In re S.D. , 2020 Ohio 3379 ( 2020 )

[Cite as In re S.D., 2020-Ohio-3379.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.D., R.D., J.D., and M.D. : APPEAL NO. C-200045
C-200084
TRIAL NO. F16-2016X
:
O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 18, 2020
Jon R. Sinclair, for Appellant Mother,
Anzelmo Law and James A. Anzelmo, for Appellant Father,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Allison McWhorter,
Assistant Public Defender, Guardian ad Litem for Appellee minor children.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} In this parental-termination case, the juvenile court overruled the
magistrate’s decision and granted permanent custody of the minor children to the
Hamilton County Department of Job and Family Services (“HCJFS”). The parents
have appealed. Mother argues in one assignment of error that the juvenile court
erred in granting HCJFS’s motion for permanent custody. Father argues in one
assignment of error that HCJFS failed to establish, by clear-and-convincing
evidence, that it should be granted permanent custody of the children.
{¶2} We consider mother’s and father’s assignments of error together. Both
assignments of error are sustained. The judgment of the juvenile court is reversed,
and the cause is remanded with instructions to the juvenile court to issue a judgment
entry adopting the magistrate’s decision awarding legal custody of the children to the
parents with protective supervision of M.D. by HCJFS.
Factual Background
{¶3} On September 13, 2016, nine-year-old S.D. and two-year-old R.D. were
found home alone without adult supervision. A school official had gone to the house
because S.D. had missed ten days of school so far that school year. When the parents
had not returned by 4 p.m. that day, the official called police. It was later discovered
that at the time S.D. was experiencing seizures on a weekly basis. HCJFS was
granted interim custody of S.D. and R.D. on September 14, 2016. On November 16,
2016, the magistrate adjudicated S.D. to be abused, neglected, and dependent, and
R.D. to be neglected and dependent.
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{¶4} The parents were ordered by the magistrate to comply with the
following dispositional orders: (1) provide access to HCJFS and the guardian ad
litem (“GAL”) and sign release-of-information forms; (2) complete mental-health
and chemical-dependency assessments and follow all recommendations; (3)
complete random toxicology screens; (4) obtain and maintain income and stable
housing; (5) complete parenting classes; (6) establish father’s paternity; and (7)
complete AMEND assessment/domestic-violence-awareness classes and follow the
recommendations.
{¶5} While the case involving S.D. and R.D. was pending, mother gave birth
to the two youngest children, J.D. (January 11, 2017) and M.D. (November 28, 2017).
Both children were placed in the interim custody of HCJFS—J.D. on January 23,
2017, and M.D. on December 1, 2017.
{¶6} On June 14, 2018, HCJFS filed a motion for permanent custody, which
was denied by the magistrate on April 12, 2019. The magistrate ordered that the
children be returned to the custody of their parents, with protective supervision by
HCJFS of M.D. As part of the order for protective supervision, the magistrate
ordered that the parents provide access to HCJFS and the GAL, complete home-
based therapeutic services, complete random toxicology screens, and maintain stable
income and housing.
{¶7} HCJFS and the GAL filed objections and motions to present newly
discovered evidence. The juvenile court held a brief hearing on August 22, 2019, but
decided to consider the parties’ arguments via written submissions instead of
conducting an objection hearing. The court granted the motions to present newly
discovered evidence in part, and accepted evidence that mother had been charged
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with theft on May 23, 2019. The court sustained the objections, set aside the
magistrate’s decision, and granted permanent custody to HCJFS on January 28,
2020.
{¶8} The four minor children in this case all have the same mother. Father
is the confirmed father of the three youngest children, and the alleged father of S.D.
Mother, father, and S.D. are from Guatemala, but came to the United States
approximately four years prior to the permanent-custody trial. Father speaks some
English, but the parents primarily speak Spanish and Mam. Interpreters were
provided to facilitate communication between HCJFS and the parents and during all
court proceedings, visitations, home visits, and services.
{¶9} There have been three HCJFS caseworkers over the course of the case.
Jennifer Adams was the caseworker from October 2016 to November 2017.
Samantha Benny was the caseworker from January 2018 to June 2018. Caitlin
Francesconi was the caseworker at the time of trial after taking over in July 2018.
Julie Pederson is the GAL for all four children.
{¶10} Over four days of trial, the caseworkers and GAL testified generally
that throughout the case the parents failed to communicate consistently with HCJFS
and did not seem to understand why the children were removed from the home,
what was going on with their case, or what HCJFS’s concerns were for the children.
The Permanent-Custody Determination
{¶11} Parents’ interest in the care, custody, and control of their children “is
perhaps the oldest of the fundamental liberty interests recognized by [the United
States Supreme Court].” In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d
829, ¶ 8, quoting Troxel v. Granville 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 494
OHIO FIRST DISTRICT COURT OF APPEALS
(2000). “Permanent termination of parental rights has been described as the family
law equivalent of the death penalty in a criminal case.” In re D.A. at ¶ 10. The
termination of parental rights should be an alternative of “last resort,” and is only
justified when it is necessary for the “welfare” of the child. In re Cunningham, 59
Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979).
