[Cite as In re J.R., 2009-Ohio-4113.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

IN THE MATTER OF: 

 CASE NO. 9-09-05 

 J. R., 

 O P I N I O N 

[DANNY MUNDY, APPELLANT]. 

 

IN THE MATTER OF: 

 CASE NO. 9-09-06 

 T. M., 

 O P I N I O N 

[DANNY MUNDY, APPELLANT]. 

 

IN THE MATTER OF: 

 CASE NO. 9-09-07 

 D. M., III 

 O P I N I O N 

[DANNY MUNDY, APPELLANT]. 

 

IN THE MATTER OF: 

 CASE NO. 9-09-08 

 L. M., 

 O P I N I O N 

[DANNY MUNDY, APPELLANT]. 

 

IN THE MATTER OF: 

 CASE NO. 9-09-09 

 E. M., 

 O P I N I O N 

[DANNY MUNDY, APPELLANT]. 

 
Case No. 9-09-05, 06, 07, 08, 09 

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Appeal from Marion County Common Pleas Court 

Juvenile Division 

Trial Court Nos. 2006 AB 50, 2006 AB 51, 2006 AB 52, 

2006 AB 71, 2006 AB 122 

Judgments Affirmed 

Date of Decision: August 17, 2009 

 

APPEARANCES: 

Keith A. Kochheiser for Appellant 

James P. Luton for Appellee 

Douglas B. Diequez, Guardian Ad Litem 

SHAW, J.

{¶1} Father-appellant, Danny K. Mundy, appeals five judgments rendered 

on February 4, 2009, by the Court of Common Pleas, Family Division, of Marion 

County, Ohio, granting permanent custody of J.R., T.M., D.M., and L.M. to 

Marion County Children’s Services (“MCCS”) and granting legal custody of E.M. 

to his paternal grandmother, Sheila Riggenbach. 
Case No. 9-09-05, 06, 07, 08, 09 

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{¶2} The facts relevant to this appeal are as follows. Four of the children 

at issue in this appeal, T.M., D.M., L.M., and E.M., are the biological children of 

Elizabeth Rogers and the appellant, Danny Mundy. J.R. is the biological child of 

Elizabeth Rogers and Joshua Bonham.1

 J.R. has autism. T.M. and D.M. were 

born with a condition known as Treacher Collins syndrome. As a result of this 

condition, both children require the use of a tracheal tube to maintain their 

breathing, they have difficulty walking and communicating, and D.M. also has a 

feeding tube. These two children also have nurses to help in their daily care. 

{¶3} On May 19, 2006, MCCS filed a complaint alleging that J.R., born 

July 15, 2000, was abused, neglected, and dependent.2

 That same day, the agency 

filed two additional complaints, one for T.M., born May 9, 2002, and one for 

D.M., born May 18, 2004, alleging those children were dependent and neglected. 

These complaints were based upon allegations that their mother, Elizabeth Rogers, 

allowed her father, a known sex offender, unsupervised access to J.R. During this 

time, her father sexually assaulted J.R. 

{¶4} Three days before MCCS filed its complaints, Rogers gave birth to 

L.M. However, MCCS did not file a complaint for abuse, neglect, and/or 

dependency for L.M. Upon agreement of the parties, J.R. was adjudicated abused 

 

1

 Bonham was served by publication but did not enter any appearance for the proceedings nor did anyone 

on his behalf. The mother testified that she had not had any contact with Bonham since J.R. was six 

months old. 

2

 Throughout the proceedings in all five cases, MCCS would dismiss its complaints and re-file and/or 

amend the complaints due to various statutory time restrictions. However, the substance of these 

complaints remained consistent. 
Case No. 9-09-05, 06, 07, 08, 09 

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and dependent, and T.M. and D.M. were adjudicated dependent on June 15, 2006. 

All three were left in the care of their mother and placed under protective 

supervision. Although placed in their mother’s care, the appellant also lived in the 

home with Rogers and the children. 

{¶5} On July 27, 2006, MCCS filed an additional complaint, alleging that 

L.M. was abused, neglected, and dependent. This complaint was based on an 

incident that occurred on July 1, 2006, wherein L.M. suffered from Shaken Baby 

syndrome, causing a left brain subdural hematoma, several broken ribs, and a 

blown retina. Tests also showed L.M. had a fractured femur, which was already 

healing. 

