In re K.D. , 2019 Ohio 1077 ( 2019 )

[Cite as In re K.D., 2019-Ohio-1077.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 18AP-746
[K.D.], : (C.P.C. No. 16JU-6823)
[S.F., : (ACCELERATED CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on March 26, 2019
On brief: Nicole L. Thornton, Guardian ad Litem.
On brief: Robert J. McClaren, for Franklin County Children
Services.
On brief: William T. Cramer, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
LUPER SCHUSTER, J.
{¶ 1} Appellant, S.F. ("biological father"), biological father of K.D., appeals from
the decision and judgment entry of the Franklin County Court of Common Pleas, Division
of Domestic Relations, Juvenile Branch, terminating his parental rights and placing K.D. in
the permanent custody of appellee, Franklin County Children Services ("FCCS"). For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} This case involves FCCS's request for permanent custody of K.D., born
December 2011. At the time of K.D.'s birth, K.D.'s mother was married to D.D. ("legal
father"), and D.D. became K.D.'s legal father. However, subsequent DNA testing confirmed
S.F. is K.D.'s biological father.
No. 18AP-746 2
{¶ 3} Prior to the instant action, K.D. had been the subject of four complaints
brought by FCCS since 2015 regarding an allegation of abuse, neglect, and/or dependency.
The fifth, and most recent, complaint, which is the fourth refiling of the original complaint
and is the subject of this case, was filed on May 31, 2016 and alleges K.D. is an abused,
neglected, and dependent child. At that date, K.D. was four years old and was already in
the temporary custody of FCCS, not living with mother and legal father. FCCS filed the
abuse, neglect, and dependency action after receiving information that K.D. was the victim
of sexual activity, that mother and legal father were injecting heroin with K.D. present, that
there is domestic violence between mother and legal father, that the home conditions are
"deplorable," the home has no water or gas due to mother and legal father's drug use, that
police have been dispatched to the home seven times in a one-month period to respond to
issues concerning narcotics, guns, and domestic violence, and that mother and legal father
have not made K.D. available to FCCS to assess her safety. (May 31, 2016 Compl. at 1.) The
complaint states K.D. has a developmental disability, a genetic disorder, and requires
physical and speech therapy. Additionally, the complaint states K.D. required treatment
from an ENT due to possibly being hit in the face, and K.D. required dental procedures to
remove rotten teeth. Moreover, the complaint states K.D. disclosed sexual abuse by both
mother and legal father. K.D. has been diagnosed with a mental health condition and
requires psychiatric and psychological care.
{¶ 4} Pursuant to the complaint, mother had missed 16 drug screens and legal
father had not completed orientation for drug treatment program. Mother has attended
supervised visits with K.D. while under the influence of drugs. At the time of the complaint,
legal father had a domestic violence criminal conviction from 2014 and a pending
revocation warrant.
{¶ 5} The trial court granted FCCS a temporary order of custody ("TOC") on June 2,
2016 and issued no contact orders with the child by mother and legal father. Subsequently,
in an uncontested proceeding on July 5, 2016, the trial court adjudicated K.D. an abused,
neglected, and dependent minor, and the trial court again ordered mother and legal father
to have no contact with K.D. Biological father, who resides in Iowa, then filed a motion for
legal custody on August 2, 2016.
No. 18AP-746 3
{¶ 6} At a subsequent dispositional hearing on August 19, 2016, the trial court
granted an order of temporary custody and commitment ("TCC") to FCCS, approved a case
plan, ordered mother and legal father to have no contact with K.D., and ordered FCCS not
to place K.D. with biological father without a court hearing. While the trial court dismissed
biological father's motion for legal custody, it permitted biological father to remain a party
to K.D.'s case. The trial court also ordered that a copy of the phone call schedule between
K.D. and biological father be given to K.D.'s counselor.
{¶ 7} FCCS filed a motion for a second extension of the TCC order on November 29,
2016, and the trial court granted the motion to extend on January 10, 2017 with additional
orders that the child's guardian ad litem be notified prior to any change in placement and
that FCCS was to confer with K.D.'s therapist to determine an appropriate schedule for
visits with biological father. On March 22, 2017, FCCS then filed a motion to approve an
amended case plan to add for biological father mental health assessment and services, a
psychological assessment and recommendations, parenting classes, visitation,
participation in the child's treatment and needs as recommended by K.D.'s professional
providers, and cooperation with Interstate Compact on the Placement of Children ("ICPC")
services. FCCS additionally proposed that legal father perform a domestic violence
assessment. Then, on May 5, 2017, FCCS filed a motion asking the trial court to review the
August 19, 2016 order regarding K.D.'s visits with biological father.
