Court of Appeals of Ohio, Eleventh District, Portage
IN THE MATTER OF: J.M.M., J.A.M., JR., AND B.J.T.
Appeals from the Portage County Court of Common Pleas,
Juvenile Division, Case Nos. 2018 JCF 1054, 2018 JCF 1055,
and 2018 JCF 1056.
V. Vigluicci, Portage County Prosecutor, and Brandon J.
Wheeler, Assistant Prosecutor, (For Appellee).
J. Mullins, Megargel & Eskridge Co., LPA, (For
Shubhra N. Agarwal, (Attorney for Children).
Jerrold Michael Kovolyan, (Guardian ad litem).
JANE TRAPP, J.
Appellant, Angela Conklin-Tucker ("Ms.
Conklin-Tucker"), appeals the judgment of the Portage
County Court of Common Pleas, Juvenile Division, which
granted Portage County Department of Job and Family Services
("PCDJFS") permanent custody of Ms.
Conklin-Tucker's three children.
Ms. Conklin-Tucker argues the trial court erred in finding
that she stipulated to the termination of her parental rights
without making an inquiry as to whether her stipulation was
voluntarily, knowingly, and intelligently given. Ms.
Conklin-Tucker also argues the trial court failed to follow
the formalities of R.C. 5103.15(B)(1) when it accepted the
voluntary permanent surrender stipulation on the record.
After a thorough review of the record and relevant case law,
we affirm the judgment of the Portage County Court of Common
Pleas, Juvenile Division. Ms. Conklin-Tucker never stipulated
to a voluntary permanent surrender of her parental rights.
Instead, the court conducted a full permanent custody hearing
pursuant to R.C. 2151.414 and determined, by clear and
convincing evidence, that Ms. Conklin-Tucker was unable to
care for the children and provide for their basic needs.
Further, a voluntary permanent surrender agreement per R.C.
5103.15(B)(1) is inapplicable to a permanent custody hearing
pursuant to R.C. 2151.414.
and Procedural History
Ms. Conklin-Tucker is the mother of three minor children
whose custody are at issue in this case: a son, J.A.M. (DOB
9/24/09), and two daughters, J.M.M. (DOB 5/20/08) and B.J.T.
(DOB 3/25/12). The father of J.A.M. and J.M.M., Mr. Justin
Mosier ("Mr. Mosier), is currently serving a life
sentence for aggravated murder, aggravated robbery, and
robbery. The father of B.J.T., Billy Tucker ("Mr.
Tucker"), passed away in October of 2017.
On January 1, 2017, the minor children were removed from Ms.
Conklin-Tucker's custody and placed in the interim
predispositional custody of PCDJFS. PCDJFS filed a complaint
and order for shelter care, explaining they received a report
that Ms. Conklin-Tucker and her roommate, Eric Warner
("Mr. Warner"), were using and selling drugs out of
their home, engaging in violence with each other in front of
the children, and neglecting them. Ms. Conklin-Tucker
admitted she was using J.A.M.'s prescription. She also
tested positive for methamphetamines. The same day, the
Portage County Sheriffs Office arrested her on a charge for
aggravated possession of drugs. The children were removed to
protect their health, safety, and well-being. Prior to his
death, Mr. Tucker informed PCDJFS that he did not have the
means to care for B.J.T., was unstable, and had issues with
his mental health.
The magistrate granted the order for interim and shelter
care, and PCDJFS accordingly formulated a case plan with Ms.
Conklin-Tucker and Mr. Tucker. The magistrate adjudicated the
children as dependent on February 13, 2017.
Several months later, maternal grandmother, Zina Kaminiski
("Ms. Kaminiski"), filed a motion to intervene and
a motion for custody of J.A.M. and maternal aunt, Candy Vine
("Ms. Vine"), filed a motion to intervene and a
motion for custody of J.M.M. and B. J.T. Paternal
grandmother, Kathy Mosier ("Ms. Mosier"), also
filed a motion to intervene and a motion for legal custody of
all three children.
The guardian ad litem ("GAL") filed her first
report on November 7, 2017. The report informed the court
that the children were placed with Ms. Kaminiski and Ms. Vine
on June 18, 2017. Ten days later, both Ms. Kaminiski and Ms.
