[Cite as In re T.K., 2013-Ohio-5869.]

STATE OF OHIO, HARRISON COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

IN THE MATTER OF: ) 

T.K. ) CASE NO. 12 HA 4 

DOB 6-21-01. ) 

 ) OPINION 

) 

) 

IN THE MATTER OF: ) 

A.K. ) CASE NO. 12 HA 5 

DOB 10-21-04. ) 

 ) OPINION 

) 

 ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Harrison County 

Common Pleas Court, 

Juvenile Division, 

Case Nos. 20113010, 20113011. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Appellant: Attorney Donna Miller 

152 North Broadway #200B 

New Philadelphia, OH 44663 

For Jerome Knight 

For Appellee: Attorney Jeffrey Kiggans 

389 16th Street, SW 

New Philadelphia, OH 44663 

For Harrison County Job & 

Family Services 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: December 23, 2013 
[Cite as In re T.K., 2013-Ohio-5869.]

DeGenaro, P.J. 

{¶1} Appellant-Father, Jerome Knight, appeals the decision of the Harrison 

County Court of Common Pleas, Juvenile Division, terminating his parental rights to A.K. 

and T.K., his minor children. The children's mother did not appeal, having stipulated to 

the termination of her parental rights. On appeal, Knight first alleges that the juvenile 

court erred when it allowed him to proceed without counsel for over one year. Second, 

Knight argues that the juvenile court erred when it found that he had been appropriately 

served. Finally, he contends the juvenile court's decision to terminate his parental rights 

is against the manifest weight of the evidence. 

{¶2} Knight's arguments are meritorious in part. First, Knight waived any error 

which occurred through the dependency adjudication and disposition because he failed to 

appeal that final order. Second, Knight had counsel for the permanent custody hearing 

and was properly notified of those proceedings. However, HCJFS did not establish by 

clear and convincing evidence that Knight abandoned his children. Accordingly, the 

juvenile court's decision as to Knight is reversed, and this cause is remanded for a new 

trial. 

Facts and Procedural History 

{¶3} Dawn Shank, mother, and Jerome Knight, father, had two minor children 

together, T.K., born on June 21, 2001, and A.K, born on October 21, 2004. On March 24, 

2011, the children were taken into custody by Appellee, Harrison County Department of 

Job and Family Services (HCJFS). The following day HCJFS filed complaints of 

dependency alleging deplorable home conditions that presented significant risk of harm; 

that mother engaged in drug use causing her to suffer severe hallucinations; and that 

mother and stepfather engaged in a pattern of domestic violence in front of the children. 

Finally, the complaints alleged that Knight was recently released from prison and had very 

little involvement with the children, not seeing them in over five months. 

{¶4} That same day the matter came before the juvenile court for a shelter care 

hearing in accordance with Juvenile Rule 7. Both mother and Knight appeared and 

stipulated as to the appropriateness of shelter care. The juvenile court entered denials on 

behalf of both parents regarding the allegations of dependency. The court further advised 

the parties that they had a right to separate lawyers and inquired as to whether they 
- 2 - 

would like counsel appointed to represent them. Both parties stated they would like court 

appointed attorneys and were asked to fill out the affidavit of indigency before they left. 

After confirming that neither party had questions about the procedure or their rights, and 

that both had received a copy of the complaints, the matter was adjourned. 

{¶5} On April 14, 2011, the adjudicatory hearing proceeded on the complaints 

previously filed by HCJFS. Both mother and Knight did not appear. The juvenile court 

adjudicated T.K. and A.K. to be dependent children, found that reasonable efforts had 

been made by HCJFS to prevent the removal and determined it was in the best interests 

of the minor children for the removal to continue. 

{¶6} On May 9, 2011, the dispositional hearing was held at which time Knight 

appeared without counsel. Knight indicated he was ready to proceed and informed the 

juvenile court that he had the same address, and it had not changed. The court indicated 

that notices for hearings were being returned as unsigned and he wanted to make sure 

"everybody's at the right addresses here so notice is perfected." Knight did not indicate to 

the judge that he had not received the notice of hearing. He further acknowledged that 

he needed to meet with the caseworkers to be added to the case plan. HCJFS noted that 

Knight was informed that he could write letters to his children; however, HCJFS had 

received no letters to date. Knight further stated, "[t]he only thing I request is I would like 

to get visitation on a regular basis. My understanding that I have to do what I need to do 

to do that." The juvenile court ordered the children to remain in the temporary custody of 

HCJFS with the intent of reunification with the parents. 

