Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re T.C.

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 10, 2019

IN THE MATTER OF: T.C., JR., ABUSED, NEGLECTE AND DEPENDANT CHILD

          Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 2017 JC 00172.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Ashtabula County Children Services Board).

          David E. Koerner, Law Office of David E. Koerner, (For Terrance Clark, Sr.).

          Carmen Marie Hamper, P.O. (Guardian ad litem).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} Appellant, Terrance Clark, Sr. ("Mr. Clark"), appeals the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, granting legal custody of his son, T.C., to a third party and dismissing his motion for legal custody for failure to prosecute.

         {¶2} We find: (1) the trial court did not abuse its discretion by dismissing Mr. Clark's motion for legal custody for failure to prosecute, but the dismissal should have been without prejudice; (2) the trial court was not legally required to determine Mr. Clark's unsuitability at the evidentiary hearing on the competing motions for legal custody; (3) the trial court did not abuse its discretion by accepting evidentiary stipulations from Mr. Clark's counsel; and (4) the trial court's granting of legal custody of T.C. to a third party was not against the manifest weight of the evidence.

         {¶3} For the reasons that follow, we modify the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, to state that the dismissal of Mr. Clark's motion is without prejudice and affirm as modified.

         Substantive History and Procedural Background

         {¶4} On August 28, 2017, the trial court granted ex parte emergency temporary custody of T.C. to the Ashtabula County Children Services Board ("ACCSB") due to T.C. being in immediate danger from his surroundings.

         {¶5} On August 30, 2017, ACCSB filed a verified complaint for temporary custody alleging T.C. was an abused, neglected, and dependent child. Specifically, ACCSB alleged that the Ashtabula County Sheriff's Department responded to a call regarding theft of a wallet by T.C.'s mother, Gloria Fortney ("Ms. Fortney"). Upon arrival at her residence in Ashtabula, Ohio, the deputies observed a tray of drug paraphernalia, including pills, white powder, foil, razor blades, and other unknown substances on the floor next to the baby's bassinet. Deputies reported that Ms. Fortney and the maternal grandparents were out of control and screaming and that Ms. Fortney picked up T.C. and ran around the house with him in one arm, screaming at them.

         {¶6} ACCSB responded to the scene and observed the drugs and paraphernalia next to the bassinet. ACCSB determined that Ms. Fortney and the grandparents appeared unable to care for T.C. safely at that time and no appropriate relatives were identified.

         {¶7} According to the complaint, ACCSB had just "closed the case" due to Ms. Fortney's noncompliance. T.C. had spent two weeks in the hospital due to withdrawal, and Ms. Fortney never entered substance abuse treatment or complied with requested drugs screens or services.

         {¶8} The magistrate held a shelter care hearing on August 30, 2017. Ms. Fortney appeared with counsel and stipulated to a finding of probable cause. T.C.'s father, Mr. Clark, was incarcerated and unavailable. The magistrate appointed counsel for Ms. Fortney, appointed a guardian ad litem ("GAL"), and ordered ACCSB to continue temporary custody of T.C.

         {¶9} The magistrate held an adjudicatory hearing on September 26, 2017. Mr. Clark appeared, and the magistrate appointed counsel for him. Ms. Fortney also appeared with counsel. Mr. Clark and Ms. Fortney stipulated to a finding of dependency, and ACCSB moved to dismiss the allegations of abuse and neglect. The magistrate ordered ACCSB to continue temporary custody of T.C.

         {¶10} The magistrate held a disposition hearing on October 23, 2017. Mr. Clark and Ms. Fortney both appeared and were represented by counsel. The evidence presented indicated as follows: (1) The case plan required Ms. Fortney and Mr. Clark to demonstrate sobriety and to address any identified mental health needs. The case plan further required Ms. Fortney to demonstrate an ability to parent, including completion of a parenting class, and to obtain stable housing; (2) Ms. Fortney had begun working toward stabilizing her housing situation and engaging in mental health and substance abuse services; (3) Mr. Clark completed an assessment and was waiting for the beginning of counseling for anger management and parenting. He had been paying child support and was hoping to gain placement of T.C. Mr. Clark was on parole with anticipated successful completion by March of 2018; and (4) T.C. was in the care of Ms. Fortney's cousin and was doing well. The parents had engaged in supervised visits.

         {¶11} The GAL recommended that ACCSB continue temporary custody of T.C.

         {¶12} The magistrate determined T.C.'s continued residence in or return to the home would be contrary to his best interest and welfare and ordered ACCSB to continue temporary custody of T.C.

         {¶13} The trial court subsequently adopted the magistrate's decisions regarding adjudication and disposition.

         {¶14} On March 26, 2018, ACCSB filed a motion to terminate temporary custody and grant legal custody to a Dawn Rife ("Ms. Rife"), a third party. According to the affidavit in support of ACCSB's motion, Ms. Fortney showed little to no effort in working toward the case plan goals. While Mr. Clark had completed counseling and anger management classes and maintained a stable place of residence, there were eight police reports of possible domestic violence instances involving Mr. Clark and Ms. Fortney between November, 2017 and March, 2018.

         {¶15} On March 29, 2018, Mr. Clark filed his own motion for legal custody. Mr. Clark asserted that he was not involved in the activities that led to the proceedings, he had stable housing and steady income, and he had completed his case plan. He further asserted that the eight calls to police regarding "domestic situations" with Ms. Fortney did not result in any arrests or convictions.

         {¶16} The trial court held an evidentiary hearing on these motions on October 4, 2018. Ms. Fortney did not appear, although her counsel was present.

         {¶17} Mr. Clark was present at court prior to the hearing. His counsel attempted to discuss with him the results of his drug screens. According to Mr. Clark's counsel, Mr. Clark said, "I'm done," pulled out his phone, called for a cab, and left.

         {¶18} At the hearing, ACCSB moved for dismissal of Mr. Clark's motion for failure to prosecute based on Mr. Clark's sudden departure. Mr. Clark's counsel indicated he was not prepared to move forward on the motion due to the absence of his witness. Therefore, the trial court dismissed Mr. Clark's motion for failure to prosecute.

         {¶19} ACCSB offered five exhibits into evidence as stipulations, including (1) a drug screen result from April of 2018 showing that Mr. Clark tested positive for THC, (2) a drug screen result from May of 2018 showing that Mr. Clark tested positive for amphetamine, methamphetamine, and THC, (3) a drug screen result from August of 2018 showing that Mr. Clark tested positive for methamphetamine, (4) a judgment entry of guilty plea and sentence in which Mr. Clark was convicted of having weapons while under disability in 2015, and (5) a judgment entry of plea and sentencing in which Mr. Clark was convicted of possession of cocaine and resisting arrest in 2015. Mr. Clark's counsel stated on the record, "We have reviewed those, and no objection to the admission of these exhibits."

         {¶20} Terri Jo Mickle, a caseworker from ACCSB, was ACCSB's sole witness at the evidentiary hearing. She testified that her agency became involved with T.C. after receiving a referral with concerns from the pediatrician that Ms. Fortney was not following through with visits, that she had a history of substance use, and that she may have been using again. Ms. Mickle also testified that Mr. Clark's positive drug screen results and prior convictions influenced her recommendation regarding legal custody of T.C.

         {¶21} Ms. Mickle further testified that Ms. Rife was in the best position to assume legal custody of T.C. because she had been with him for a over a year and had been able to meet all his needs on a daily basis. With respect to Ms. Fortney, Ms. Mickle testified that she had not accomplished any of the terms of her case plan.

         {¶22} The trial court took judicial notice of the GAL's previously-filed report. With respect to Mr. Clark, the GAL reported that he had: (1) a history of marijuana use, had prior charges for trafficking in cocaine, and was recently incarcerated on a parole violation after being charged with domestic violence against Ms. Fortney, (2) had positive drug screen results and had refused a drug screen, (3) had received counseling services, kept most appointments, seemed to be working hard on his anger issues, and had completed an anger management class, and (4) had stable housing, was not employed, but received some social security income.

         {¶23} With respect to Ms. Fortney, the GAL reported that she (1) had positive drug screen results and refused a drug screen, (2) was receiving counseling services but participated sporadically, and (3) resided with her parents, who had a history of drug abuse.

         {¶24} The GAL reported that Mr. Clark and Ms. Fortney denied being in a relationship, but there continued to be conflict between them, as evidenced by six police reports of disputes.

         {¶25} Regarding visits with T.C, the GAL reported that both parents did not seem to understand how to address T.C. needs and had to be prompted to feed him or check his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.