{¶6} The following day, on July 28, 2006, pursuant to an agreement by 

Rogers and the appellant, T.M. and D.M. were placed in the physical custody of 

their nurses, Kay Hout and Anita “Jodi” Smith. However, J.R. was left in the care 

of Rogers, and the three children were kept under protective supervision. Upon 

her release from the hospital, L.M. was placed in the temporary custody of MCCS 

and placed into foster care because the perpetrator of the abuse upon L.M. had yet 

to be determined.3

 

 

3

 The investigation never revealed who the actual perpetrator was. Rogers suspected that while she was 

sleeping, J.M. caused the injuries. Both J.M. and Rogers were home at the time. In addition, Jodi Smith, 

testified that when she arrived at the home on the day L.M. was injured, she saw the appellant knocking on 

the door of a neighbor. The appellant testified that he was not in the room when L.M. was injured. Smith 

further testified that she told Rogers to call 911 because she could immediately tell L.M. was critical but 

that Rogers did not make the call. Instead Rogers and the appellant eventually drove L.M. to the hospital. 
Case No. 9-09-05, 06, 07, 08, 09 

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{¶7} On August 15, 2006, MCCS filed for emergency orders for T.M. and 

D.M. based upon information received from the local sheriff’s department that the 

parents failed to provide a safe environment for the children by allowing J.R. to 

throw (“airborne”) and push his medically fragile siblings in a rough manner. 

These orders were granted the following day, and emergency placement of T.M. 

was given to Jodi Smith and emergency placement of D.M. was given to Kay 

Hout. 

{¶8} L.M. was found to be abused and dependent on April 17, 2007. 

MCCS later filed a motion for temporary custody of J.R., T.M., and D.M., which 

was granted on June 6, 2007. Shortly thereafter, J.R. was placed in the therapeutic 

foster home of Charity Slaughter. Eventually, both T.M. and D.M. were placed in 

the home of Jodi Smith. 

{¶9} On October 25, 2007, Rogers gave birth to E.M. The following day, 

MCCS filed an ex parte motion for emergency custody of E.M., which was 

granted. Thereafter, MCCS filed a complaint, alleging that E.M. was a dependent 

child. The basis for this complaint was the prior history of the family with MCCS, 

wherein the other four children were found to be dependent children and two of 

them were additionally found to be abused children. Temporary custody of E.M. 

was granted to MCCS, and he was placed in the care of Jodi Smith. 
Case No. 9-09-05, 06, 07, 08, 09 

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{¶10} The appellant later filed a motion for kinship placement of E.M. with 

the appellant’s mother, Sheila Riggenbach. On February 5, 2008, the parties 

agreed to terminate MCCS’ temporary custody of E.M. and to grant temporary 

custody of E.M. to his paternal grandmother.4

 Two days later, E.M. was placed 

with his grandmother. 

{¶11} On April 14, 2008, MCCS filed motions for permanent custody of 

J.R., T.M., D.M., and L.M. MCCS also filed an amended complaint, alleging 

E.M. was dependent and requesting that permanent custody of E.M. be granted to 

the agency that same date. 

{¶12} On June 30 and July 1, 2008, the trial court held an adjudicatory 

hearing for E.M. and a permanent custody hearing for the other four children. On 

August 12, 2008, the paternal grandmother filed a motion to be made a party to 

E.M.’s case and a motion for legal custody of E.M. The grandmother’s motion to 

be made a party was granted on September 25, 2008. 

{¶13} The trial court found E.M. to be a dependent child on September 17, 

2008. A dispositional/permanent custody hearing for E.M. was held on September 

30, 2008. At the permanent custody hearing for the children, MCCS presented 

testimony and exhibits regarding two psychological examinations of the appellant, 

which noted his mental health issues and substance and alcohol abuse. The 

agency also presented the testimony of foster parents for the children, three of the 

 

4

 This agreement was adopted by the trial court and journalized on February 20, 2008. 
Case No. 9-09-05, 06, 07, 08, 09 

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caseworkers assigned to the children, and one of L.M.’s nurses. The court also 

heard testimony from the parents, the maternal and paternal grandmothers, the 

appellant’s sister, and one of the nurses for T.M. and D.M. 

