In re A.H. , 2014 Ohio 552 ( 2014 )

[Cite as In re A.H., 2014-Ohio-552.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: A.H. C.A. No. 13CA010454
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 09JC26622
DECISION AND JOURNAL ENTRY
Dated: February 18, 2014
CARR, Presiding Judge.
{¶1} Appellant, Father, who has the same initials as his son, appeals from a judgment
of the Lorain County Court of Common Pleas, Juvenile Division, that terminated his parental
rights and placed his minor son in the permanent custody of Lorain County Children Services
(“LCCS”). This Court affirms.
I.
{¶2} Father is the natural father of A.H., born November 23, 2000. The mother of
A.H. voluntarily relinquished her parental rights and is not a party to this appeal.
{¶3} Although the custodial history of A.H., now 13 years old, is not clear from the
record, he has spent most of life living in temporary homes. He lived with Father for most of the
first year of his life. For the next several years, he lived with a paternal aunt who was appointed
his legal guardian because Father was incarcerated for seven years and his mother was
apparently unable or unwilling to care for him. After A.H. had lived with his aunt for several
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years, however, she began transitioning him to his mother’s custody although no legal
documents to that effect were executed.
{¶4} When LCCS first filed this involuntary dependency case in June 2009, A.H. was
eight years old. In addition to allegations of physical abuse of A.H. by his mother’s boyfriend, it
was not disputed that A.H. had serious mental health and behavioral problems. The alleged
physical abuse by his mother’s boyfriend had only exacerbated his mental health and behavioral
problems. A.H. repeatedly expressed suicidal and homicidal thoughts and acted out in
aggressive and harmful ways toward himself and others. He was adjudicated a dependent child
on August 5, 2009.
{¶5} For the next three years, A.H. lived in a variety of different settings because his
caregivers were unable to stabilize his mental health and control his harmful behavior. After
being removed from his mother’s home, A.H. lived for periods of time in homes with Father, an
aunt, two therapeutic foster families, and in different mental health institutions. He also spent
several months in juvenile detention because his violent outbursts had resulted in domestic
violence charges in March 2012, after he attacked his foster mother and again near the end of
2012, after he threatened his cousin with a knife and allegedly committed other violent acts in
the aunt’s home including breaking the dog’s leg.
{¶6} The primary focus of the case plan was to stabilize A.H.’s mental health and
behavioral problems. A.H. was diagnosed with attention deficit hyperactivity disorder,
posttraumatic stress disorder, and conduct disorder. Although treatment professionals had
prescribed medication and A.H. continued to participate in counseling, his behavior did not
improve. Through the advice of his treatment professionals, LCCS ultimately concluded that
A.H. was in need of a highly structured environment, without other children in the home, and a
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caregiver who had been trained to deal with his specific mental health and behavioral issues and
could give him considerable one-on-one attention. None of A.H.’s relatives had demonstrated
that they were willing and able to provide A.H. with such a structured environment, however.
{¶7} On January 18, 2013, LCCS moved for permanent custody of A.H. Following a
hearing on the motion, the trial court found that A.H. had been in the temporary custody of
LCCS for more than 12 of the prior 22 months and that permanent custody was in his best
interest. Consequently, it terminated Father’s parental rights and placed A.H. in the permanent
custody of LCCS. Father appeals and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
VIOLATION OF [FATHER’S] [RIGHTS UNDER THE] FOURTEENTH
AMENDMENT TO THE UNITED STATE[S] CONSTITUTION DUE
PROCESS CLAUSE AND ARTICLE I SECTION SIXTEEN OF THE OHIO
CONSTITUTION IN FINDING THAT PERMANENT CUSTODY WAS
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, AND IN
TERMINATING APPELLANT’S PARENTAL RIGHTS WHEN THE TRIAL
COURT’S JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶8} Father’s sole assignment of error is that the trial court’s permanent custody
decision was not supported by the evidence presented at the hearing. Before a juvenile court
may terminate parental rights and award to a proper moving agency permanent custody of a
child, it must find clear and convincing evidence of both prongs of the permanent custody test
that: (1) the child is abandoned, orphaned, has been in the temporary custody of the agency for at
least 12 months of the prior 22 months, 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) the grant of permanent custody to the agency is in the best interest of
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the child, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶9} The trial court found that the first prong of the permanent custody test had been
satisfied for two alternate reasons: A.H. had been in the temporary custody of LCCS for more
than 12 of the prior 22 months, and he could not or should not be returned to either parent’s
custody. R.C. 2151.414(B)(1)(d); R.C. 2151.414(E). Although Father disputes the trial court’s
finding under R.C. 2151.414(E), he does not dispute that its finding under the “12 of 22”
provision of R.C. 2151.414(B)(1)(d) was supported by the record. Because the “12 of 22”
finding was sufficient to support the first prong of the permanent custody test, any error in the
trial court’s alternate finding under R.C. 2151.414(E) would not constitute reversible error
because it did not result in any prejudice to Father. In re R.H., 9th Dist. Lorain Nos.