{¶7} On February 23, 2012, HCJFS filed a motion to modify disposition to grant 

permanent custody to HCJFS alleging the minor children could not be placed with mother 

or Knight within a reasonable time. Mother's lack of completing her case plan, struggles 

with drug addiction, sporadic contact with the children, criminal involvement and inability 

to secure stable housing all contributed to the filing of the motion. Further, the motion 

stated that Knight had not participated to any degree in the case except attending a 

hearing early in the proceedings, had no contact with the worker and only wrote one letter 

to the children. 
- 3 - 

{¶8} A pretrial on HCJFS's motion to modify disposition was held on March 29, 

2012. No transcript was provided, however, the judgment entry indicates that Knight did 

not appear. No changes were made to any previous orders of visitation and mother was 

ordered to follow all other aspects of her case plan. Further, a guardian ad litem was 

appointed for the children. 

{¶9} On June 2, 2012, pursuant to Juvenile Rule 16, a notice by publication ran 

in the Harrison News Herald informing Knight of the June 11, 2012, hearing date to 

address the custody of the minor children. 

{¶10} On June 11, 2012, a review hearing was held and Knight appeared pro-se. 

HCJFS noted that service had been made upon Knight by publication and he 

acknowledged receiving notice for this hearing on May 1, 2012. Further, though Knight 

contended that he returned the paperwork for court appointed counsel, the court found no 

indication of this within the file. As such, Knight completed the paperwork, was appointed 

an attorney and the matter was continued as it related to him. Mother stipulated to 

permanent custody of the minor children being granted to HCJFS and is not a party to this 

appeal. 

{¶11} On July 12, 2012, the juvenile court held a hearing on the permanent 

custody motion. Knight was present and represented by counsel. The following 

testimony was presented: 

{¶12} Linda Shoppe, social services worker at HCJFS, testified that she was the 

person at HCJFS primarily responsible for the case concerning T.K. and A.K. which was 

opened in March of last year. The extent of her contact with Knight was his appearance 

at two court hearings the previous year, one phone call and one letter to the children. 

Knight had no court sanctioned visitation during the pendency of the case and Shoppe 

had concerns that Knight was seeing the children outside of the agency's knowledge. 

She expressed concerns about Knight's living situation, a one room apartment, and the 

fact that she smelled alcohol on him at the very first court hearing. This was not the first 

time these children had been placed out of the home. Shoppe opined that if Knight had 

worked the case plan then the kids would have been reunited with him, as it is always 
- 4 - 

best to have the kids with a parent. None of the family placements that HCJFS 

investigated were successful. 

{¶13} On cross examination, Shoppe admitted that she did not know who Knight's 

employers were and that there were inconsistent accounts as to how often Knight visited 

with the minor children without the agency's knowledge, though both Knight and the 

children acknowledge that he was seeing them at some point. She acknowledged that 

there were no court orders prohibiting Knight from having contact with the children. She 

indicated she was not aware that Knight had served as the sole care provider for the 

children in the past and that the children had lived with him since their birth until their 

mother moved in 2006. 

{¶14} Shoppe testified that the children had a temporary placement but were 

moved from that placement when the foster parent, Mrs. Risher, failed to complete the 

necessary certification, expressed that she was no longer interested in adopting the 

children and permitted Knight to see the minor children without approval from HCJFS. 

She further stated that Knight disclosed to her that he didn't 'step up' because he thought 

the mother was going to get the children back. 

{¶15} On re-direct Shoppe testified she informed Knight in the early stages of 

HCJFS involvement with the minor children that he would need to write three letters to the 

children to demonstrate his interest and consistent contact with them. HCJFS only 

received one letter from Knight. 

{¶16} Ms. Seiber, the children's guardian ad litem, testified next. She 

recommended that the children be placed in the permanent custody of HCJFS. Seiber 

believed that Knight took no steps toward establishing a stable home, steady job, and 

drug free life. Knight seemed content to have visitations through the foster care 

placement. Due to Knight's lack of participation in the case plan, Sieber concluded that 

Knight was not interested in being a parent, and did not make or have any contact with 

him as part of her investigation. On cross examination, Seiber admitted that she did not 

know how long Knight has lived where he is at, how long he has been employed, or 

where he currently works. 
- 5 - 

{¶17} HCJFS next called Knight as if on cross examination. He testified that he 

lived alone in an efficiency apartment located at 139 Fair Avenue Northwest, Apt. 202 C, 

New Philadelphia, Ohio for the past two and a half years and acknowledged being the 

father of the minor children; further agreeing with the accuracy of Seiber's testimony. He 

only sent one letter because he was frequently seeing his children in their foster 

placement and letters were not 'good enough' for him. He never called the agency to 

inform them he was seeing the children because seeing them was all that mattered and 

he was not into the legality of it. 