{¶ 8} On June 1, 2017, the magistrate granted FCCS's motion to approve and adopt
the amended case plan, suspending biological father's face-to-face parenting time until
further court hearing. However, the order permitted regular telephone contact between
K.D. and biological father to continue pursuant to the schedule determined between FCCS
and biological father.
{¶ 9} Eventually, on June 6, 2017, FCCS filed a motion for permanent court
commitment ("PCC"), also known as permanent custody, of K.D. The trial court held a
pretrial conference on September 20, 2017 and set a status conference to allow time for
biological father to undergo a psychological evaluation, a parent/child observation, and for
completion of the ICPC process in Iowa. However, as of December 1, 2017, neither the ICPC
process nor the parent/child observation had been completed. Thus, the trial court set
another status conference for March 2, 2018.
No. 18AP-746 4
{¶ 10} At the final status conference on July 11, 2018, the trial court ordered a face-
to-face visit between K.D. and biological father to allow observation by the caseworker.
Subsequently, on August 12, 2018 the attorney guardian ad litem and the lay guardian ad
litem filed a joint report recommending the court grant FCCS's motion for permanent
custody.
{¶ 11} The matter ultimately came for trial on August 20, 2018. Neither mother nor
legal father appeared for trial. However, biological father appeared and testified that he
had five children, including K.D. His other four children are grown. Biological father
testified that he currently lives in Iowa with his adult daughter and her children, ages 11 and
5. The 11-year-old has spina bifida and is confined to a wheel chair, and biological father
testified he regularly physically assists his grandson and attends doctor appointments.
Additionally, biological father testified his grandson has an IEP for school and that
biological father has participated in the IEP process with his grandson.
{¶ 12} Biological father testified he met mother online in 2009 or 2010 and that she
agreed to move to Iowa to live with him. However, biological father said mother moved
back to Ohio when she was pregnant and never returned, telling biological father she had
miscarried the pregnancy. Biological father said he saw a picture of mother with a baby on
her lap and suspected he might be the child's father due to the timing of the photograph.
He said he inquired with mother's relatives about the baby and was told that legal father
was the child's father.
{¶ 13} Biological father testified he learned that K.D. had been removed from
mother's care in September 2015 and he then became involved in K.D.'s case. In November
2015, biological father completed DNA testing. FCCS added biological father to K.D.'s case
plan in December 2015. The parties agree that none of the allegations in the original
complaints related to biological father.
{¶ 14} Biological father testified he first met K.D. in December 2015 when he
attended a visit with K.D.'s maternal grandparents. He then received scheduled visitations
with K.D. for one time a month moving forward. However, in October 2015, after only two
visits between biological father and K.D., FCCS requested biological father's visits be
cancelled based on the recommendation of K.D.'s therapist. Biological father participated
No. 18AP-746 5
in a parent-child observation in February 2018 and again in August 2018, just prior to trial,
for a total of four visits since December 2015.
{¶ 15} Alysha Stuck, the caseworker from FCCS assigned to K.D.'s case, testified that
both mother and legal father failed to complete the case plan. FCCS referred mother and
legal father for numerous drug programs but neither one followed through. Additionally,
Stuck testified mother and legal father were inconsistent with visitation prior to the no-
contact order in November 2015, and there were no visitations at all after the no-contact
order due to K.D.'s disclosing sexual and physical abuse to her therapist. Ultimately, FCCS
lost contact with mother and legal father in March 2016.