{¶12} “Reviewing a juvenile court’s grant of permanent custody requires that
we independently find that clear and convincing evidence supports the decision.” In
re L.M.B. & M.A.B., 1st Dist. Hamilton Nos. C -200033 and C-200044, 2020-Ohio-
2925, ¶ 8. Clear-and-convincing evidence produces “in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” In re K.H., 119
Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In
reviewing a challenge to the sufficiency of the evidence, we must examine the record
and determine whether the evidence on each element satisfies the clear-and-
convincing standard. In re L.M.B. & M.A.B. at ¶ 8. For manifest-weight challenges,
we must “weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether in resolving conflicts in the evidence, the
[juvenile] court clearly lost its way and created such a manifest miscarriage of justice
that the judgment must be reversed.” In re A.B., 1st Dist. Hamilton Nos. C-150307
and C-150310, 2015-Ohio-3247, ¶ 16.
{¶13} When children have been previously adjudicated abused, neglected, or
dependent and temporary custody has been granted to HCJFS pursuant to R.C.
2151.353(A)(2), HCJFS may then move for permanent custody of the children
pursuant to R.C. 2151.413(A) and 2151.414. The court will grant permanent custody
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to HCJFS if a two-prong test is satisfied. The court must find, by clear and
convincing evidence, that: (1) one of the enumerated factors in R.C.
2151.414(B)(1)(a)-(e) applies, and (2) permanent custody is in the best interest of the
children under R.C. 2151.414(D)(1)(a)-(e). See R.C. 2151.414(B)(1).
The First Prong—R.C. 2151.414(B)
{¶14} The first prong can be satisfied by any one of five conditions, including
if the court finds that the children cannot be placed with either of the children’s
parents within a reasonable time or should not be placed with the children's parents,
or if the children have been in the custody of a children’s services agency for at least
12 months of a consecutive 22-month period prior to the filing of the motion for
permanent custody (“12-in-22” provision). R.C. 2151.414(B)(2) and
2151.414(B)(1)(d).
{¶15} The starting point for the 12-in-22 clock is either the date the child was
adjudicated dependent or 60 days after the removal of the child from the home,
whichever is earlier. R.C. 2151.414(B)(1)(e). The end-point for the 12-in-22 clock is
the date the agency filed the motion for permanent custody. In re C.W., 104 Ohio
St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 26.
{¶16} S.D. and R.D. are considered to have been in the temporary custody of
HCJFS since November 13, 2016, 60 days after they were removed from the home.
J.D. is considered to have been in the temporary custody of HCJFS since March 22,
2017. M.D. is considered to have been in the temporary custody of HCJFS since
January 30, 2018. Therefore, M.D. was only in the custody of HCJFS for
approximately four months when it filed its motion for permanent custody on June
14, 2018. The 12-in-22 condition is satisfied as to S.D., R.D., and J.D., but not M.D.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} The juvenile court also found that all of the children could not be
placed with either of the parents within a reasonable time or should not be placed
with the parents. See R.C. 2151.414(B)(1)(a). When determining whether a child
cannot be placed with either parent within a reasonable period of time or should not
be placed with either parent, the court shall consider all relevant evidence. R.C.
2151.414(E). If the court determines, by clear-and-convincing evidence that one or
more of the factors in R.C. 2151.414(E)(1)-(15) exist as to each of the child's parents,
the court must find that the child cannot be placed with either parent within a
reasonable time or should not be placed with either parent. Id.{¶18} Before we begin our analysis, we note our concern that the juvenile
court overruled several of the magistrate’s factual findings that were based on
witness credibility determinations—without hearing any additional evidence. Where
a party files objections to a magistrate’s decision, the juvenile court is authorized to
conduct a de novo review of a magistrate’s legal and factual findings. Juv.R.
40(D)(4)(d). But, where the magistrate makes a factual finding based upon the
credibility of the witnesses, the juvenile court must be mindful when conducting a de
novo review of such a factual finding without entertaining new evidence that the
magistrate, as the trier of fact, “is in the best position to judge the credibility of the
witnesses and the weight to be given to the evidence presented.” State v. Carson, 1st
Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16; see In re X.B., 10th Dist.
Franklin Nos. 16AP–243 and 16AP–277, 2016-Ohio-5805, ¶ 13 (“the magistrate, as
the true trier of fact, was in the better position to judge the credibility of the
witnesses”). The juvenile court judge did not have the advantage of being present in
the courtroom as the witnesses testified and observing the witnesses’ demeanor.
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{¶19} The juvenile court found that the conditions in R.C. 2151.414(E)(1),
(2), (3), (4), (8), (14), and (15) were satisfied, and held that the children could not be
returned to the parents within a reasonable time.
{¶20} R.C. 2151.414(E)(1) requires the court to consider whether:
the parent has failed continuously and repeatedly to substantially remedy
the conditions causing the child to be 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.
{¶21} The children were removed from the home due to concerns over
domestic violence, supervision and parenting, and medical and education neglect.
The magistrate found that the parents had completed all case-plan services and that
the children could be placed with the parents within a reasonable time. The juvenile
court acknowledged that the parents had complied with the case plan, but held that
they had “failed to demonstrate behavior change sufficient to remedy the issues” that
caused the children to be removed from the home. It cited concerns about domestic
violence, the parents’ inability to supervise all four children for extended periods of
time, lack of interaction between the parents and S.D. during visitations, and
mother’s mental health.