11CA010002 and 11CA010003, 2011-Ohio-6749, ¶ 14.
{¶10} Next, Father argues that the trial court’s best interest determination was not
supported by the evidence presented at the hearing. When determining whether a grant of
permanent custody is in the children’s best interests, the juvenile court must consider the
following factors:
(a) The interaction and interrelationship of the child with the child’s parents,
siblings, relatives, foster caregivers and out-of-home providers, and any other
person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the
child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the
temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two-
month period * * *;
(d) The child’s need for a legally secure permanent placement and whether that
type of placement can be achieved without a grant of permanent custody to the
agency * * *.
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R.C. 2151.414(D)(1)(a)-(d).1
{¶11} Although this Court has held that the trial court must make an explicit best
interest finding after considering the mandatory factors set forth in R.C. 2151.414(D), it has only
noted in dicta that the trial court “should” also detail its findings on each best interest factor, as
such reasoning would aid this Court’s ability to conduct a meaningful appellate review. See,
e.g., In re M.B., 9th Dist. Summit No. 21760, 2004–Ohio–597. The trial court explicitly found
that “it is in the child’s best interests to permanently terminate parental rights and grant
permanent custody to [LCCS].” It further indicated that, in making that finding, it had
considered “all relevant factors, including, but not limited to, those factors enumerated in R.C.
2151.414(D)[.]”
{¶12} Moreover, the record supports the trial court’s conclusion that permanent custody
was in the best interest of A.H. The first best interest factor required the trial court to consider
the interaction and interrelationship between A.H. and Father. The caseworker testified that
Father had failed to regularly visit A.H. during the two years after he was removed from Father’s
home. For example, during the five months that A.H. was placed in the first mental health
facility, Father visited him only one or two times. While A.H. was in a detention facility for
more than four months, Father visited him only once. At the mental health facility where A.H.
had most recently been residing for the five months prior to the hearing, Father visited A.H. only
twice. A.H.’s therapist testified that A.H. became upset and anxious when Father did not come
to the most recent visit he had scheduled there, at which he had promised to bring A.H. certain
clothes that he had left at Father’s home.
1
The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case.
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{¶13} Through his own testimony, Father conceded that, throughout the two years that
A.H. had been in the temporary custody of LCCS, he had visited him only sporadically.
Although Father attempted to justify some of his lack of visitation by stating that he was not
permitted to visit A.H. at certain institutions, other witnesses contradicted that testimony. Father
offered no explanation for why he had missed the last visit that he had scheduled with A.H.
{¶14} A.H. had expressed no desire to return to the home of Father. Although he
wanted to return to the home of his aunt, A.H. had threatened one of his young cousins who lived
there and was prohibited by a court order from having unsupervised contact with that child.
Moreover, after that violent incident, the aunt no longer expressed a willingness to provide a
home for A.H. The guardian ad litem expressed her opinion that permanent custody was in the
best interest of A.H., explaining that the aunt was no longer willing to provide a home for A.H.
and Father had never played a primary role in the life of A.H.
{¶15} As explained already, the custodial history of A.H. is not clear from the record
except that he had spent most of his life moving in and out of relative, non-relative, and
institutional homes because no caregiver had been able to stabilize his mental health or control
his serious behavioral problems. At the time of the hearing, A.H. had been living in a mental
health treatment facility for five months. His individual therapist described A.H. as being “pretty
unmanageable” when he arrived at the facility. She explained that he was “hyper-aroused all the
time” and sometimes had to be put in physical restraints because he posed a risk of physically
harming himself or others.
