In re D.F. ( 2012 )

[Cite as In re D.F., 2012-Ohio-3063.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
IN THE MATTER OF:
D.F., CASE NO. 16-11-14
ADJUDICATED NEGLECTED AND
DEPENDENT CHILD. OPINION
[DARRELL D. FRANCIS - APPELLANT].
IN THE MATTER OF:
H. F., CASE NO. 16-11-15
ADJUDICATED NEGLECTED AND
DEPENDENT CHILD. OPINION
[DARRELL D. FRANCIS - APPELLANT].
IN THE MATTER OF:
S. F., CASE NO. 16-11-16
ADJUDICATED NEGLECTED AND
DEPENDENT CHILD. OPINION
[DARRELL D. FRANCIS - APPELLANT].
Case Nos. 16-11-14, 16-11-15, 16-11-16
Appeals from Wyandot County Common Pleas Court
Juvenile Division
Trial Court Nos. C 2102014, C2102015, C2102016
Judgments Affirmed
Date of Decision: July 2, 2012
APPEARANCES:
Kelle M. Saull for Appellant
Douglas D. Rowland for Appellee
WILLAMOWSKI, J.
{¶1} Father-appellant Darrell Francis (“Francis”) files this appeal from the
judgment of the Court of Common Pleas of Wyandot County, Juvenile Division
granting permanent custody of his children to the Wyandot County Department of
Job and Family Services (“the Agency”). For the reasons set forth below, the
judgment is affirmed.
{¶2} On September 7, 2010, the Agency filed a complaint alleging that
D.F., J.F. and S.F. were neglected and dependent based upon a domestic violence
incident and the condition of the home. Francis had custody of the children at the
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Case Nos. 16-11-14, 16-11-15, 16-11-16
time, though the mother did not reside with them.1 The trial court granted
temporary custody to the Agency on September 9, 2010. An adjudicatory hearing
was held and on October 4, 2010, the trial court found the children to be
dependent, a finding with which Francis agreed. The claim of neglect was
dismissed by the Agency.2 The disposition hearing was held on November 1,
2010. The children were placed in the temporary custody of the Agency and
Francis was ordered to comply with the case plan.
{¶3} On May 25, 2011, the Agency filed a motion for permanent custody
alleging that the children were abandoned and that it was in their best interest for
the Agency to take permanent custody. A hearing was held on the motion on
October 24, 2011. The children’s mother surrendered her parental rights, but
Francis did not. On November 16, 2011, the trial court granted the Agency’s
motion and terminated the parental rights of Francis. Francis appeals from this
judgment and raises the following assignment of error.
The trial court erred when finding it was in the best interest of
the minor children to grant [the Agency] permanent custody
because said finding was contrary to law and against the
manifest weight of the evidence.
1
Francis and the mother were never married and no longer had a relationship.
2
The complaint had two counts: Count 1 was neglect, Count 2 was dependency. The trial court dismissed
Count 1 as to Francis and found the children dependent. The children were found to be neglected and
dependent as to the mother.
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Case Nos. 16-11-14, 16-11-15, 16-11-16
{¶4} The sole assignment of error is that the trial court’s judgment was not
in the best interest of the children. The termination of parental rights is governed
by R.C. 2151.414.
(B)(1) Except as provided in division (B)(2) of this section, the
court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody of the child
to the agency that filed the motion for permanent custody and
that any of the following apply:
***
(b) The child is abandoned.
***
(D)(1) In determining the best interest of a child at a hearing
held pursuant to division (A) of this section or for the purposes
of division (A)(4) or (5) of section 2151.353 or division (C) of
section 2151.415 of the Revised Code, the court shall 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
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Case Nos. 16-11-14, 16-11-15, 16-11-16
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 division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
(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 divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency
on the earlier of the date the child is adjudicated pursuant to
section 2151.28 of the Revised Code or the date that is sixty days
after the removal of the child from home.
***
(E) In determining at a hearing held pursuant to division (A) of
this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code whether a child cannot be placed
with either parent within a reasonable period of time or should
not be placed with the parents, the court shall consider all
relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A)
of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code that one or more of the following
exist as to each of the child's parents, the court shall enter a
finding that the child cannot be placed with either parent within
a reasonable time or should not be placed with either parent:
(1) Following the placement of the child outside the child's
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
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Case Nos. 16-11-14, 16-11-15, 16-11-16
placed outside the child's home. In determining whether the
parents have substantially remedied those conditions, the court
shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the
child;
***
(10) The parent has abandoned the child.
***
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the
child.
(14) The parent for any reason is unwilling to provide food,
clothing, shelter, and other basic necessities for the child or to
prevent the child from suffering physical, emotional, or sexual
abuse or physical, emotional, or mental neglect.
***
(16) Any other factor the court considers relevant.
In this case, the trial court found that Francis had abandoned his child. “[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, regardless of whether
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Case Nos. 16-11-14, 16-11-15, 16-11-16
the parents resume contact with the child after that period of ninety days.” R.C.
2151.011(C).
