In re H.H. , 2022 Ohio 3575 ( 2022 )

[Cite as In re H.H., 2022-Ohio-3575.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
:
IN THE MATTER OF: :
: Appellate Case No. 2022-CA-30
H.H., C.G., N.G. :
: Trial Court Case Nos. 20190712 &
: 20190713
:
: (Appeal from Common Pleas
: Court – Juvenile Division)
:
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OPINION
Rendered on the 7th day of October, 2022.
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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee, CCDJFS
TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
Ohio 45402
Attorney for Defendant-Appellant, Father
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DONOVAN, J.
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{¶ 1} Defendant-appellant “Father” appeals from a judgment of the Clark County
Court of Common Pleas, Domestic Relations Division, which terminated his parental
rights to minor children H.H., C.G., and N.G. and awarded permanent custody of the
children to Clark County Department of Job and Family Services (CCDJFS). Father filed
a timely notice of appeal on April 28, 2022.1
{¶ 2} On September 5, 2019, CCDJFS filed a complaint and request for shelter
care alleging that H.H., C.G., N.G., and E.W. were dependent children. The complaint
also alleged that the four children were removed from the home of Mother and Father
because of deplorable living conditions, neglect, and allegations of sexual and physical
abuse. Notably, Father was thereafter charged with and pled guilty to child
endangerment.
{¶ 3} Mother is the biological mother of H.H., C.G., N.G., and E.W. Father is the
biological father of C.G. and N.G., and he is stepfather to H.H. and E.W. 2 On October
15, 2019, a guardian ad litem (GAL) was appointed by the trial court to represent the best
interests of the children. On October 17, 2019, CCDJFS filed a case plan for Mother and
Father to eventually be reunited with the children.
{¶ 4} After the GAL filed an initial report on November 1, 2019, the trial court
awarded temporary legal custody of the children to CCDJFS. Mother and Father were
granted supervised visits with the children. At the time of the hearings in this matter,
H.H. was 13 years of age with no developmental delays; C.G. was seven years old and
1 Mother’s parental rights were also terminated, but she did not appeal from the trial
court’s judgment.
2 E.W. is not involved in this case due to sexual abuse allegations made against him.
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completely non-verbal with multiple physical and intellectual delays; and N.G. was four
years old with some developmental delays.
{¶ 5} On July 21, 2020, Father filed a “Petition for Legal Custody” of the children.
On July 31, 2020, CCDJFS filed a motion for an extension of temporary legal custody of
the children. On September 16, 2020, a magistrate issued a decision extending
temporary custody of the children to CCDJFS. On October 26, 2021, legal custody of
H.H. was awarded to Mother and Father. On December 15, 2021, both C.G. and N.G.
were returned to the custody of Mother and Father pursuant to a one-year protective order
of supervision issued by the magistrate.
{¶ 6} On May 18, 2021, the GAL filed a motion requesting that emergency custody
of the children be granted to CCDJFS because there were concerns that Mother had
inappropriately exposed H.H. to adult men on the internet. The GAL was also concerned
about Mother’s and Father’s parenting abilities and their abilities to meet the medical and
educational needs of the children. On May 19, 2021, the magistrate ordered Mother to
vacate the family residence and only have supervised contact with the children thereafter.
Interim custody of the children was awarded to Father.
{¶ 7} On August 5, 2021, CCDJFS filed a motion requesting that legal custody of
the children be awarded to Father. One day later, the GAL filed an emergency motion
requesting that interim temporary custody of the children be awarded to CCDJFS. The
magistrate granted the GAL’s motion on August 12, 2021, and awarded temporary
custody of the children to CCDJFS. On August 16, 2021, Father filed a motion
requesting legal custody of the children. On August 19, 2021, CCDJFS filed a motion
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requesting permanent custody of all three children. On September 13, 2021, CCDJFS
filed a motion to terminate visitation between Father and the children. The magistrate
granted CCDJFS’s motion to terminate visitation on September 15, 2021.
{¶ 8} Evidentiary hearings were held before the trial court on December 20, 2021;
February 18 and 22, 2022; and March 9, 2022.