{¶ 16} Stuck further testified that K.D. has been in continuous custody of FCCS since
June 29, 2015, and that K.D. had been in the same foster placement from July 2015 to July
2018. However, following concerns regarding the foster mother's driving "erratically" with
children in the car, including driving on sidewalks and curbs, FCCS placed K.D. in respite
care while it investigated the situation. (Aug. 20, 2018 Tr. at 90.) Once K.D. was in respite
care, Stuck testified her behavior started to improve, and the respite care ultimately
transitioned into a new foster home for K.D. K.D. has been with her current foster parents
since July 2018, and she had a previous relationship with the new foster parents because
they had previously served as respite care for K.D. Stuck testified K.D. is doing well in her
new foster home, has good communication with her new foster parents, refers to her foster
parents as "mom" and "dad," hugs her new foster parents, and K.D. is bonded with her new
foster parents. (Aug. 20, 2018 Tr. at 130.) The new foster home is a potential adoptive
home. Additionally, Stuck noted that since her placement in the new foster home, K.D. has
ceased wetting her pants and there has been a decrease in K.D.'s other behavioral
disturbances.
{¶ 17} Stuck testified regarding the requirements of biological father's case plan.
Pursuant to the case plan, biological father was to have stable housing and income;
maintain consistent visits with K.D.; complete the ICPC process and follow any
recommendations; attend K.D.'s medical appointments; complete a domestic violence
assessment, parenting classes, and a psychological evaluation; and ensure K.D.'s needs
were met. Stuck agreed that biological father had stable housing and income.
No. 18AP-746 6
{¶ 18} With regard to the parenting classes, FCCS referred biological father to a
parenting class in Iowa. While the program did not have a set number of classes needed
for completion, biological father stopped attending after three classes because he felt the
sessions were not beneficial to K.D.'s needs. Stuck testified that FCCS then encouraged
biological father to maintain contact with K.D.'s therapist as an alternative way to get more
direct recommendations on the care K.D. would require, but biological father failed to do
so. Thus, Stuck said biological father did not complete the parenting classes portion of the
case plan.
{¶ 19} As to the domestic violence assessment, Stuck testified it was made a
requirement of biological father's case plan because he had a prior criminal conviction in
Iowa for domestic violence. Biological father was referred for individual counseling. Stuck
testified biological father has consistently attended counseling for one year, but that this
portion of the case plan is ongoing and not completed.
{¶ 20} Stuck testified that it was "extremely common" for K.D. to report that she did
not want to participate in telephone calls with biological father, and that K.D. would
frequently indicate her stomach hurt when it was time to make a phone call. (Aug. 20, 2018
Tr. at 117.) While Stuck said she did not have any particular concerns in her observations
of the in-person visits between K.D. and biological father, K.D. reported after the most
recent visit in August 2018 that she did not want to do any more visits with biological father.
Stuck testified K.D. exhibits "mixed emotions" about the visits with biological father, and
she said she does not believe K.D. is bonded with biological father. (Aug. 20, 2018 Tr. at
121.) Stuck agreed it would be difficult for K.D. to form a bond with biological father after
only four, short in-person visits over the course of three years.
{¶ 21} Regarding the ICPC requirements, Stuck testified biological father completed
two ICPC assessments. The first was denied due to biological father's criminal and legal
history, including a sexual abuse allegation from 2001 that Iowa children's services deemed
"founded," a 2001 domestic abuse conviction, and a 2005 conviction for operating a vehicle
while intoxicated. (Aug. 20, 2018 Tr. at 110.) The second ICPC was approved with
recommendations that biological father complete visitation with K.D., participate in K.D.'s
treatment, and continue a parenting program. Stuck testified biological father had not
followed through with those recommendations as of the time of trial. She additionally
No. 18AP-746 7
testified that the reason the second ICPC was approved was because by the time of the
second ICPC, more than ten years had passed since biological father's most recent criminal
conviction.
{¶ 22} Despite the fact that the ICPC was technically approved, Stuck testified that
FCCS continued to have concerns with biological father stemming from the founded
allegation of sexual abuse. Specifically, the allegation was that biological father repeatedly
sexually abused his step-daughter from the time she was in seventh grade until she was a
senior in high school. Stuck testified this allegation presents concern for FCCS in
considering placing K.D. with biological father. Additionally, Stuck testified FCCS had
additional concerns stemming from the psychological evaluation that biological father
completed in which biological father attempted to minimize his history of sexual abuse
allegation despite the finding that the allegation was "founded." At trial, biological father
continued to deny the past allegation of sexual abuse, testifying his ex-wife manufactured
the claim as part of a contentious divorce.
{¶ 23} FCCS also had concerns that biological father reported in his psychological
evaluation that he had no history of domestic violence despite his 2001 conviction for
domestic abuse. Thus, despite biological father technically completing the psychological
component of his case plan, Stuck testified K.D.'s service team continues to have "concerns"
about biological father. (Aug. 20, 2018 Tr. at 115.)