{¶5} A review of the record shows that Francis had no contact with his
children from December 16, 2010, until the filing of the motion for permanent
custody on May 25, 2011. This is 160 days without contact, which exceeds the
ninety days required for a legal finding of abandonment. Francis admits that his
behavior met the legal definition of abandonment. Instead, he argues that the
termination of the parental rights was not in the children’s best interests. Having
found that the children were legally abandoned, the court then needed to address
whether it was in the best interests of the children to terminate Francis’ parental
rights. In reaching its determination, the trial court made the following findings.
The children have been abandoned by their parents as defined in
Section2151.011(C). Father has not visited with his children for
more than 90 days and mother has admitted to that same
allegation. Evidence also shows neither parent has completed
their case plan goals. Those goals were put in place to allow the
children to return to one or both parents and have some stability
and parental confidence. Neither parent has communicated
with the Department to check on their children’s welfare again
for substantial periods of time. None of the children can be
placed with either parent within a reasonable amount of time
nor should they be returned. Mother and father have had
multiple residences showing a lack of stability. Father said he
could care for the children now but says that while being
shackled and currently incarcerated. Father has lived in a
shelter as well as jail. Neither parent has displayed the
competence these children need.
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Case Nos. 16-11-14, 16-11-15, 16-11-16
The Court has no confidence these children could be returned
within a reasonable time, given the evidence today and the
history of both parents; their lack of communication and contact
with their children; lack of stable housing; and legal problems.
The Court finds the children interact well with each other.
There was no evidence showing how the children interacted with
either parent within numerous months. The children deserve a
safe, legal and secure home with consistency and love from their
caregivers. The children are doing well now and thriving
although their past problems had to be addressed because of not
being addressed when they were with their parents, i.e. delays in
development, unimaginable dental problems and the pain that
must have come with that to a child who needed a root canal in
every tooth in his mouth, and the suffering that must have
caused.
Nov. 16, 2011 Entry, 5.
{¶6} Francis testified that he had stabilized his life and had a place to live.
However, he was in Franklin County Jail for a community control violation at the
time of the hearing. Tr. 9. He was on community control for a theft charge which
occurred earlier in 2011. Tr. 9. His housing was with his new girlfriend that he
had been seeing for almost four months and he had resided there for
approximately five weeks prior to reporting to jail. Tr. 9-10. Before he moved in
with his girlfriend, Francis was living in a homeless shelter in Ohio. Tr. 11.
Francis has no employment as he is “totally disabled” and receives approximately
$620 a month in income. Tr. 13-14. He admitted that he had had no contact with
his children since December 16, 2010, even after he received the motion for
permanent custody. Tr. 14. The case plan required Francis to receive a substance
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abuse assessment, which he did not do. Tr. 18. Francis admitted that he left
Wyandot County because there were outstanding arrest warrants for him in
Wyandot County. Tr. 21. Since July of 2010, Francis had been incarcerated four
different times. Tr. 23.
{¶7} The case worker for the children was April Allison (“Allison”)
Allison testified that the case plan required Francis to seek mental health,
substance abuse, and domestic violence counseling. Tr. 27. He was also to be
assessed for other needed services upon release from jail. Tr. 27. Francis was
required to comply with all the recommendations of the service providers and to
establish a safe, stable living environment for the children. Tr. 28. Finally,
Francis was required to complete parent education. Tr. 28. Allison testified that
Francis had not met any of these goals. Tr. 28. She admitted that at the beginning
of the case, Francis was cooperative and a good father. Tr. 37. Francis had
completed some of the parenting classes, but was still a couple classes shy of
completing the goal. Tr. 38. She also admitted that Francis had completed a
mental health assessment, but never followed through with the recommendations.
Tr. 38. The assessment recommended individual counseling, which Francis did
not attend. Tr. 40. Of the twelve scheduled visits prior to Francis leaving
Wyandot County, he attended nine. Tr. 42. Allison also testified that Francis had
prevented them from aiding him by moving from the area without telling them
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where he was going and without continuing contact with the Agency. Tr. 47. At
no time did Francis contact the Agency and ask for his new home to be evaluated.
Tr. 54. Allison had no contact of any kind with Francis since December 16, 2010.
Tr. 56
{¶8} Given the testimony in this case, the trial court could reasonably
determine by clear and convincing evidence that the Agency had proven that
Francis had not completed or even made substantial progress on the case plan.
R.C. 2151.414(E)(1). At the time of the hearing, Francis had not communicated
with the children for 324 days, which shows a lack of commitment and
communication with the children. Francis also had not contacted the Agency to
even inquire about the children in that time. R.C. 2151.414(E)(4). By failing to
contact the children, Francis had abandoned the children. R.C. 2151.414(E)(10).
Since these factors can be found, the trial court correctly determined that the
children could not be placed with Francis within a reasonable time. The trial court
also considered the factors set forth in R.C. 2151.414(D) to determine the best
interests of the children. The trial court considered the relationship among the
children, the parents, and the foster parents. It considered Francis’ history of
incarceration and his lack of communication with the children. The Guardian Ad
Litem testified that although Francis appears to love his children, it would be in
the best interest of the children if his parental rights were terminated. Given all of
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the evidence, the trial court did not err in finding that a termination of Francis’
parental rights was in the best interest of the children. The assignment of error is
overruled.
{¶9} The judgments of the Court of Common Pleas of Wyandot County,
Juvenile Division are affirmed.
Judgments Affirmed
PRESTON and ROGERS, J.J., concur.
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