{¶22} The allegations of domestic violence originated in the case plan filed by
HCJFS on November 2, 2016. In the case plan, HCJFS caseworker Jennifer Adams
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OHIO FIRST DISTRICT COURT OF APPEALS
noted, “There is no SACWIS [Statewide Automated Child Welfare Information
System] or Clerk of Court’s [sic] history that would indicate that [father] has ever
abused any children before.” But, Adams wrote that S.D. told her that she had seen
father punch mother in the chest and hit mother on the side of the head. S.D. also
said that father would hit her with a phone charger if she did not complete her chores
quickly enough. Adams also noted that “there are marks that have been seen on
R.D.’s legs that the agency and the check clinic may believe to have been caused by
[R.D.] being hit by a switch or tied up.”
{¶23} On November 16, 2016, the magistrate adjudicated S.D. to be abused
based upon the “clear and convincing evidence presented and the stipulations
entered.” In the adjudication of J.D. on April 19, 2017, the parties stipulated to the
complaint for interim custody as written. The complaint stated that S.D. and R.D.
were removed from the home and adjudicated dependent due to concerns of S.D.
being left home alone with R.D., medical neglect of S.D., and domestic violence by
father in the presence of the children. In the adjudication of M.D. on March 1, 2018,
the magistrate found by clear-and-convincing evidence that S.D. and R.D. were
adjudicated abused, neglected, and/or dependent due to educational neglect,
medical neglect, and domestic violence in the presence of the children.1
{¶24} In its decision denying the motion for permanent custody, the
magistrate found that HCJFS had failed to prove that the parents had ever engaged
in altercations or that domestic violence was an ongoing concern in the case. The
juvenile court acknowledged that there was little evidence in the record of domestic
violence. However, it set aside the magistrate’s finding and found that not only had
1 It is important to note that R.D. was never adjudicated abused.
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domestic violence been established, but that the parents had failed to demonstrate
behavioral change regarding domestic violence.
{¶25} Throughout the case, the parents have steadfastly denied that any
domestic violence occurred. Nevertheless, they completed domestic-violence-
prevention services as required by the case plan. It took three referrals because
father was disenrolled twice due to nonattendance, but he completed the Transform
program, which consisted of 28 classes designed to prevent domestic violence.
Mother also completed domestic-violence-prevention services, in the form of the
Women Helping Women classes.
{¶26} The HCJFS caseworkers and the GAL all testified that parents either
could not articulate what they learned from domestic-violence-prevention services,
or gave contradictory answers. Pederson testified that mother appeared visibly
intimated by father. She testified that when asked questions, mother looked fearful,
looked towards father for direction, and would not answer until father nodded or
answered for her. Pederson testified that when she spoke with mother alone, she
answered quickly and without hesitation. However, Pederson admitted that she
never asked mother about domestic violence outside the presence of father. It is also
important to remember that mother speaks no English, while father speaks some
English. Therefore, even if they were communicating through an interpreter, it is
understandable that mother might look to father before answering questions posed
by the GAL or caseworkers.
{¶27} Although father initially testified that he had no idea why he was
required to take domestic-violence classes, and that he only learned about five
percent from the classes, he later testified that the classes were “good,” and that he
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OHIO FIRST DISTRICT COURT OF APPEALS
learned to listen to people and to control his anger and emotions. He testified that
he learned that if he became angry to take a ten minute break and go outside and let
things “air out.” Also, when father completed the Transform program, he received a
completion summary that detailed his participation in the program. According to
the completion summary, father performed “fair” to “good” in all areas of the course,
his efforts were “adequate,” and he “seem[ed] to be at low risk level to re-offend.”
Mother testified that she learned that if she gets into a fight with father she can go
outside or into another room. During the pendency of the case there were no
allegations or physical signs of domestic violence.
{¶28} Considering the parents’ compliance with their case plan, their
testimony at trial that they had learned from services, the fact that there were no
allegations or signs of domestic abuse during the pendency of the case, and the
meager evidence from which the concerns of domestic violence arose in the first
place, the juvenile court’s finding regarding domestic violence was not supported by
clear-and-convincing evidence.
{¶29} Second, we address the issue of the parents’ ability to supervise the
children. The magistrate found that the parents can provide proper supervision. She
cited to the parents’ completion of all case-plan services and the notes from the
parents’ Family Nurturing Center (“FNC”) visitations, which contradicted the
testimony of the GAL and HCJFS caseworkers that the parents’ parenting and
supervision skills at visitations had not substantially improved. She also noted that
during the pendency of the case there were no reports of the parents having
problems supervising the children.
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{¶30} The juvenile court disagreed and held that the parents had not
substantially improved their ability to supervise the children. It relied on the
testimony of the caseworkers and Pederson, all of whom observed only a few
visitations each, and only stayed for a portion of the visitations they did observe.
{¶31} As part of the magistrate’s dispositional orders, the parents were
required to complete parenting classes. Father completed all of the parenting
classes. Mother missed one class, but the caseworkers agreed that she demonstrated
an eagerness to improve her parenting throughout the case.
{¶32} The parents were also ordered to attend visitations with the children at
FNC. During each visitation, an FNC facilitator filled out a “Visitation Observation
and Planning Form” that included notes taken by the facilitator during the visit.
Visitation forms from July 2018 to November 2018 were admitted as exhibits at trial.
Also admitted was an FNC quarterly report covering the period of July 2018 to
September 2018.
