Court of Appeals of Ohio, Eleventh District, Portage
IN THE MATTER OF: J.M.M. AND J.A.M., JR.
Appeals from the Portage County Court of Common Pleas,
Juvenile Division, Case Nos. 2018 JCF 1054 and 2018 JCF 1055.
V. Vigluicci, Portage County Prosecutor, and Brandon J.
Wheeler, Assistant Prosecutor, (For Appellee).
Konturas, (For Appellant).
Shubhra N. Agarwal, (Attorney for Children).
Jerrold Michael Kovolyan, (Guardian ad litem).
JANE TRAPP, J.
Appellant, Justin Mosier, Sr. ("Mr. Mosier"),
appeals the judgment of the Portage County Court of Common
Pleas, Juvenile Division, which granted the Portage County
Department of Job and Family Services ("PCDJFS")
permanent custody of Mr. Mosier's two children.
Mr. Mosier raises three issues on appeal: (1) whether the
trial court failed to properly inquire whether his
stipulations were knowingly, intelligently, and voluntarily
offered; (2) whether PCDJFS failed to meet its burden of
proof by introducing insufficient evidence to support the
trial court's determination; and (3) whether the trial
court's judgment granting PCDJFS permanent custody is
against the manifest weight of the evidence.
After a thorough review of the record and relevant caselaw,
we affirm the judgment of the Portage County Court of Common
Pleas, Juvenile Division. Mr. Mosier never stipulated to a
voluntary permanent surrender of his parental rights. He was,
in fact, disqualified for custody because he is currently
serving a life sentence for aggravated murder, aggravated
robbery, and robbery. Further, a review of the evidence
presented at the children's hearing for permanent custody
reveals more than sufficient evidence from which the trial
court could clearly and convincingly find that granting
PCDJFS permanent custody was in the children's best
interest. Lastly, the manifest weight of the evidence weighs
heavily in support of the trial court's determination
that there were no suitable relatives or nonrelatives who
were willing to care for the children or meet their basic
and Procedural History
Mr. Mosier is the father of two minor children whose custody
are at issue in this case: a son, J.A.M. (DOB 9/24/09), and
daughter, J.M.M. (DOB 5/20/08). The children's mother,
Angela Conklin-Tucker ("Ms. Conklin-Tucker"), also
has another daughter, B.J.T. (DOB 3/25/12). Custody of all
three children was considered by the trial court below and by
this court in Ms. Conklin-Tucker's appeal in the
companion case of In re J.M.M., JAM., Jr., and
B.J.T, 11th Dist. Portage Nos. 2019-P-0032, 2019-P-0033,
On August 30, 2010, Mr. Mosier was sentenced to life in
prison with the possibility of parole after 25 years for
aggravated murder, aggravated robbery, and robbery. The
children were in the custody of Ms. Conklin-Tucker until
January 1, 2017, when the children we placed in the interim
predispositional custody of PCDJFS. Ms. Conklin-Tucker had
been using and selling drugs out of her home, engaging in
violence with her roommate/boyfriend in front of the
children, and neglecting them. She had been using
J.A.M.'s prescription and tested positive for
methamphetamines. The same day PCDJFS took custody of the
children, the Portage County Sheriffs Office arrested Ms.
Conklin-Tucker on a charge for aggravated possession of
The magistrate granted the order for interim and shelter
care, and PCDJFS accordingly formulated a case plan with the
mother. 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 legal custody of J.M.M., and maternal aunt,
Candy Vine ("Ms. Vine"), filed a motion to
intervene and a motion for legal 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. Kaminski's, Ms. Vine's, and Ms. Mosier's
motions for legal 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 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 and a motion
for legal 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. The case worker from PCDJFS, Ms.
Kaminiski, Ms. Vine, Ms. Mosier, and Mr. Mosier testified at
The court found, by clear and convincing evidence, that Mr.
Mosier was disqualified for custody under R.C.
2151.414(E)(6), (7), (12), and (13) because he is serving a
life sentence at Southern Ohio Correctional Facility for a
2010 conviction for aggravated murder, aggravated robbery,
and robbery. Ms. Conklin-Tucker was dependent on drugs and
unable to provide a safe, stable environment, housing, or
provide the children with their basic needs. The GAL
recommended the children be placed in the permanent custody
of PCDJFS. The court further found there were no appropriate
relatives willing to take temporary custody, and that PCDJFS
had made reasonable efforts to prevent the children's
removal and finalize a permanent plan.
There had been two failed placements with maternal
grandmother, Zena Kaminski; one in an earlier case involving
J.A.M. and J.M.M. in 2011, and the second was in this case
involving J.A.M. only. PCDJFS also had concerns about an
on-going domestic violence issue between Ms. Kaminski and her
husband, as well as an on-going children services history
with Ms. Kaminski.
At the same time Ms. Kaminski had J.A.M. in this case, the
maternal aunt, Ms. Vine, had J.M.M. and B.J.T. Ms. Kaminski
and Ms. Vine returned the children to ...