{¶14} On February 4, 2009, the trial court granted permanent custody of 

the four oldest children to MCCS. The trial court also granted legal custody of 

E.M. to his paternal grandmother. 

{¶15} The father-appellant now appeals these five judgments, asserting 

three assignments of error. 

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED REVERSABLE [sic] 

ERROR WHEN IN ACCORDANCE WITH OHIO REVISED 

CODE 2151.414, IT FAILED TO CONSIDER ALTERNATE 

PLACEMENT RATHER THAN PERMANENT CUSTODY. 

ASSIGNMENT OF ERROR NO. 2

THE DECISION OF THE TRIAL COURT IS IN ERROR 

WHEN [IT] FAILED TO FOLLOW ALL OF THE 

PROVISIONS OF 2151.414. 

ASSIGNMENT OF ERROR NO. 3

BY ITS OWN JUDGMENT ENTRY DATED SEPTEMBER 17, 

2008, CONCERNING THE MINOR CHILD, ERIC [sic] JAY 

MUNDY, THE COURT MADE FINDINGS OF FACT THAT 

DO NOT INDICATE ANY REASON AS TO WHY THE 

FATHER SHOULD NOT HAVE THE CARE AND CUSTODY. 
Case No. 9-09-05, 06, 07, 08, 09 

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First Assignment of Error 

{¶16} In his first assignment of error, the appellant contends that the trial 

court erred by not considering alternate placement of the children rather than 

permanent custody. Initially, we note that this assignment of error concerns all 

five of the children. However, J.R. is not the biological or adopted child of the 

appellant. Further, the record is devoid of any motion filed on behalf of the 

appellant for custody of J.R. As such, he lacks standing to challenge the trial 

court’s decision to grant permanent custody of J.R. to MCCS. Therefore, this 

assignment of error is overruled as to J.R. Further, the request by MCCS for 

permanent custody of E.M. was not granted. To the contrary, legal custody of 

E.M. was granted to his paternal grandmother. Accordingly, this assignment of 

error is overruled as moot as to E.M. 

{¶17} In regards to the other three children, our review of a grant of 

permanent custody begins by noting that “[i]t is well recognized that the right to 

raise a child is an ‘essential’ and ‘basic’ civil right. In re Franklin, 3rd Dist. Nos. 

9-06-12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio St.3d 46, 

48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent “must be 

afforded every procedural and substantive protection the law allows.” In re 

Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45. 
Case No. 9-09-05, 06, 07, 08, 09 

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{¶18} Additionally, the trial court is vested with broad discretion in 

determining the allocation of parental rights and responsibilities for the care of 

minor children. Blaker v. Wilhelm, 6th Dist. No. WD-04-003, 2005-Ohio-317, 

citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As a trial 

court is in the best position to weigh witness credibility and evaluate a child’s 

needs, the standard for reviewing a trial court’s grant of permanent custody is 

abuse of discretion. In re Rinaldi, 3rd Dist. No. 1-02-74, 2003-Ohio-2562. 

Therefore, absent an abuse of that discretion, a trial court’s decision regarding the 

allocation of parental rights and responsibilities must be upheld. Masters v. 

Masters (1994), 69 Ohio St.3d 83, 85, 630 N.E.2d 665. An abuse of discretion 

constitutes more than an error of law or judgment and implies that the trial court 

acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse of 

discretion standard, a reviewing court may not simply substitute its judgment for 

that of the trial court. Id. Therefore, it is within these constructs that we examine 

Appellant’s first assignment of error. 

{¶19} Before a juvenile court may terminate parental rights and award 

permanent custody of a child to a properly moving agency, it must find clear and 

convincing evidence of both prongs of the permanent custody test: (1) that the 

child is abandoned, orphaned, has been in the temporary custody of the agency for 
Case No. 9-09-05, 06, 07, 08, 09 

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at least 12 months of a consecutive 22-month period, or that the child cannot be 

placed with either parent within a reasonable time or should not be placed with 

either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant 

of permanent custody to the agency is in the best interest of the child, based on an 

analysis under R.C. 2151.414(D). In re D.M., 9th Dist. Nos. Civ.A. 22732, 22749, 

2005-Ohio-6740 at ¶ 11, citing R.C. 2151.414(B)(1)(a) through (d) and (2); See 

also In re William S. (1996), 75 Ohio St.3d 95, 99, 661 N.E.2d 738. 