{¶33} The quarterly report summarized the parents’ goals for visitations and
indicated whether the parents were progressing on those goals. Overall, the parents
were showing sufficient to very good progress on the majority of their goals. The
quarterly report also summarized significant progress or concerns from the reporting
period. It indicated that the parents achieved two of their goals during the reporting
period—to speak to each child for five minutes and to teach the children something
new during each visit. The report also listed two concerns—the parents consistently
arriving late for visits and their inconsistency in providing redirections to the
children.
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{¶34} Caseworker Samantha Benny testified that the visitations stayed at the
strictest level of facilitation throughout the case, and there was never a
recommendation to decrease the level of facilitation. At trial, mother denied ever
leaving S.D. home alone to watch R.D., despite clear evidence to the contrary, and
both parents gave inconsistent testimony as to why the children were removed from
the home initially and whether they understood HCJFS’s concerns. However, Adams
testified that mother understood that leaving S.D. home alone was a mistake. Father
also testified that leaving S.D. home alone was a mistake.
{¶35} In her answers on the FAIR assessment, mother explained that her
decision to leave S.D. home alone to care for R.D. was based upon cultural norms in
Guatemala. She told the assessor that growing up in Guatemala she helped care for
her younger siblings, including duties usually reserved for adults in the United
States. She expressed frustration that some things that are acceptable in Guatemala
are not acceptable in the United States.
{¶36} Moreover, the parents completed the parenting classes, were clearly
making progress on their parenting goals, and testified that they would not leave S.D.
home alone in the future to care for a younger sibling. The juvenile court’s finding
regarding the parents’ ability to supervise and parent the children was not supported
by clear-and-convincing evidence.
{¶37} Third, we address the issue of the lack of interaction between the
parents and S.D. during visitations. The juvenile court found that parents had failed
to substantially remedy the concerns of neglect because they failed to adequately
interact with S.D. during visitations. As an initial matter, we note that the juvenile
court’s finding that the parents failed to interact with S.D. during visitations is belied
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by the FNC visitation notes and the FNC quarterly report. Nevertheless, we need not
consider whether the court’s finding is supported by clear-and-convincing evidence
because a lack of interaction between parents and a child during visitations does not
fall within the definition of neglect provided by R.C. 2151.03(A).
{¶38} As relevant, R.C. 2151.03(A) defines a neglected child as any child who
“lacks adequate parental care because of the faults or habits of the child’s parents,
guardian, or custodian,” or whose “parents, guardian, or custodian neglects the child
or refuses to provide proper or necessary subsistence, education, medical or surgical
care or treatment, or other care necessary for the child’s health, morals, or well
being.”
{¶39} R.C. 2151.011(B)(1) defines “adequate parental care” as the “provision
by a child’s parent or parents, guardian, or custodian of adequate food, clothing, and
shelter to ensure the child’s health and physical safety and the provision by a child’s
parent or parents of specialized services warranted by the child’s physical or mental
needs.” In re T.B., 12th Dist. Fayette No. CA2014–09–019, 2015-Ohio-2580, ¶ 14. A
lack of interaction during visitations does not fall within those definitions.
{¶40} Lastly, the juvenile court cited to mother’s failure to change her
behavior regarding her mental health. However, the children were not removed
from the home because of concerns regarding mother’s mental health. Therefore,
her mental health should not be considered under R.C. 2151.414(E)(1), and is instead
properly considered under (E)(2).
{¶41} In summary, a lack of interaction between the parents and S.D. during
visitations, even if true, does not fall within the statutory definition of neglect.
HCJFS failed to present clear-and-convincing evidence that the parents “failed
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continuously and repeatedly to substantially remedy the conditions” that caused the
children to be removed from the home. See R.C. 2151.414(E)(1). The juvenile court
erred in finding the R.C. 2151.414(E)(1) condition satisfied.
{¶42} Under R.C. 2151.414(E)(2), the court considers whether a parent
suffers from chronic mental illness, chronic emotional illness, intellectual disability,
physical disability, or chemical dependency that is so severe that the parent will be
unable to provide an adequate permanent home for the child at the present time or
within one year.
{¶43} The juvenile court found the condition in R.C. 2151.414(E)(2) satisfied
because of mother’s mental-health concerns and a possible intellectual disability.
The court noted that mother only has a third grade education, and that her
inconsistent statements and confusion around the expectations of parental care
could be a result of low cognitive functioning. However, to the extent the court found
that mother has an intellectual disability, there was not clear-and-convincing
evidence presented to support such a finding. Testimony that mother was
sometimes confused and made inconsistent statements falls far short of clear-and-
convincing evidence that she has an intellectual disability. Mother’s confusion and
inconsistent statements may just as easily be attributed to a lack of understanding of
United States cultural norms compared to Guatemala, the language barrier, or fear of
government officials.
{¶44} Mother attempted suicide in February 2017, shortly after J.D. was
removed from her care. Afterwards, she completed three sessions of individual
therapy and was discharged. The caseworkers and Pederson testified that mother
could not articulate to them what she had learned from counseling, and only told
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them that she no longer needed to go. Adams testified that mother told her that she
attempted suicide because she was really sad about the children being removed, but
that she would not attempt suicide again.
{¶45} Mother testified that during therapy she addressed her attempt to
commit suicide, and that she and her counselor talked about her mental well-being.
