In re C.P. ( 2021 )

[Cite as In re C.P., 2021-Ohio-4504.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: C.P. and G.P. :
:
: Appellate Case Nos. 29209 and 29210
:
: Trial Court Case Nos.
: F-2013-005274-0K, 0L, 0O and
: F-2019-002065-0F, 0G, 0J
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
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OPINION
Rendered on the 22nd day of December, 2021.
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MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470 and J.
JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorneys, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, Dayton, Ohio 45422
Attorneys for Appellee, Montgomery County Children Services
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Dayton, Ohio
45422
Attorney for Appellant, Father
P.J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
Attorney for Appellant, Mother
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TUCKER, P.J.
-2-
{¶ 1} The Montgomery County Court of Common Pleas, Juvenile Division, granted
permanent custody of Mother and Father's two minor children, C.P. and G.P., to
Montgomery County Children Services (“MCCS”). Both parents appeal, arguing that the
court’s decision was not supported by the evidence. After reviewing the record, we
disagree, and we affirm the trial court's judgments.
I. Factual and Procedural History
{¶ 2} Mother and Father are an unmarried couple who appear to have lived
together on and off for a number of years. In May 2013, when Mother gave birth to C.P.,
both Mother and C.P. tested positive for opiates. MCCS filed a complaint alleging C.P.
to be abused and dependent. Following an adjudication finding that C.P. was abused
and dependent, she was placed in the legal custody of Father. On January 3, 2019,
following a law enforcement removal, C.P. was placed in the temporary custody of MCCS.
C.P. is severely autistic and has limited verbalization ability.
{¶ 3} Mother gave birth to G.P. on March 13, 2019. The birth took place in a home
in Dayton. After giving birth, Mother tied the umbilical cord with a shoe lace and called
911. Mother and G.P. were transported by ambulance to Miami Valley Hospital, where
the child tested positive for drugs. G.P. weighed only three pounds and her body
temperature was dangerously low. G.P. required two days of medical intervention in
order to stabilize her temperature. She remained hospitalized until she reached the
approximate gestational age of 35 weeks and no longer required supplemental oxygen.
Mother left the hospital against medical advice on the day of the birth. G.P. was
discharged from the hospital on April 23, 2019 and was placed in the temporary custody
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of MCCS. MCCS filed a dependency and abuse complaint. G.P. was adjudicated
abused and dependent on November 1, 2019, and the court ordered her to remain in the
temporary custody of MCCS.
{¶ 4} On October 21, 2020, MCCS filed a motion for permanent custody of both
children. A hearing was conducted on June 10, 2021.
{¶ 5} At the hearing, the guardian ad litem (GAL) testified that he was appointed
to the case in May 2020. From the time of his appointment until the hearing, the GAL
had not been able to contact Mother and, thus, had not seen her with the children. The
GAL testified he had visited Father’s home four times, with the most recent visit being on
May 28, 2021, approximately two weeks prior to the hearing. According to the GAL,
Father’s home was cluttered and had cords and wires lying loose around the house. The
GAL also testified that the floors were loose and chipped in numerous places and that
carpet strip tacks were exposed in some places. There was no mattress for the bed
Father planned to use for C.P. The GAL testified that Father would not permit him to
view the entire home. The GAL testified that, despite receiving instructions about how
to make the home safe for the children, Father had made no progress in doing so.
{¶ 6} The GAL testified that Father had made threats of violence against the
prosecutor, the magistrate originally assigned to the case, and the staff at MCCS
throughout the course of the proceedings. He testified that Father had not completed
treatment for his mental health issues. Further, Father continued to have contact with
Mother despite her continued substance abuse.
{¶ 7} The GAL further testified that, during visitations, he had observed Father
speak inappropriately to the children and threaten them with corporal punishment. The
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GAL heard Father tell C.P. he wanted to, but could not, “beat” her “a**” while in the
presence of the GAL and a caseworker. The GAL also testified that he had observed
Father dragging C.P. by the arm during visitations. The GAL testified that the children
were “familiar” with Father, but not bonded to him. Tr. p. 31. The children were doing
well in foster care and were bonded to the foster family. The GAL recommended that
the court award permanent custody to MCCS.
{¶ 8} Beth Pfoutz also testified at the hearing. Pfoutz had been the caseworker
for the family since December 2018. According to Pfoutz, Father’s case plan required
him to do the following: (1) maintain clean, safe housing; (2) not allow drug use or have
drug paraphernalia at the house; (3) consistently exercise visitation; (4) attend parenting
classes; (5) undergo a psychiatric evaluation and follow all recommendations stemming
therefrom; (6) refrain from verbal aggression and threats; and (7) sign releases for
information. Pfoutz testified she made all referrals necessary for completion of the case
plan.
