkle opposed the change of custody.

{¶16} Hearings were conducted on December 15, 2010 and continued on January 24, February 3, 9 and 11, 2011. During the hearings, the Guardian Ad Litem appointed in the case recommended that temporary custody remain with the Woods for six months to permit Trinkle to demonstrate that she is "serious" about regaining custody. The GAL testified that while Trinkle had completed the mental health assessment, she failed to attend mental health counseling as recommended following her assessment.*fn1 The GAL testified that Trinkle needed to demonstrate that she is "serious" about parenting and that she can properly parent the child. The GAL stated that in order to convince him of her seriousness she needs to "get away from partying, settle down and build a home." The GAL noted the only allegations he had regarding Trinkle's propensity for "partying" were made by Cantrell and the Woods. The GAL testified that he had not been able to verify the truth or falsity of those allegations.

{¶17} Cantrell also testified at the hearings on January 24, 2011. He testified that he thought Trinkle should have custody of the child so long as she takes him to his medical appointments and keeps medical insurance available for him. He admitted that he still has "feelings" for Trinkle. He further testified that he and Trinkle had used "illegal drugs" in the past, but did not specify a time frame except to say that he thought it was around the time the child was born. He then testified that the last time he had seen Trinkle use drugs was when they "first got together" as a couple. He also defined the "illegal drugs" as marijuana. Cantrell further testified that he spent three nights with Trinkle between December 15, 2010 and January 24, 2011 and that they "went to a pool hall a couple times." He testified that during that time period they drank alcohol, but did not use illegal drugs.

{ΒΆ18} Randy Wood testified that he is concerned that Trinkle cannot care for the child. Specifically, he testified that both Cantrell and Trinkle told him they had a problem with illegal drug usage. Wood made reference to both Cantrell and Trinkle using Percocets, while Cantrell also used cocaine and Trinkle also used marijuana. Randy Wood testified that they talked about this usage some time after the child was born; but his testimony is not ...


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