She testified that she felt depressed at the time of her attempt, but no longer felt
depressed after therapy. Mother admitted into evidence a letter from her therapist
that stated that she had completed all scheduled appointments, and that she was
“working hard to make positive changes in her life, and did not report any symptoms
or behaviors that would indicate ongoing depression.” The only evidence presented
by HCJFS to the contrary was from Pederson, who testified that even after therapy,
mother still “looks sad.”
{¶46} Mother’s mental health was undoubtedly a serious concern at one
point in the case. Nevertheless, mother and her counselor both indicated that
mother’s mental health was no longer a serious concern, and HCJFS presented no
evidence that since her suicide attempt, mother’s mental illness has prevented her
from functioning in everyday life, affected her interactions with the children, or has
been an ongoing issue throughout the case. Therefore, the juvenile court’s finding
that mother’s mental illness was so severe as to prevent her from providing an
adequate permanent home was not supported by clear-and-convincing evidence.
{¶47} Under R.C. 2151.414(E)(3), the juvenile court considered whether
either parent had committed any abuse against a child, or caused or allowed a child
to suffer neglect as defined in R.C. 2151.03, between the date that the original
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complaint alleging abuse or neglect was filed and the date of the filing of the motion
for permanent custody.
{¶48} R.C. 2151.414(E)(3) explicitly confines our analysis to the time period
between the filing of the original complaint on September 13, 2016, and June 14,
2018, the date the motion for permanent custody was filed. There was no evidence of
abuse presented after the original complaint alleging abuse and neglect of S.D. and
R.D. was filed. The juvenile court found the condition in R.C. 21515.414(E)(3)
satisfied because of the parents’ neglect of S.D. during visitations. As discussed
above, a lack of interaction with S.D. during visitations does not fall within the
definition of neglect as defined in R.C. 2151.03(A) and is contradicted by the FNC
records. Therefore, the juvenile court’s finding regarding R.C. 2151.414(E)(3) was
not supported by clear-and-convincing evidence.
{¶49} Under R.C. 2151.414(E)(4), the juvenile court considered whether the
parents “demonstrated a lack of commitment toward the child[ren] by failing to
regularly support, visit, or communicate with the child[ren] when able to do so, or by
other actions showing an unwillingness to provide an adequate permanent home for
the child[ren].” (Emphasis added.)
{¶50} The magistrate found that, although the parents had missed
visitations, they had never been discharged from visiting, and that missing visitations
for excusable reasons, such as work or transportation issues, did not justify
terminating their parental rights. The juvenile court overruled the magistrate and
found that the condition in R.C. 2151.414(E)(4) was satisfied due to the parents’
inconsistency in attending visitations.
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{¶51} The parents had visitations with the children twice a week, with each
visitation lasting two hours. The parents’ inconsistency in attending visitations was a
concern since the early days of the case, especially regarding father. Adams testified
that when she was supervising visitations in the earliest days of the case, father
attended about 75 percent of the visitations, and if he did not attend he would call
ahead of time. She also testified that mother was more consistent than father in
attending visitations.
{¶52} However, during the five months leading up to trial, July 1, 2018, to
November 3, 2018, mother missed six and father missed 13 out of a total of 30
scheduled visitations (after subtracting visits canceled by FNC or the foster parents).
Additionally, the parents were over 15 minutes late for at least eight of the visitations
they attended during that time period. Due to frequent missed visitations, the
parents were required to call FNC the day before a visitation and confirm they would
be there; otherwise the visitation would be canceled.
{¶53} The recurring excuses given by the parents were car trouble and work
conflicts. Caseworker Caitlin Francesconi testified that she attempted to provide the
parents with bus passes, and asked father for a work schedule so she could adjust
visitations accordingly, but the parents declined the bus tokens and father never
provided a work schedule. Francesconi testified that father’s work schedule is
sporadic; his employer calls him in the morning if they need him that day, and he
only ends up working two to three days a week. Also, as the trial progressed, the
parents continued to miss visitations. Pederson testified that the parents missed two
visitations in December 2018, right in the middle of trial. Francesconi testified that
in January 2019, the parents had one of their weekly visitations canceled due to three
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consecutive no-shows. However, mother testified that she missed one of those
visitations because she was recovering from surgery, and the other two because of car
trouble.
{¶54} On November 30, 2018, father testified that he had missed two
visitations over the last two months, but admitted that it could have been more.
According to the FNC visitation notes, he had actually missed five during that time
period. He testified that at the time of trial he was only working one to three days
per week. He admitted that HCJFS asked for verification of his employment, but he
never provided it because his job would not give him any documents to verify his
employment.
{¶55} There is no set number of parental visits that proves that a parent is
committed to their child. In re Willis, 3d Dist. Allen No. 1–02–17, 2002-Ohio-4942,
¶ 31. Rather, the “focus [must be] on the particular facts of [the] case and the
language of the statute directing the court to determine whether a parent has
supported, visited, or communicate [sic] with their child when able to do so.”
(Emphasis in original.) Id.{¶56} The credibility of the witnesses is highly relevant to this factor. The
magistrate clearly believed father and mother when they testified that they missed
visitations because of work and transportation issues. The juvenile court had no
basis for overruling the magistrate on those factual findings because the court did
not hear any additional testimony. As the magistrate correctly pointed out, missing
visitations for valid reasons should not be held against the parents. The juvenile
court’s finding regarding R.C. 2151.414(E)(4) was not supported by clear-and-
convincing evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶57} Under R.C. 2151.414(E)(8), the juvenile court considered whether the
parents repeatedly withheld medical treatment or food from the children when they
had the means to provide the treatment or food. The court held that the parents had
withheld medical treatment for S.D.’s seizures.