{¶20} In the case sub judice, the appellant contends that the trial court was 

required to consider alternate placement of the children rather than permanent 

custody pursuant to R.C. 2151.414. Although the appellant cites this section of 

the Revised Code, he provides no specific sub-section and/or division in support 

of his argument that the trial court must consider alternate placement. Rather, his 

argument relies upon R.C. 2151.412(F)(1)(a), which requires a case plan to have a 

goal “to achieve a safe out-of-home placement in the least restrictive, most familylike setting available and in close proximity to the home from which the child was 

removed[.]” He then asserts that the children were placed “all over central Ohio” 

and that this made visitation difficult. 

{¶21} Our review of R.C. 2151.414, as previously outlined, reveals no 

requirement that the trial court favor alternate placement over awarding permanent 

custody. Further, even assuming arguendo that such a requirement exists, the 
Case No. 9-09-05, 06, 07, 08, 09 

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evidence before the trial court demonstrated that the three children at issue in this 

assignment of error, T.M., D.M., and L.M., each have serious, debilitating, and 

life-threatening medical conditions that require constant care. Their respective 

medical conditions necessitated specialized placement in homes where those 

responsible for their care understood their extreme needs and could meet those 

needs. In fact, R.C. 2151.412(F)(1)(a) specifically requires that the goal of 

achieving a safe out-of-home placement be “consistent with the best interest and 

special needs of the child[.]” Therefore, MCCS placed these children with people 

who not only were trained and experienced in handling medically fragile children 

but who also knew these children prior to placement in their respective homes. 

{¶22} In this case, the paramount concern was the physical safety of the 

children, as their very survival depended upon it. Thus, no error occurred in the 

placement of the children. Moreover, the record before the court amply supports 

the trial court’s decision to grant permanent custody of the children. The 

witnesses testified about the psychological problems, poor parenting skills, and 

impaired judgment of the appellant, and the defiant and belligerent attitude the 

appellant has with others regarding the medical treatment of his children. Given 

the intense medical needs of the children, the court did not abuse its discretion in 

finding by clear and convincing evidence that both prongs of the permanent 

custody test were satisfied. Accordingly, the first assignment of error is overruled. 
Case No. 9-09-05, 06, 07, 08, 09 

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Second Assignment of Error

{¶23} The appellant contends in his second assignment of error that the 

trial court erred by not following the mandates of R.C. 2151.414 in regards to 

E.M. In support of this contention, the appellant asserts that MCCS sought 

permanent custody of E.M., who has no medical problems and who was never in 

the care of his parents due to the issues with the other four children, and that the 

trial court failed “to consider not only the parents, but the extended family, so that 

the child could remain in a family like setting.” 

{¶24} While the appellant accurately states that MCCS requested 

permanent custody, the trial court denied this request. To the contrary, the trial 

court granted the motion of Sheila Riggenbach, the appellant’s mother, to award 

legal custody of E.M. to her. In reaching this decision, the trial court found that 

the parents were not capable of caring for any child based on their past history, 

including the fact that E.M.’s sister, L.M., was born with no health problems but 

suffered abuse while in her parents’ care and then they failed to provide immediate 

emergency attention to her. However, the court also found that continued 

parenting time between E.M. and his parents should occur and that legal custody 

to the paternal grandmother would adequately protect E.M. and provide for his 

need for permanency. Thus, the court concluded that E.M.’s best interests would 

be served by granting legal custody of E.M. to his grandmother, who had 
Case No. 9-09-05, 06, 07, 08, 09 

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temporary custody of him since he was four months old, and that such a decision 

would not terminate the parental rights of the appellant and Elizabeth Rogers. 