Vine requested the children be removed from their homes. The
children were placed back in foster homes. During those ten
days, the GAL reported the children did not receive their
medications properly. The police were called on two separate
occasions because J.A.M. could not be located. Further,
J.M.M. and J.A.M. were exhibiting sexually inappropriate
behaviors with each other. The children's behavior also
regressed. The GAL found the homes of Ms. Kaminiski, Ms.
Vine, and Ms. Mosier to all be appropriate. Further, all
three stated they would be financially able to care for the
children. Ms. Kaminiski and Ms. Vine receive disability
payments, while Ms. Mosier receives Supplemental Security
Income ("SSI"). Ms. Vine was dating the father of
Ms. Conklin-Tucker's ex-roommate/boyfriend, Mr. Warner.
The GAL also reported Ms. Conklin-Tucker was making some
progress, having completed a treatment program, but she was
still in a relationship with Mr. Warner.
On November 16, 2017, the magistrate granted PCDJFS'
motion for a six-month extension of temporary custody, and
set Ms. Kaminiski's, Ms. Vine's, and Ms. Mosier's
motions for custody of one or more of the children for a
pre-trial conference on December 21, 2017.
The GAL filed a second report with the court on the same day
as the pretrial conference. The GAL reported J.A.M. had been
placed in the home of Ms. Mosier, but ten days after
placement, Ms. Mosier dropped the child off at the home of a
relative and asked for the child to be removed from her home.
Ms. Mosier denied this. Ms. Conklin-Tucker was still in a
relationship with Mr. Warner and continued to test positive
for illegal substances. She was terminated from mental health
treatment, continued to be unemployed, and lacked housing.
The GAL recommended the six-month extension of temporary
custody to PCDJFS be granted.
Approximately six months later, on May 25, 2018, PCDJFS filed
a second motion for a six-month extension of temporary
custody. Ms. Conklin-Tucker had successfully completed
another substance abuse treatment program in March of 2018,
but continued to test positive for illegal substances.
Further, she continued to lack appropriate housing and
employment. The two girls were placed in separate foster
homes, and J.M.M. had been staying at the Christian
Children's Home of Ohio since November 27, 2017. The
court granted the six-month extension on June 28, 2018.
On December 6, 2018, PCDJFS filed a motion for permanent
custody of all three children since the dependent children
had been in the temporary custody of PCDJFS for 12 or more
months of a consecutive 22-month period. Ms. Conklin-Tucker
had failed to complete her case plan and to address her
financing, parenting, substance abuse, mental health, and
stable housing issues.
In February of 2019, the GAL filed a notice of conflict
because she believed it was in the best interest of the
children to be placed in the permanent custody of PCDJFS. The
children, however, did not wish to be placed in foster homes
or the permanent custody of the agency. The court granted the
GAL's request to appoint a new GAL for the children and
allow her to remain as the attorney for the children.
In the interim and before the children's permanent
custody hearing, Mr. Mosier filed a motion for legal custody
seeking placement of his children in the legal custody of his
mother, Ms. Mosier. Marcella A. Trask ("Ms.
Trask"), a nonrelative, also filed a motion to intervene
for custody of the children.
At the hearing, both parents were present and represented by
counsel. Also present were Ms. Mosier, Ms. Kaminiski, Ms.
Vine, and Ms. Trask, along with a PCDJFS case worker, the
GAL, and the children's attorney. The court overruled Ms.
Trask's motion to intervene, finding her not prepared to
argue since her motion did not comply with Civ.R. 24 and was
untimely. PCDJFS entered 38 exhibits into evidence, which
consisted of case plans, interim reports, the GAL reports,
the magistrate's orders, and a Ravenna City Police
Department incident report from November 26, 2017. The report
documented a custody dispute regarding J.A.M.'s
grandfather, who informed the police Ms. Mosier told him she
did not want custody of J.A.M.
Ms. Conklin-Tucker and Mr. Mosier stipulated that the
children had been in the temporary custody of PCDJFS for 12
or more months of a consecutive 22-month period and that they
were unable to care for the children. Ms. Conklin-Tucker
wanted the children to be placed in the legal custody of
relatives, and Mr. Mosier wanted his mother, Ms. Mosier, to
have legal custody. ...