{¶18} Knight estimated seeing the children four to five times since the closing of 

the first case through the present case. Knight testified that he does landscaping and 

works as a maintenance man at the apartment building where he lives and that his 

landlord would give Knight a larger apartment. He has no other children and has not paid 

towards his current child support order with an approximated arrearage of $8000. Knight 

believes his kids want to be with him and that he is a good dad. When asked what he 

had done over the past year to demonstrate his ability as a father, he conceded he did 

nothing with the case but had seen his kids. 

{¶19} On direct testimony, Knight admitted having interactions with the children on 

a regular basis, that he gets along with them very well, loves them, has a job, and suitable 

housing for them. The children lived with him from their births until 2006, and for about a 

year and a half he was the sole care provider for them, able to meet all of their needs. 

The children remained with him until mother returned from Indiana and took custody 

back. 

{¶20} On July 20, 2012, the juvenile court issued an entry terminating Knight's 

parental rights finding that reasonable efforts had been made by HCJFS to reunify the 

children with Knight and that it could not be done. Further, that HCJFS had temporary 

custody of the children for approximately sixteen out of twenty-two months with absolutely 

no progress in reunification with Knight. The juvenile court held that Knight had legally 

abandoned his children for over one year and that the agency established by clear and 

convincing evidence that Knight abandoned his children and that it was in their best 
- 6 - 

interest to be placed in the permanent custody of the HCJFS. Knight appealed. 

Final Appealable Order 

{¶21} At the outset HCJFS contends that any arguments regarding the 

adjudication of dependency and award of temporary custody have been raised in an 

untimely manner and should not be considered by this court. In his brief, Knight 

concedes and agrees with the law regarding the failure to appeal the adjudication of 

dependency.

{¶22} An appellate court will not consider any error which could have called to the 

trial court's attention at a time when such error could have been corrected or avoided by 

the trial court. In re I.T.A. and A.A., 7th Dist. Nos. 11 BE 27, 11 BE 29, 2012-Ohio-1689, 

¶17 citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 

1001(1982). Moreover, because it is a final appealable order, an adjudication order of 

abuse, dependency, or neglect and the award of temporary custody pursuant to R.C. 

2151.353(A)(2) must be filed within 30 days of the judgment entry pursuant to App.R. 

4(A). In re H.F., 120 Ohio St.3d. 499, 2008-Ohio-6810, 900 N.E.2d 607, at syllabus. In 

re K.G., 7th Dist. No. 09 MA 56, 2009-Ohio-6531, at ¶28. However, the parent still retains 

the right to appeal an award of permanent custody to the agency, and that appeal would 

include issues that arose after the adjudication order. In re H.F., at ¶17.

{¶23} Knight was present and stipulated to all the facts establishing dependency 

at the May 2011 dispositional hearing. Any alleged errors of law surrounding the 

adjudication and disposition of dependency should have been raised in an appeal filed 

within thirty days of the May 9, 2011 judgment entry. They cannot be challenged in this 

appeal. As such, review will be limited to any assignments of error that arose after the 

adjudication of dependency. 

Lack of Counsel 

{¶24} In his first of four assignments of error, Knight argues: 

{¶25} "The trial court erred by when it allowed Appellant to proceed without 

counsel for over one year." 

{¶26} Juv. R. 4 provides that every party shall have the right to be represented by 
- 7 - 

counsel and appointed counsel if indigent. R.C. §2151.352 further provides that if a 

parent appears at a juvenile proceeding without counsel, the juvenile court shall 

determine whether both parents know they have a right to counsel and the right of a party 

to be appointed or retain counsel. 

{¶27} There were three hearings (two reviews and one pre-trial) for which Knight 

did not appear after the adjudication of dependency. On June 11, 2012, the first hearing 

on permanent custody, he did appear and asserted that he had previously returned the 

paperwork to receive court appointed counsel. Contrary to these assertions, the juvenile 

court was unable to locate this paperwork in the file. Nevertheless, the court had Knight 

complete the paperwork to determine his indigence. Thereafter, Knight was appointed an 

attorney and granted a continuance. Further, Knight was represented by said counsel at 

the hearing on permanent custody on July 12, 2012. On appeal, Knight does not allege 

his counsel was ineffective. 