{¶58} It is undisputed that while in the parents’ care S.D. was having
approximately one seizure a week, and that since being placed in foster care and
receiving medical treatment, she had only one seizure, and that was over two years
before trial.
{¶59} Pederson testified that although the parents said that they took S.D. to
the hospital, they have no understanding of what further treatment is needed or what
S.D.’s medical needs are. Mother testified that they took S.D. to Children’s Hospital
many times, but that the hospital sent them away without seeing S.D. Adams
testified that father told her the same thing early in the case, that they had taken S.D.
to the hospital, but that the hospital did not treat her. Both mother and father
testified that if S.D. was returned to their care, they would seek medical care for
S.D.’s condition.
{¶60} The condition in R.C. 2151.414(E)(8) is not satisfied by the mere
existence of a child’s medical conditions where there was no evidence in the record
that the parents actually withheld medical treatment. In re B.H., 12th Dist. Fayette
No. CA2008-06-019, 2009-Ohio-286, ¶ 29.
{¶61} HCJFS established that the parents knew that S.D. had a medical
condition, but it failed to establish that they withheld medical treatment. In fact, the
parents’ testimony pointed to the opposite—that they sought treatment numerous
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OHIO FIRST DISTRICT COURT OF APPEALS
times but were turned away. The juvenile court’s finding was not supported by clear-
and-convincing evidence.
{¶62} Under R.C. 2151.414(E)(14), the juvenile court considered whether the
parents were unwilling to provide food, clothing, shelter, and other basic necessities
for the children or to prevent the children from suffering physical, emotional, or
sexual abuse or physical, emotional, or mental neglect.
{¶63} The juvenile court found that the condition in R.C. 2151.414(E)(14) was
satisfied because the parents did not consistently attend S.D.’s school or medical
appointments, and, although the parents have adequate income, they did not provide
money, food, or clothing to the children while in foster care.
{¶64} This court has previously questioned the applicability of R.C.
2151.414(E)(14) once a child is placed in the custody of HCJFS. See In re P., 1st Dist.
Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 31 (“It follows that the
R.C. 2151.414(E)(14) condition does not apply once the child is taken into the custody
of HCJFS, since at that point the child’s basic necessities are being provided for by
HCJFS.”). However, in In re P., there was an issue as to whether the parent had the
ability to provide food and other necessities, which is not at issue in the present case.
{¶65} Adams testified that the parents were invited to a meeting at the
hospital regarding S.D. Mother attempted to attend the meeting, but went to the
wrong hospital. This appears to have been an honest mistake, and should not have
been held against the parents. Pederson testified that the parents were invited to
“several” school meetings regarding S.D.’s individualized education plan (“IEP”), but
only attended one. Adams’s and Pederson’s testimony failed to establish that the
parents were unwilling to provide basic necessities for the children.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶66} This case is dissimilar to other cases in which the R.C. 2151.414(E)(14)
condition was found to be satisfied. See, e.g., In re Dylan R., 6th Dist. Lucas No. L-
021267, 2003-Ohio-69, ¶ 11 (the parents used what little money they had to purchase
a video-game console instead of paying rent); In re Briazanna G., 6th Dist. Lucas
No. L-04-1366, 2005-Ohio-3206, ¶ 5 (the parents sold WIC supplies for money to
buy drugs, depriving their child of basic necessities such as food). Although the
parents may not have provided money or clothing for the children while they were in
foster care, they routinely brought food to visitations. There is no indication that the
children were in need of any clothes or money while in foster care, or that their basic
needs were not being met. The juvenile court’s finding was not supported by clear-
and-convincing evidence.
{¶67} Under R.C. 2151.414(E)(15), the juvenile court considered whether the
parents
committed abuse as described in section 2151.031 of the Revised
Code against a child or caused or allowed the child to suffer neglect as
described in section 2151.03 of the Revised Code, and the court
determines that the seriousness, nature, or likelihood of recurrence of the
abuse or neglect makes the child’s placement with the child’s parent a
threat to the child’s safety.
{¶68} The juvenile court found that the likelihood of recurrence of abuse or
neglect made placement with the parents a threat to the children’s safety. As
discussed above, not only was the evidence of domestic abuse weak, HCJFS failed to
prove that domestic abuse was an ongoing concern or that it was likely to recur.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} Regarding neglect, the caseworkers and GAL testified that they were
concerned that if the children were returned to the parents, they would rely on S.D.
to care for the other children. Mother testified that she never left S.D. alone to watch
R.D. despite clear evidence to the contrary. Father initially testified that he had no
idea why the children were removed, only to later testify that the children were
removed because he and mother had made a mistake and left S.D. home alone.
{¶70} However, mother testified that if the children were returned to her and
father, she would not use S.D. to supervise the other children. She testified that she
would stay home to care for the children, and that she has family to help her—her
father, siblings, uncles, and cousins. Both parents insisted that they would take S.D.
to her medical appointments and ensure that she received treatment.
{¶71} Regarding S.D.’s education, the parents denied not sending S.D. to
school despite the fact that she had missed ten of 19 school days by September 14,
2016. Mother testified that she did not understand what an IEP was or what services
S.D. was receiving as a result. Nevertheless, while failure to send a child to school
may very well threaten the child’s growth and well-being, it does not present a
“threat to the child’s safety.” See R.C. 2151.414(E)(15). Furthermore, both parents
testified that education was important and that they would ensure that S.D. went to
school, and Francesconi admitted at trial that both parents responded
“appropriately” when asked about the children’s schooling.
{¶72} The parents’ testimony was somewhat inconsistent, but there was little
evidence presented to support the court’s finding that neglect was likely to recur, or
that it would threaten the children’s safety. “A decision based on clear and
convincing evidence requires overwhelming facts, not the mere calculation of future
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OHIO FIRST DISTRICT COURT OF APPEALS
probabilities.” In re Williams, 11th Dist. Geauga Nos. 2003-G-2498 and 2003-G-
2499, 2003-Ohio-3550, ¶ 45. The court’s finding that the R.C. 2151.414(E)(15)
condition was satisfied was not based upon clear-and-convincing evidence.
{¶73} With none of the conditions in R.C. 2151.414(E) satisfied, the court
erred in holding that the children could not be placed with the parents within a
reasonable time and should not be placed with the parents. The 12-in-22 condition
was satisfied as to S.D., R.D., and J.D., but not M.D. Thus, we do not reach the best-
interest prong of the permanent-custody test regarding M.D., but we must continue
our analysis for S.D., R.D., and J.D.
The Second Prong—R.C. 2151.414(d)(1) best-interest analysis
{¶74} Under the second prong, the juvenile court must determine whether
granting permanent custody to HCJFS is in the best interest of the children. R.C.
2151.414(B)(1). Pursuant to R.C. 2151.414(D)(1), the court may find that permanent
custody is in the best interest of the children upon consideration of all relevant
factors, including:
(a) the children’s relationships with the parents, siblings, foster caregivers, and
any other person who may significantly affect the children,
(b) the wishes of the children, with consideration granted for their maturity,
(c) the custodial history of the children, including whether the children have
been in the custody of a public child services agency for 12 or more months in a
consecutive 22 month period,
(d) the children’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent custody to
HCJFS, and
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OHIO FIRST DISTRICT COURT OF APPEALS
(e) whether any of the factors in divisions (E)(7) to (11) apply in relation to the
parents and children.
{¶75} No single factor is given greater weight or heightened significance. In
re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 35.
{¶76} The magistrate held that the R.C. 2151.414(D)(1)(a) factor favored
returning the children to the parents due to the positive nature of the children’s
interactions with the parents during visitations. The juvenile court found that the
children were bonded with each other, with the foster family, and with their parents.
But, it disagreed with the magistrate, and held that the R.C. 2151.414(D)(1)(a) factor
favored granting permanent custody to HCJFS.
{¶77} The HCJFS caseworkers and Pederson testified that all of the children
are doing well in the foster home and are bonded to the foster family. S.D.’s
therapist Morgan Roberts testified that S.D. described her foster family as her family.
Pederson testified that when S.D. was removed from the home, she was behind
developmentally and academically and had trouble communicating her wants and
needs. She testified that since being placed with the foster family, S.D. has become
more outgoing and energetic, is engaged in many activities, and is bonded with the
foster family. The foster mother testified that S.D. would appear sad and irritable
before and after visits with parents. She also testified that R.D. has become much
more talkative and playful than when he first came into the foster home.
{¶78} It is important to note that father speaks some English, but mother
does not speak any English. The children are in an English-speaking foster home,
and although the parents have taught R.D. and J.D. some Spanish, they do not have
the ability to communicate effectively with the parents in Spanish. The longer S.D.
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OHIO FIRST DISTRICT COURT OF APPEALS
has been in the foster home, the less she has wanted to speak Spanish with her
parents, and her ability to speak and understand Spanish has degraded. Interpreters
were present at all visitations in order to facilitate communication between the
parents and the children. In spite of the language barrier, the FNC visitation notes
describe many instances of loving interaction between the parents and the children.
{¶79} There is a strong bond between the parents and the children, and
there is a strong bond between the foster family and the children. With the evidence
cutting both ways, the R.C. 2151.414(D)(1)(a) factor does not weigh heavily in favor of
either side.
{¶80} Under R.C. 2151.414(D)(1)(b), the juvenile court found that S.D.
wished to remain with the foster family, and that the three younger children were too
young to express their wishes. Pederson and Roberts testified that S.D. wished to
stay with the foster family and be adopted by them. However, there is evidence in
the record that as of April 2017, S.D. wanted to live with her parents. The longer she
remained in the foster home, the more she wanted to permanently remain with the
foster family. We must also remember that S.D. was only 11 years old at the time of
trial. We agree with the magistrate and the juvenile court that the evidence showed
that the children are bonded and it is in their best interest to keep them together.
Therefore, to the extent that S.D.’s wish to remain with the foster family contradicts
what is in the best interest of the remaining children, the importance of keeping the
children together is paramount.
{¶81} As discussed above, the 12-in-22 condition is satisfied as to S.D., R.D.,
and J.D. Also, the children have been in their current foster home since March 2017.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶82} Under R.C. 2151.414(D)(1)(d), the court considered whether a legally
secure permanent placement could be achieved without granting permanent custody
to HCJFS. A legally secure permanent placement “is more than a house with four
walls. Rather, it generally encompasses a stable environment where a child will live
in safety with one or more dependable adults who will provide for the child’s needs.”