{¶16} The therapist opined that A.H. had “definitely progressed” during the five months
he had been at the facility, where every moment of his day was highly structured. A.H.
continued to interact better in one-on-one situations than in group settings because he became
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overwhelmed with many other children in the room and tended to act out. Although A.H. had
made significant progress there, she did not know when he would be stable enough to be released
from the facility. The therapist further explained that it was essential for A.H. to have a
caregiver who fully understood his diagnoses and had been adequately trained in how to
appropriately deal with his special needs.
{¶17} Because A.H. had spent most of his life living in temporary homes, he was in
need of a legally secure permanent placement. Although Father argues that he was “willing and
able to take custody” of A.H., the evidence before the trial court demonstrated otherwise. Father
had not visited A.H. often enough to maintain a relationship with him, nor had he made an effort
to understand his special needs.
{¶18} Father conceded that he and his wife had been unable to handle A.H.’s aggressive
behavior when he lived in their home and that, while he lived with Father, A.H. had been
hospitalized repeatedly for self-harming behaviors and thoughts. Although A.H. had been in
counseling and his medications had been adjusted several times, Father testified that nothing
seemed to help control A.H.’s behavior and he only became more aggressive over time. When
A.H. was removed from Father’s home, he was not taking his psychiatric medication and had
assaulted Father’s then-pregnant wife by punching her in the abdomen, stating that he did not
want a little brother or sister, and had threatened to stab Father in his sleep.
{¶19} According to the caseworker, Father had made minimal progress on the
reunification goals of the case plan. During the eight months that the current caseworker had
been assigned to this case, Father had never attended a family team meeting even though the
caseworker mailed him advance notice of each meeting. At the time of the hearing, the
caseworker had not spoken to Father for a few months because he had made no attempts to
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contact her and had not provided her with his updated contact information. The caseworker
expressed particular concern that Father had made little effort to understand A.H.’s mental health
diagnoses and had no plan in place to address the special needs of A.H. if he were returned to
Father’s custody. Father admitted that he had never spoken to A.H.’s current therapist about any
of the child’s problems or the techniques that the therapist had found to be effective in
controlling A.H.’s destructive and harmful misbehavior.
{¶20} Father’s testimony at the hearing further demonstrated that he lacked an
understanding of his son’s significant mental health and behavioral problems or the extent to
which those problems were affected by his home environment. When Father was initially asked
what had changed during the past two years that would enable him to provide A.H. with a
suitable home, Father could not point to anything. He simply stated that he and his wife had
grown to “accept the fact that we have to deal with [A.H.], regardless of what [his] behaviors
[are.] He’s our kid.” Father also testified that he had reduced his long work hours, explaining
that if he were not so tired, he would have more energy to deal with A.H.
{¶21} When asked a similar question later in the hearing, Father responded that “[A.H.
has changed.” His later statement that A.H. had learned to control his behavior only
demonstrated his misunderstanding that the progress A.H. had made in his current treatment
setting would automatically transfer to another environment. Father explained that A.H. could
be “stubborn,” implying his belief that A.H. unnecessarily demanded attention when he should
be more self-sufficient. He further testified that he had tried to explain to A.H. that his younger
sibling and step-sibling needed more attention because they were several years younger.
{¶22} Moreover, although Father testified that he planned to look for another home, at
the time of the hearing, he was living in a four-bedroom house with his wife, child, and step-
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child, as well as his sister, her husband, and their four children. Father explained that, if A.H.
were to come live in that home, he would share a bedroom with Father, his wife, and their two
children. A.H.’s therapist expressed concern about A.H. returning to that type of environment.
She believed that A.H. would be overwhelmed by so many people in the home and that the
environment could impede the ongoing progress that he had made during the past five months.
{¶23} Consequently, the trial court reasonably concluded that Father was not prepared to
provide A.H. with a stable permanent home. Because there were no other relatives who were
willing and able to do so, the court concluded that A.H. would achieve a legally secure
permanent placement only if it terminated Father’s parental rights and A.H. was placed for
adoption. Because there was substantial evidence before the trial court to support its best interest
determination, Father’s assignment of error is overruled.
III.
{¶24} Father’s assignment of error is overruled. The judgment of the Lorain County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
ROBERT CABRERA, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ERIN K. MEYER, Assistant Prosecuting
Attorney, for Appellee.