{¶28} The party must appear in the case before the court is obligated to inquire as 

to whether they need appointed counsel, and an affidavit of indigence must be filed. In re 

Nevelos, 11th Dist. 2007-G-2804, 2008-Ohio-3606, ¶31; In re Williams, 10th Dist. No. 

03AP-1007, 2004-Ohio-678, 2004 WL 285560, ¶13; and Matter of Perkins, 6th Dist. No. 

L-87-065, 1987 WL 31989, at *2 (Dec. 31, 1987). "[I]f a party appears without counsel, 

the court shall ascertain whether the party knows of the party's right to counsel and of the 

party's right to be provided with counsel if the party is an indigent person." R.C. 

2151.352, supra. 

{¶29} The first hearing that Knight attended after the adjudication and disposition 

on the dependency, the juvenile court had him complete the paperwork to determine 

whether he was indigent and appointed him counsel pursuant to Juv. R. 4 and R.C. 

§2151.352. Because Knight was represented at the permanent custody hearing by court 

appointed counsel, his first assignment of error is meritless.
- 8 - 

Proper Service 

{¶30} In his second of four assignments of error, Knight argues: 

{¶31} "The trial court erred when it found that Appellant had been appropriately 

served." 

{¶32} For proper service, the parent[s] must be notified of the permanent custody 

motion and the initial permanent custody hearing by one of three methods: personal 

service; service by certified or registered mail if the parent's whereabouts cannot be 

discerned after reasonable diligence; or if both those methods fail, by publication. R.C. 

2951.29; Juv.R. 16. 

{¶33} Knight argues that he only received one mailed notice during the entire 

case. This is directly controverted by Knight's own testimony. At the first permanent 

custody hearing on June 11, 2012, Knight admitted to receiving notice of service for that 

very hearing and the last court date which he attended, the disposition hearing on May 9, 

2011. His attendance and participation in the final permanent custody hearing on July 12, 

2012, demonstrates he received notice of that proceeding as well. Accordingly, Knight's 

second assignment of error is meritless. 

Manifest Weight 

{¶34} In his third of four assignments of error, Knight argues: 

{¶35} "The trial court's decision to terminate Appellant's parental rights is against 

the manifest weight of the evidence." 

{¶36} A parent's right to raise his or her children is an essential and basic civil 

right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v. 

Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, this right is 

not absolute. In re Sims, 7th Dist. No. 02-JE-2, 2002-Ohio-3458, at ¶23. In order to 

protect a child's welfare, the state may terminate parents' rights as a last resort. Id. 

Nonetheless, permanent termination of parental rights has been described as 'the family 

law equivalent of the death penalty in a criminal case.' * * * Therefore, parents 'must be 

afforded every procedural and substantive protection the law allows.' In re Hayes, 79 

Ohio St.3d 46, 48, 679 N.E.2d 680, quoting In re Smith, 77 Ohio App.3d 1, 16, 601 
- 9 - 

N.E.2d 45 (1991). 

{¶37} The evidentiary standard in permanent custody cases is clear and 

convincing evidence. R.C. 2151.414(B)(1). "Slightly less stringent than "proof beyond a 

reasonable doubt," the clear-and-convincing standard carries the highest burden of proof 

that can be required in a civil proceeding—defined as more than a mere preponderance 

of the evidence, clear and convincing evidence is that which is sufficient to establish a 

firm belief or conviction as to the facts sought to be established." In re J.W., 171 Ohio 

App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245 (10th Dist.) ¶15, citing Cross v. Ledford, 

161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. 

{¶38} As to the standard of review, "[a]n appellate court's review of a juvenile 

court's decision granting permanent custody is limited to whether sufficient credible 

evidence exists to support the juvenile court's determination." In re G.N., 170 Ohio 

App.3d 76, 2007-Ohio-126, 866 N.E.2d 32 (12th Dist.) citing In re Starkey, 150 Ohio 

App.3d 612, 2002-Ohio-6892, 782 N.E.2d 665 ¶16 (7th Dist.). Where a manifest weight 

challenge is made on appeal, the appellate court looks at "the inclination of the greater 

amount of credible evidence, offered in a trial, to support one side of the issue rather than 

the other." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, 

¶12, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). "Weight 

is not a question of mathematics, but depends on its effect in inducing belief." Id. This 

standard of review as set forth in Thompkins has been extended to civil cases generally, 

Eastley at ¶17 and cases involving the termination of parental rights. See In re S. 