{¶ 9} Pfoutz corroborated the GAL’s testimony regarding Father’s failure to
maintain safe housing. Pfoutz testified that the house was dirty, cluttered, and not safe
for small children. For instance, she testified that she observed a mirrored closet door
that was propped up against a wall. She also testified there were cords and wires
exposed in the home.
{¶ 10} Pfoutz testified that Father had not completed the psychiatric treatment
requirements because he was terminated from a treatment program when he could not
be contacted to schedule appointments. Pfoutz also testified that Father was not able to
self-regulate and got angry and made threats of physical violence. According to Pfoutz,
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Father conducted on-line research regarding all the people working on this case, including
the magistrate originally assigned to the case. Father made threats toward the
magistrate and her children and asked Pfoutz how she thought “certain individuals would
act if he put a gun in their child’s mouth and pulled the trigger.” Tr. p. 117. Thereafter,
the magistrate was removed from the case for her safety. Pfoutz also testified that
Father was trespassed from Miami Valley Hospital due to his behavior during G.P.’s
hospitalization. He also had been trespassed from Dayton Children’s Hospital due to
unacceptable behavior when C.P. underwent surgery to insert tubes into her ears. 1
Finally, he was trespassed from MCCS premises after making threatening statements
toward staff.
{¶ 11} According to Pfoutz, two adults died from drug overdoses while in Father’s
home, and Mother used drugs while living in that home. Pfoutz testified that despite the
requirement he not permit drug use in the home, Father continued to have a relationship
with Mother. We note that Father testified at the hearing that he would not allow Mother
into the home, but his testimony appeared to admit that he had not actively barred her
from the home as of the date of the hearing.
{¶ 12} Pfoutz testified that Father had been consistent in attending visitation and
that he had attended parenting classes. However, Father continued to act
inappropriately in the presence of the children. According to Pfoutz, Father got frustrated
when C.P., who, as noted, is severely autistic, did not mind him or acted out, and the
more frustrated or angry Father became, the more C.P. acted out. The record supported
1 Father informed the caseworker that he would have the tubes removed when C.P. was
returned to his custody.
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a finding that Father hit C.P. during a visitation, although he disputed this. Additionally,
Pfoutz testified that she had heard Father ask C.P. why she was having a “retard fit?”
Tr. p. 114. She further had heard Father intimate to the children that he was going to
cause the people involved with the case to die. Pfoutz testified that she observed C.P.
refer to the foster mother as “mom” during a visitation, and she then overheard Father
state to C.P., “I’m gonna have to whoop [your] a** for weeks when you get home to break
you of these behaviors.” Pfoutz testified that Father continued to engage in this type of
behavior despite being advised it was not acceptable.
{¶ 13} Further, although not a part of the case plan, Pfoutz testified that Father had
no source of income. She testified that he informed her that he was employed by two
federal agencies, but she had been unable to verify this claim. Father also claimed to
own a food truck, but the truck was not registered and was not then being used.
{¶ 14} Finally, Pfoutz testified that she thought Father and the children were
bonded. However, she also testified that the children were doing very well in their foster
home and the foster parents were willing to adopt them.
{¶ 15} Father also testified at the hearing. He stated he had cleaned the house
and that he planned to carpet the girls’ bedroom and get a mattress for C.P. He further
testified that he was preparing the food truck for use in order to generate an income.
{¶ 16} Father testified that he was “aggravated” and “mad” that C.P. had had
surgery to place tubes in her ears and that she had been taken to the dentist. Father
stated that, if C.P. were returned to him, he planned to take her to a “marijuana doctor”
because he had read that marijuana oil would help her to verbalize. He further stated
that after he sued everyone involved in taking his children out of his home, he would have
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C.P. privately tutored at home. He then stated he was going to purchase a home in
Canada.
{¶ 17} On cross-examination, Father admitted the water in his home had recently
been shut off, but he claimed it had been turned back on. Father also denied having a
criminal history. When confronted with a question regarding a conviction for aggravated
menacing, he admitted the conviction but opined that he did not do anything wrong.
Father further admitted that he had been required to undergo a psychiatric evaluation as
part of his probation for the criminal case, but he intimated he did not cooperate because
he thought the evaluator was “sticking her nose in where it didn’t belong.” Tr. p. 201.
Father also claimed he was shot in Afghanistan during the 1980s when he was “looking
for Bin Laden.” Tr. p. 202. Finally, Father admitted his stepson and Mother’s sister had
both died in his home by overdosing on drugs.
{¶ 18} Following the hearing, the juvenile court awarded permanent custody of
both children to MCCS. Both Mother and Father appeal.
II. Analysis
{¶ 19} Although stated differently in their separate assignments of error, both
Mother and Father assert that the juvenile court’s decision awarding permanent custody
to MCCS was not supported by the record.