{¶25} The record clearly demonstrates that the trial court considered both 

the parents and the extended family. In fact, E.M. was placed in the legal custody 

of his paternal grandmother. Thus, the trial court kept the child with his extended 

family. As such, the appellant has already received the result he now seeks 

through this assignment of error. Therefore, the second assignment of error is 

overruled. 

Third Assignment of Error

{¶26} In his third assignment of error, the appellant contends that the trial 

court erred by failing to indicate why the appellant should not have the care and 

custody of E.M. In support of this assertion, the appellant references the 

September 17, 2008 judgment of the trial court, finding E.M. to be a dependent 

child. 

{¶27} Admittedly, this entry does not reference any direct findings as to 

the appellant. However, the appellant’s assignment of error does not challenge the 

adjudication of dependency. Rather, he contends the court erred in not providing a 

reason as to why he was not given custody of E.M. at the disposition. 

{¶28} After adjudicating E.M. to be dependent, the trial court held a 

dispositional hearing on E.M., which included MCCS’ request for permanent 
Case No. 9-09-05, 06, 07, 08, 09 

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custody of him. This hearing was held on September 30, 2008, the same day as 

the continuation of the permanent custody hearing for the four older children. 

Prior to that time, the trial court received two days of testimony on the permanent 

custody motions for E.M.’s siblings. Also included in those previous two days of 

evidence was a substantial amount of testimony regarding E.M. 

{¶29} At the conclusion of all the evidence regarding each of the five 

children, the trial court took the matters under advisement. In its February 4, 2009 

decision, the trial court found that the parents were not capable of caring for any 

child based on their past history, including the fact that E.M.’s sister, L.M., was 

born with no health problems but suffered abuse while in her parents’ care and 

then they failed to provide immediate emergency attention to her. The court also 

found that the parents could not assimilate the resources made available to them 

through counseling. In specifically addressing its concerns as to the appellant, the 

court found that the appellant was unable to focus, had past mental health 

problems and drug and alcohol issues, was in danger of relapsing, had weak 

parenting skills, had impaired judgment, lacked insight, and was resentful of 

authority and typically defiant and belligerent when told or asked to do anything 

regarding the medical treatment of his children. The court then held that 

notwithstanding reasonable case planning and diligent efforts by the agency to 

assist the parents to remedy the problems that initially caused the children to be 
Case No. 9-09-05, 06, 07, 08, 09 

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placed outside the home, the parents failed continuously and repeatedly to 

substantially remedy these problems pursuant to R.C. 2141.414(E)(1). 

{¶30} The court also found that the parents demonstrated a lack of 

commitment toward the children by failing to regularly support, visit, or 

communicate with the children when able to do so, or by other actions showing an 

unwillingness to provide an adequate permanent home for the children pursuant to 

R.C. 2151.414(E)(4). Here, the court found that visitations were sporadic because 

of the parents’ actions, including the appellant’s decision to enroll in school an 

hour and a half away without a residence or dependable means of transportation. 

{¶31} Despite these findings, the court also found that continued parenting 

time between E.M. and his parents should occur and that legal custody to the 

paternal grandmother would adequately protect E.M. and provide for his need for 

permanency. Thus, the court concluded that E.M.’s best interests would be served 

by granting legal custody of E.M. to his grandmother, and that such a decision 

would not terminate the parental rights of the appellant and Elizabeth Rogers. 

{¶32} Notably, the appellant does not dispute these findings. Rather, he 

inaccurately maintains that no findings were made and, thus, the trial court failed 

to follow statutory mandates.5

 Not only were numerous findings made by the 

court in regards to the appellant and the court’s decision to grant legal custody to 

 

5

 Although the appellant states “[t]his was in error in failing to follow the statutes set forth above and must 

be reversed[,]” he fails to provide any statutory references in support of this statement. This failure makes 

it quite difficult to ascertain the exact nature of the alleged error purportedly committed by the trial court. 
Case No. 9-09-05, 06, 07, 08, 09 

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the paternal grandmother, as previously discussed, these findings were supported 

by the evidence before it. Therefore, this assignment of error is overruled. 

{¶33} For all of these reasons, the five judgments of the Marion County 

Common Pleas Court, Family Division, are affirmed. 

 Judgments Affirmed 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr