Court of Appeals of Ohio, Eleventh District, Ashtabula
IN THE MATTER OF: T.C., JR., ABUSED, NEGLECTE AND DEPENDANT CHILD
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).
E. Koerner, Law Office of David E. Koerner, (For Terrance
Marie Hamper, P.O. (Guardian ad litem).
JANE TRAPP, J.
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.
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.
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.
History and Procedural Background
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.
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.
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
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.
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.
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.
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.
The GAL recommended that ACCSB continue temporary custody of
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
The trial court subsequently adopted the magistrate's
decisions regarding adjudication and disposition.
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.
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.
The trial court held an evidentiary hearing on these motions
on October 4, 2018. Ms. Fortney did not appear, although her
counsel was present.
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.
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.
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
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.
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.
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.
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.
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.
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 ...