{¶ 20} R.C. 2151.414(B)(1) sets forth a two-part test to be used when deciding
motions seeking an award of permanent custody to a public services agency. This
statute requires courts “to find, by clear and convincing evidence, that: (1) granting
permanent custody of the child to the agency is in the best interest of the child; and (2)
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either the child (a) cannot be placed with either parent within a reasonable period of time
or should not be placed with either parent if any one of the factors in R.C. 2151.414(E)
are present; (b) is abandoned; (c) is orphaned and no relatives are able to take permanent
custody of the child; or (d) has been in the temporary custody of one or more public or
private children services agencies for twelve or more months of a consecutive twenty-two
month period.” In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing
In re K.M., 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8.
{¶ 21} There is no dispute the children were in the custody of MCCS for 12 or more
months of a consecutive 22-month period. As a result, the only issue before us is
whether awarding permanent custody to MCCS was in the best interest of the children.
In this regard, “R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (1) the
interaction and interrelationship of the child with the child's parents, relatives, foster
parents and any other person who may significantly affect the child; (2) the wishes of the
child; (3) 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;
(4) 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; and (5)
whether any of the factors in R.C. 2151.414(E)(7) through (11) are applicable.” S.J. at ¶
15.
{¶ 22} We begin by noting that Mother did not seek custody of the children and
does not assert on appeal that the court erred by terminating her parental rights. Instead,
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Mother’s entire appeal is directed to her claim that the court should have granted custody
to Father. Thus, we will not address the juvenile court’s best interest findings as they
pertain to Mother except to note that the record supports a finding that Mother continued
to use drugs, had failed to comply with her case plan, and had no interaction or
relationship with the children. Indeed, the record supports the juvenile court’s finding
that Mother had abandoned the children. R.C. 2151.414(E)(10) and R.C. 2151.011(C).
{¶ 23} The evidence in the record supported findings that Father loved the children
and had consistently exercised his visitation with them. However, both the GAL and the
caseworker expressed concerns regarding Father’s behavior and interactions with the
children during visitation. The GAL testified that the children were not bonded to Father.
While the caseworker testified that the children appeared to be bonded with him, she
qualified her statement by noting that G.P. appeared comfortable around Father, but C.P.
did not like to be around him when he yelled. Indeed, the caseworker testified that C.P.
would cover her ears and try to comfort herself when Father shouted. The caseworker
noted that Father’s poor behavior often caused C.P. to act out, which, in turn, caused
Father to become more agitated. Both the caseworker and the GAL testified that the
children were bonded with the foster family and were doing well in that setting. The foster
parents were meeting C.P.’s special needs as well as her medical needs.
{¶ 24} The wishes of the children were not ascertainable. C.P. was unable to
adequately relate her wishes due to her autism and inability to verbalize. G.P., who was
only two at the time of the dispositional hearing, was too young to express her wishes.
The GAL made a recommendation that MCCS be awarded permanent custody of the
children.
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{¶ 25} At the time of the dispositional hearing, the children had been residing with
the foster family for more than two years. Neither child returned to Father’s home or had
overnight visitation with him during that time. Thus, as stated above, the children had
been in the temporary custody of MCCS for 12 or more months out of a consecutive 22-
month period.
{¶ 26} The court found that the children were in need of a legally secure
placement. Although Father wished to be reunified with the children and had completed
some of his case plan, the court found “multiple barriers to reunification exist.”
Specifically, the court found that Father’s home was not suitable for the children and that
Father had failed to remedy the issues with the house despite having more than a year
to do so. The court further found Father’s interactions with the children to be
problematic. The court also called into question Father’s medical choices regarding C.P.
The court found Father’s failure to complete mental health treatment troubling, given his
inability to control his behavior around the children and his use of threats toward others.
Based upon these findings, the court concluded a legally secure placement could only be
achieved by a grant of permanent custody to MCCS.
{¶ 27} A juvenile court's decision to terminate parental rights and to grant
permanent custody to a children services agency must be supported by clear and
convincing evidence. In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14.
“Clear and convincing evidence is that measure or degree of proof which is more than a
mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
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Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. We
apply an abuse-of-discretion standard, and we will not disturb a permanent custody
decision “if the record contains competent, credible evidence by which the court could
have formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established.” (Citation omitted.) Id. The phrase
“abuse of discretion” implies a decision that is unreasonable, arbitrary, or unconscionable.
In re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-5697, ¶ 7.
{¶ 28} After a review of the record in this case, we cannot say the juvenile court
abused its discretion. The record contains competent and credible evidence supporting
the court’s finding that the interests of the children are best served by awarding permanent
custody to MCCS. Accordingly, Mother’s and Father’s assignments of error are
overruled.
III. Conclusion
{¶ 29} The judgments of the juvenile court are affirmed.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
J. Joshua Rizzo
Robert Alan Brenner
P.J. Conboy, II
John C. Meehling
Michael Porter
Hon. Helen C. Wallace