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In re J.M.M.

Court of Appeals of Ohio, Eleventh District, Portage

July 15, 2019

IN THE MATTER OF: J.M.M., J.A.M., JR., AND B.J.T.

          Civil Appeals from the Portage County Court of Common Pleas, Juvenile Division, Case Nos. 2018 JCF 1054, 2018 JCF 1055, and 2018 JCF 1056.

          Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant Prosecutor, (For Appellee).

          Cecily J. Mullins, Megargel & Eskridge Co., LPA, (For Appellant).

          Shubhra N. Agarwal, (Attorney for Children).

          Jerrold Michael Kovolyan, (Guardian ad litem).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         Substantive and Procedural History

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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. ...


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