{¶ 24} Stuck also testified about K.D.'s medical needs. K.D. has post-traumatic
stress disorder ("PTSD") and reactive attachment disorder. She has issues with wetting her
pants during the day and masturbation, as well as two self-harm incidents at school in
which she threatened to hurt herself with scissors. K.D. sees a psychiatrist every six months
and receives trauma therapy once a week. Additionally, K.D. takes medication for PTSD
and to help with sleep. Although biological father maintained contact with the FCCS service
team and participated in all the case reviews, he did not attend K.D.'s appointments. FCCS
asked biological father to maintain contact with K.D.'s counselors and providers, but K.D.'s
therapist did not feel it was appropriate for biological father to be involved. As a result,
FCCS would update biological father on K.D.'s medical and educational appointments but
did not provide him with the actual schedule of appointments. Biological father testified
he attempted to communicate with K.D.'s school and therapist but they refused to
No. 18AP-746 8
communicate with him without a release from FCCS. Biological father additionally testified
that he had been in contact with a school in Iowa about K.D.'s potential needs but was told
the school could not make any progress on an IEP for K.D. until they could personally
evaluate her.
{¶ 25} K.D. visits with her maternal grandparents approximately once a week, and
the guardian ad litem concluded those visits are in K.D.'s best interest. The new foster home
has expressed willingness to continue the visits with the maternal grandparents.
Additionally, maternal grandparents oppose biological father getting custody of K.D. out of
fear that he may sexually abuse K.D.
{¶ 26} Victoria Shaker, K.D.'s guardian ad litem, also testified. Shaker testified she
did not see a significant bond between biological father and K.D., and she noted K.D.'s
discomfort with the telephone contact with biological father. Shaker testified she has
ongoing concerns with the sexual abuse allegation against biological father, especially given
K.D.'s history of acting out sexually. Additionally, Shaker testified that K.D. is "doing very
well" in her current foster home, noting that she has ceased wetting her pants and has
demonstrated an ability to redirect her urges for behavior outbursts. (Aug. 21, 2018 Tr. at
23.)
{¶ 27} Ultimately, both the FCCS caseworker and the guardian ad litem testified it
was their recommendation that granting the request for PCC for purposes of adoption was
in K.D.'s best interest.
{¶ 28} Following the trial, the trial court granted FCCS's motion for permanent
custody of K.D. The trial court considered the factors in R.C. 2151.414(D) and determined
there was clear and convincing evidence that it was in K.D.'s best interest to grant the
motion for permanent custody. The court journalized its decision in a decision and
judgment entry dated September 21, 2018. Biological father timely appeals.
II. Assignments of Error
{¶ 29} Biological father assigns the following errors for our review:
[1.] The trial court's determination that appellant's parental
rights should be terminated is not supported by clear and
convincing evidence.
No. 18AP-746 9
[2.] The trial court's determination that the agency made
reasonable efforts to unify this family is not supported by clear
and convincing evidence.
III. Standard of Review
{¶ 30} "In reviewing a judgment granting permanent custody to FCCS, an appellate
court 'must make every reasonable presumption in favor of the judgment and the trial
court's findings of facts.' " In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8,
quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. " '[I]f the evidence is
susceptible of more than one construction, we must give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court's
verdict and judgment.' " In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59,
quoting Karches v. Cincinnati, 38 Ohio St. 3d 12, 19 (1988).
{¶ 31} "Judgments are not against the manifest weight of the evidence when all
material elements are supported by competent, credible evidence." J.T. at ¶ 8. "Pursuant
to R.C. 2151.414(B)(1), a trial court may grant permanent custody if after a hearing it
determines, by clear and convincing evidence, that * * * such relief is in the best interest of
the child." Id. at ¶ 9. "Clear and convincing evidence is that degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the facts to be
established." In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 14. "It is more than a
mere preponderance of the evidence but does not require proof beyond a reasonable
doubt." Id.
IV. First Assignment of Error – Best Interest of the Child
{¶ 32} In his first assignment of error, biological father asserts the trial court erred
in granting permanent custody to FCCS. More specifically, biological father argues the trial
court erred when it determined the termination of his parental rights was in the best
interest of the child.