Children, 5th Dist. No. 2012-CA-00164, 2012-Ohio-6265. 

{¶39} Before parental rights can be terminated, an agency must prove by clear 

and convincing evidence that permanent custody is in the best interests of the child and 

one of the following provisions: "(a) the child cannot be placed with either parent within a 

reasonable amount of time or should not be placed with either parent, (b) the child is 

orphaned, (c) the child is abandoned, (d) the child has been in the temporary custody of 

the agency for twelve or more months of a consecutive twenty-two month period." In re 

J.Z., 7th Dist. Columbiana No. 08 CO 31, 2009-Ohio-1937, ¶18, citing R.C. 
- 10 - 

2151.414(B)(1)(a)-(d). 

{¶40} HCJFS moved the juvenile court for permanent custody on the basis of R.C. 

2151.414(B)(1)(a), that the children could not be placed with either parent within a 

reasonable time, but the trial court made limited findings pursuant to this provision. 

Instead, a review of the judgment entries indicate that the juvenile court sua sponte found 

that the agency established by clear and convincing evidence that Knight abandoned his 

children. R.C. 2151.011(C), states that "a child shall be presumed abandoned when the 

parents of the child have failed to visit or maintain contact with the child for more than 

ninety days." 

{¶41} The statute does not differentiate between official visitation and unofficial 

visitation and all parties recognize that Knight was seeing his children during the 

pendency of this case. Knight acknowledged he had been seeing the children 

"frequently." Caseworker Shoppe acknowledged this and further, moved the children 

from their temporary placement based upon this unsanctioned visitation. The juvenile 

court's judgment entry further contradicts the finding of abandonment, acknowledging 

Knight's contact with the children and stating that Knight couldn't have it both ways; either 

he wanted to see the children and work a case plan or continue to live his own life. Thus, 

the juvenile court's finding of abandonment was not supported by the weight of the 

evidence. 

{¶42} With respect to the other two statutory provisions pursuant to which an 

agency can seek permanent custody, the children are not alleged to be orphaned. 

Although the juvenile court found that they had been in temporary custody for sixteen of 

twenty-two months on the date the permanent custody motion was heard, the relevant 

date triggering this provision is the date the motion was filed by the agency. See In re 

C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176 at ¶22-26 (the court cannot 

use the "12 of 22" provision if the agency files the motion for permanent custody prior to 

the child actually being in the temporary custody for 12 months). Here, HCJFS's motion 

was filed prior to the expiration of twelve months. Thus, the 12 of 22 provision is 

inapplicable and cannot serve as a basis for terminating Knight's parental rights. 
- 11 - 

{¶43} We must emphasize that termination of parental rights is referred to as "'the 

family law equivalent of the death penalty in a criminal case.''' In re Hoffman, 97 Ohio 

St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, at ¶14, quoting In re Smith, 77 Ohio App.3d 

1, 16, 601 N.E.2d 45 (1991). As the finding of abandonment was not supported by clear 

and convincing evidence HCJFS failed to meet its burden regarding permanent custody. 

"We cannot affirm the juvenile court's decision on permanent custody where the court 

specifically and erroneously bases its decision on a major factor such as abandonment." 

In re Hardy, 7th Dist. No. 04 MA 11, 2004-Ohio-4542, ¶35. Accordingly, Knight's third 

assignment of error is meritorious. 

{¶44} An agency seeking permanent custody must also prove that permanent 

custody is in the best interests of the children. But because we have concluded that 

HCJFS failed to prove that Knight abandoned his minor children pursuant to R.C. 

2151.414(B)(1), we decline to address whether or not it is in the children's best interest to 

award permanent custody to HCJFS. Our favorable resolution of Knight's manifest weight 

argument renders the issue moot and dispenses with our need to address it, see 

generally, App.R. 12(A)(1)(c), as well as his final assignment of error which alleges: 

"Plain error occurred when the court allowed Appellant to proceed without counsel." 

{¶45} In conclusion, Knight's arguments are meritorious in part. First, Knight 

waived any error which occurred through the dependency adjudication and disposition 

because he failed to appeal that final order. Second, Knight had counsel for the 

permanent custody hearing and was properly notified of those proceedings. However, 

HCJFS did not establish abandonment by clear and convincing evidence and the trial 

court's finding of abandonment was error. Accordingly, the judgment of the trial court as 

to Knight is reversed, and this cause is remanded for a new trial. 

Donofrio, J., concurs. 

Vukovich, J., concurs.