In re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 42,
quoting Matter of K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 87 (4th Dist.2018).
{¶83} The magistrate held that a legally secure permanent placement could
be achieved by returning the children to the parents. The magistrate found,
Parents [sic] situation appears to be different from 2016: parents have
complied with court orders, and mother does not work, so there will be
proper supervision, and father has completed extensive anger
management and domestic violence awareness, even though there was no
proof at Trial of any physical or verbal altercations between parents.
{¶84} The juvenile court disagreed. It found that the parents do not
understand the needs of the children, do not have the ability to supervise the
children appropriately, and never provided HCJFS with proof of stable income or
housing.
{¶85} The court’s concerns regarding stable housing stem from the parents’
failure to provide HCJFS with a copy of the lease agreement for the apartment they
live in, and a visit to the apartment by Pederson in May 2018, during which the
electricity was shut off and mother had to go around to the back of the building to
retrieve the keys in order to enter. Pederson testified that she did not inquire as to
why the keys were behind the building, and that father told her that the electricity
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OHIO FIRST DISTRICT COURT OF APPEALS
was shut off due to construction in the building. Regardless, Francesconi visited the
home three times in the three months leading up to trial and testified that the
housing was stable and appropriate. It is clear from her testimony that the parents’
housing, whatever its condition in May 2018, is now appropriate.
{¶86} The caseworkers testified that they repeatedly asked the parents for a
copy of the lease and verification of father’s income, but never received anything
despite father reassuring them multiple times that he would acquire the requested
documents. Pederson testified that father also refused to give her any information
about his income. Mother was charged with theft in May 2019, but there are no
details in the record concerning this charge, and mother indicated that the case has
been resolved. Francesconi testified that although she was never able to verify
father’s income, the parents never asked HCJFS for help financially, and she did not
have concerns about the parents’ ability to provide financially for the children.
{¶87} When asked about the lease, father testified that he and mother had
been living in their current apartment for over a year, and that he had not provided
HCJFS with a copy of the lease because he had not had a chance to pick it up from
the landlord. Regarding income, he testified that he had asked his employer for
documents verifying his employment, but the employer refused to provide them.
{¶88} Although the parents may have failed to adequately explain their
repeated failures to provide HCJFS with a copy of the lease agreement, failure to
provide a lease agreement cannot alone justify the court’s finding that the parents
lacked stable housing, especially not when father testified that they had been living in
the same apartment for over a year prior to trial, and Francesconi testified that the
parents’ housing at the time of trial was appropriate. Also, despite father’s erratic
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OHIO FIRST DISTRICT COURT OF APPEALS
work schedule, HCJFS has not shown that the parents cannot financially provide for
the children. A lack of financial support was not cited as one of the reasons the
children were initially removed from the home. The parents brought food to every
visitation, they have maintained stable housing, and they have acquired furniture
and clothing in preparation for the children’s return.
{¶89} The juvenile court’s findings that the parents do not have stable
housing or income are not supported by clear-and-convincing evidence. Also, as
discussed above under the sections concerning R.C. 2151.414(E)(1) and (15), there
was not clear-and-convincing evidence presented to support the court’s findings that
the parents do not understand the needs of the children and do not have the ability
to properly supervise them. Therefore, the juvenile court’s finding that the parents
cannot provide a legally secure permanent placement was not supported by clear-
and-convincing evidence.
{¶90} R.C. 2151.414(D)(1)(e) directs us to R.C. 2151.414(E)(7)-(11) to
determine if any of those conditions apply. In its best-interest analysis, the juvenile
court stated that none of the R.C. 2151.414(E)(7)-(11) factors apply, contrary to its
finding a few pages earlier that the condition in R.C. 2151.414(E)(8) was satisfied.
Regardless, as discussed above, there was not clear-and-convincing evidence
presented to support the court’s finding that the condition in R.C. 2151.414(E)(8) was
satisfied.
{¶91} The court’s holding that granting permanent custody to HCJFS was in
the best interest of the children was not supported by clear-and-convincing evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶92} This is an extremely difficult case. Termination of parental rights is an
alternative of last resort and is only justified when it is necessary for the welfare of
the children. The juvenile court’s decision to permanently terminate the parents’
parental rights boiled down to their failure to consistently acknowledge why the
children were taken away, failure to communicate effectively with HCJFS, failure to
articulate what they learned in their classes to the satisfaction of the court, and their
inconsistent attendance at visitations. Mother and father are not perfect parents.
But, it is clear from the record that although they made mistakes in raising their two
oldest children, they love and care for their children and strive to be better parents.
As explained above, after a thorough review of the record, we hold that HCJFS did
not present clear-and-convincing evidence in support of its motion for permanent
custody. We further hold that the juvenile court’s judgment was not supported by
sufficient evidence and was against the manifest weight of the evidence.
{¶93} Mother’s and father’s assignments of error are sustained. The
judgment of the juvenile court is reversed and the cause is remanded with
instructions to the juvenile court to issue a judgment entry adopting the magistrate’s
decision awarding legal custody of the children to their parents with protective
supervision of M.D. by HCJFS.
Judgment reversed and cause remanded.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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