{¶ 33} "Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014-
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of
Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re
Murray, 52 Ohio St. 3d 155, 157 (1990). However, these rights are not absolute, and a
No. 18AP-746 10
parent's natural rights are subject to the ultimate welfare of the child. In re Cunningham,
59 Ohio St. 2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate
the parental rights of natural parents when such termination is in the best interest of the
child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing
In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000); In re Wise, 96 Ohio App. 3d 619,
624 (9th Dist.1994).
{¶ 34} In deciding to award permanent custody, the trial court must take a two-step
approach. K.L. at ¶ 18. The court must first determine if any of the factors set forth in R.C.
2151.414(B)(1) apply. Id. Here, there is no dispute that K.D. was in the temporary custody
of one or more public children service agencies or private child placing agencies for 12 or
more months of a consecutive 22-month period, satisfying R.C. 2151.414(B)(1)(d).
{¶ 35} Once the trial court determines that one of the circumstances in R.C.
2151.414(B)(1) applies, the trial court must then determine whether a grant of permanent
custody is in the best interest of the child. In re A.J., 10th Dist. No. 13AP-864, 2014-Ohio-
2734, ¶ 16; R.C. 2151.414(B)(1). In determining the best interest of a child, R.C.
2151.414(D)(1) directs that the trial court must consider all relevant factors including, but
not limited to, the following:
(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, or 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 and, as described in [R.C.
2151.413(D)(1)], the child was previously in the temporary
custody of an equivalent agency in another state;
No. 18AP-746 11
(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;
(e) Whether any of the factors in [R.C. 2151.414(E)(7) to (11)]
apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a) through (e).
{¶ 36} The trial court considered all of the above statutory factors with respect to
K.D. and concluded that an award of permanent custody was in the best interest of the child.
Biological father disagrees with the juvenile court's conclusions. We will address biological
father's argument with respect to each of the statutory factors.
A. R.C. 2151.414(D)(1)(a) – Parent, Child, and Sibling
Interrelationships
{¶ 37} The testimony from the FCCS caseworker and the guardian ad litem was
consistent that K.D. is not bonded with biological father. She has a good relationship with
her current foster parents and her behavior has improved since her placement there.
Though biological father argues the lack of bond between him and K.D. is attributable to
his limited visits with K.D., we note that K.D. often expressed that phone calls with
biological father made her stomach hurt and she expressed a desire to no longer visit with
biological father. Based on the evidence presented, this factor weighs in favor of an award
of permanent custody to FCCS.
B. R.C. 2151.414(D)(1)(b) – The Child's Wishes
{¶ 38} There was no in camera interview of K.D. However, based on K.D.'s
communications with the caseworker and the guardian ad litem, as well as their
observations of K.D.'s behavior, K.D. did not have the maturity or ability to fully understand
the concepts of permanent custody and adoption. Both the caseworker and the guardian
ad litem reiterated that K.D.'s behavior has improved in her most recent foster placement,
and that improvement of behavior seemed to be indicative of her comfort level with her
current placement. The caseworker and the guardian ad litem also expressed concern
about how moving K.D. to a placement with biological father would affect K.D. given how
long she has been in the continuous custody of FCCS.
No. 18AP-746 12
C. R.C. 2151.414(D)(1)(c) – Custodial History of the Child
{¶ 39} At the time FCCS filed for permanent custody, K.D. had been in the
temporary custody of FCCS for more than 23 months, which is more than 12 of a
consecutive 22-month period. Further, by the time trial commenced in August 2018, K.D.
had been in FCCS custody for more than 3 years. Biological father does not raise any
argument with respect to this factor.
D. R.C. 2151.414(D)(1)(d) – Need for Legally Secure Placement
{¶ 40} The final consideration under R.C. 2151.414(D)(1) is the child's need for a
legally secure placement and whether that type of placement can be achieved without a
grant of permanent custody to FCCS. It is through this factor that biological father argues
the trial court erred in determining granting FCCS's motion for permanent custody is in
K.D.'s best interest.
{¶ 41} As the trial court noted in its decision and judgment entry, K.D. has lived
most of her life without a secure placement. She has been in continuous foster care for
more than three years due to her mother and legal father's abuse and neglect. After
spending more than two years in the same foster placement, her stability was disrupted
following concerns that her then foster mother's erratic driving posed a danger to K.D.
Additionally, K.D. has special needs, including PTSD, reactive attachment disorder,
possible intellectual and developmental issues, and behavioral issues requiring an IEP for
school. She receives treatment from an occupational therapist, a speech therapist, a
primary care physician, a psychiatrist, a children's therapist, and a trauma-based therapist.
We agree with the trial court that K.D. is in great need of a legally secure placement.
{¶ 42} Biological father agrees that K.D. is in great need of a legally secure
placement, but he disagrees with the trial court's conclusion that placing K.D. in his care
would not achieve such a legally secure placement. Though biological father established
paternity through DNA testing during the fourth refiling of FCCS's complaint, he
nonetheless waited more than four years to make contact with K.D. despite believing he
was her father from the time she was an infant. Biological father does not dispute the trial
court's conclusion that he had not formed much of a bond with K.D., but he blames their
lack of bond on geographical distance and FCCS's decision to suspend his in-person visits
No. 18AP-746 13
pursuant to the recommendation of K.D.'s therapist. As the trial court notes, however,
biological father chose to remain in Iowa after learning he was K.D.'s biological father.
{¶ 43} The trial court noted additional concerns with biological father as a
placement option for K.D. On top of the non-existent bond between biological father and
K.D., biological father also had a history of domestic violence, driving under the influence,
and a "founded" prior allegation of sexual abuse of his step-daughter. His history led to the
denial of biological father as a suitable placement under the first ICPC. Though the second
ICPC was approved due to passage of time, both the FCCS caseworker and the guardian ad
litem testified they had ongoing concerns with biological father's background.
{¶ 44} While biological father was permitted telephone contact with K.D. three
times a week, the testimony indicated biological father was inconsistent in calling K.D. until
an order of the trial court monitored the calls. The trial court found that biological father's
own actions "contributed greatly" to the delay and limitation of in-person visits with K.D.
(Sept. 21, 2018 Decision & Jgmt. Entry at 15.)
{¶ 45} Despite the lack of bond, biological father argues he has substantially
complied with his case plan, including maintaining stable housing and income, attending
counseling, and attending some parenting classes. However, "R.C. 2151.414(D) does not
require courts to deny a children services agency's motion for permanent custody solely by
virtue of a parent's substantial compliance with the case plan." Brooks at ¶ 62.
{¶ 46} We agree with the trial court that while biological father seems "well-
intentioned," his efforts in the more than two years that he became involved in the case
were not significant enough to form a bond with K.D. (Decision & Jgmt. Entry at 16.)
Though he asserts that he attempted to make contact with K.D.'s treatment providers but
was told he was not authorized to receive information, biological father provided no
evidence that he attempted to follow up with FCCS to obtain a release to speak with K.D.'s
treatment providers. He was uncertain of K.D.'s exact diagnoses and treatment needs. He
stopped attending parenting classes after only three classes because he determined they
were not helpful to K.D.'s specific situation. Despite being ordered to undergo a domestic
violence assessment as part of the case plan, he declined to do so, and he minimized the
significance of his past history of domestic violence and sexual abuse allegations in his
psychological evaluation. During his testimony, biological father repeatedly blamed FCCS
No. 18AP-746 14
for the lack of a bond between himself and K.D., failing to account for the ways his actions
and inactions contributed to the lack of bond. By his own admission, biological father made
no effort to be a part of K.D.'s life until she was in the temporary custody of FCCS, and he
does not seem to recognize that his complete absence from the first four years of K.D.'s life
is likely the predominant factor in the lack of a parent-child bond.
{¶ 47} The trial court additionally noted that in her current treatment foster home,
K.D. is bonded to her foster parents, appears comfortable, is attaching, improving, and
happy. There is a great need for K.D. to maintain access to her team of doctors and
therapists that have been in place for over three years, and her current foster home, which
is a prospective adoptive home, provides her that continued access.
{¶ 48} Based on all the testimony and evidence presented, including the entire case
file, the trial court determined permanent custody is in the best interest of the child. Having
reviewed the entire record, we conclude the trial court had clear and convincing evidence
to conclude permanent court commitment was in the best interest of K.D. Accordingly, we
overrule biological father's first assignment of error.
V. Second Assignment of Error – Efforts to Reunify the Family
{¶ 49} In his second and final assignment of error, biological father argues the trial
court erred in concluding FCCS made reasonable efforts to reunify the family. Under R.C.
2151.413(D)(3)(b), a children's services agency may not file for permanent custody "[i]f
reasonable efforts to return the child to the child's home are required under [R.C. 2151.419,
and] the agency has not provided the services required by the case plan to the parents of
the child or the child to ensure the safe return of the child to the child's home." R.C.
2151.419(A)(1) provides that a children's services agency must prove that it has made
"reasonable efforts to prevent the removal of the child from the child's home, to eliminate
the continued removal of the child from the child's home, or to make it possible for the child
to return safely home."
{¶ 50} Biological father relies on the Supreme Court of Ohio's decision in In re C.F.,
113 Ohio St. 3d 73, 2007-Ohio-1104, for the proposition that "the state must have made
reasonable efforts to reunify the family prior to the termination of parental rights." C.F. at
¶ 21. However, the Supreme Court continues to hold in C.F. that the reasonable efforts
requirement under "R.C. 2151.419(A)(1) does not apply in a hearing on a motion for
No. 18AP-746 15
permanent custody filed pursuant to R.C. 2151.413." C.F. at ¶ 43. "This is because a child
support agency must have proven reasonable efforts prior to filing a motion for permanent
custody." In re A.N.F., 10th Dist. No. 17AP-905, 2018-Ohio-3689, ¶ 21, citing In re E.R.
J.R., 10th Dist. No. 17AP-82, 2017-Ohio-7188, ¶ 53. "If the agency has not established that
reasonable efforts have been made prior to the hearing on a motion for permanent custody,
then it must demonstrate such efforts at that time." C.F. at ¶ 43. Thus, where the record
reflects that the trial court has made a finding that the agency has made reasonable efforts
as required by R.C. 2151.419(A)(1), the prohibition on filing a motion for permanent
custody under R.C. 2151.413(D)(3)(b) does not apply. A.N.F. at ¶ 21, citing In re K.L., 10th
Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 40.
{¶ 51} Here, the trial court made findings that FCCS made reasonable efforts to
prevent the continued removal of the child from the home on January 10, 2017. At that
time, the finding stated biological father was not participating in case services and has a
criminal background including sexual abuse of a minor. These findings satisfy the
reasonable efforts requirement under R.C. 2151.419(A)(1). A.N.F. at ¶ 22.
{¶ 52} Despite this finding, biological father argues FCCS did not do enough to
facilitate reunification with K.D. As K.D. has never lived with biological father, it seems
biological father's argument has less to do with reunification and instead correlates to his
argument under the first assignment of error that the trial court should not have found
granting FCCS's motion for permanent custody to be in the best interest of the child.
Biological father again blames FCCS for the lack of bond between biological father and K.D.,
alleging FCCS failed to provide him with specific referrals for parenting classes and
domestic violence counseling, failed to provide him with the appropriate releases to be able
to communicate with K.D.'s treatment providers, and failed to facilitate face-to-face visits
between biological father and K.D.
{¶ 53} The evidence discussed in our resolution of biological father's first
assignment of error explains the efforts FCCS made to facilitate a bond between biological
father and K.D. However, biological father's own history of domestic violence and sexual
abuse resulted in the denial of the first ICPC, unquestionably contributing to a delay in the
formation of any bond. Biological father once again attempts to shift any blame in a lack of
bond with K.D. to FCCS despite his waiting more than four years to take a DNA test and
No. 18AP-746 16
not following up on recommendations of the case plan in order to have more contact with
K.D. FCCS provided biological father with assistance for visits, made gas cards available,
offered partial reimbursement for hotel stays, and made efforts to help biological father
make steps towards approval as a possible placement for K.D.
{¶ 54} Based on the entire record, there was clear and convincing evidence that
FCCS made reasonable efforts under the circumstances to facilitate biological father's
participation in the case. Ultimately, all of the factors combined led to the conclusion that
granting FCCS's motion for permanent custody was in K.D.'s best interest. We overrule
biological father's second and final assignment of error.
VI. Disposition
{¶ 55} Based on the foregoing reasons, clear and convincing evidence supports the
award of permanent custody to FCCS. Having overruled biological father's two
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BRUNNER and BEATTY BLUNT, JJ., concur.