{¶ 9} Leslie Vasquez, a CCDJFS caseworker for the children, testified that she
observed problems with Father’s parenting ability throughout the pendency of the case.
Specifically, Vasquez described Father as an “obstructionist” who refused to follow the
suggestions of the parent aide who was present in the home to make observations and
offer advice. 12/20/21 Tr. 28. Vasquez testified that the yard at the residence was often
overgrown and filled with trash and other equipment; she testified that the yard was
eventually cleared, but she would periodically observe trash and empty soda cans in the
driveway. Vasquez also testified that while the living conditions inside the residence
were not “deplorable,” it was “oftentimes cluttered, somewhat dirty.” Id. at 33.
{¶ 10} Vasquez testified that Father believed that none of the children required
specialized medical care and/or therapy. Specifically, Vasquez testified that Father was
entirely unsupportive regarding C.G.’s speech therapy needs and his use of a special
device to aid in the therapy. Vasquez testified that on several occasions, C.G. would fail
to bring his speech therapy device to his appointments, and Mother and Father would
misplace the device at home. Father informed Vasquez that he “did not see a lot of
value” in the device despite being told on multiple occasions that C.G. needed the device
to aid in his speech therapy. Id. at 50.
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{¶ 11} Additionally, Kayla Welling, C.G.’s speech therapist throughout the case,
testified that when C.G. was under Father’s exclusive care from June 2021 to August
2021, C.G.’s speech therapy device was simply “missing for a good chunk of time.”
2/22/22 Tr. 113. Welling testified that Father had not been engaged and receptive during
C.G.’s speech therapy appointments and had not been helpful when it came to C.G.’s
learning how to use the speech device. Welling testified that Father had informed her
that he did not believe the device was necessary. Welling unequivocally testified,
however, that the device was medically necessary to treat C.G.’s speech problems.
Welling also testified that C.G.’s attendance at the therapy appointments had been
“spotty” and that he had appeared disheveled and dirty on several occasions. Id. at 102.
Welling testified that, at time of the hearing, C.G. was still unable to speak. Father also
did not follow specific dietary recommendations in regard to C.G. to ensure that the child
grew properly and gained weight. Because of his significant developmental delays, C.G.
still wore a diaper at the time of the hearings and would most likely never be able to speak
properly, if at all.
{¶ 12} Evidence was also adduced that Father had difficulty providing the children
with adequate transportation. Specifically, Vasquez testified that Mother and Father did
not attempt to rectify the transportation situation until it was discovered that H.H.’s grades
at school had dropped dramatically. Mother was eventually able to get her driver’s
license, but Father refused to put her on his car insurance plan until the trial court ordered
him to do so. Father also did not attend couples counseling or conflict resolution classes.
{¶ 13} Sierra Errett, another CCDJFS caseworker, testified that the agency was
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concerned that Father had not been able to maintain stable employment and care for the
children at the same time. Father was not employed during the summer of 2021
because, while he was working, he was unable to provide daycare for the children and/or
transport them to their various appointments. Furthermore, Vasquez testified that H.H.
had only sporadically attended her counseling sessions and had not been provided with
her psychiatric medication until Vasquez told Mother and Father that they had to provide
for H.H.’s medical needs in that regard. By his own admission, Father failed to prevent
H.H. from having access to her cellphone even after the trial court had ordered him to
limit her access to technology.
{¶ 14} Vasquez testified that, although N.G. was determined to obtain speech
therapy, the child had been dropped from the program due to nonattendance because
neither Mother nor Father was able to provide reliable transportation. While Father was
the main provider of transportation for the children, he failed in this regard when he was
working. Vasquez testified that CCDJFS attempted to provide Father and the children
with transportation and gas cards, but Father still struggled to transport the children to
their appointments.
{¶ 15} Errett testified that Father also had a hostile relationship with the children’s
foster parents. Errett testified that the foster parents had reported Father’s following
them in his vehicle after visitation with the children. Furthermore, Father had called the
police and reported that the children were being abused by the foster parents without any
evidence to support his allegations.
{¶ 16} In light of the evidence adduced at the hearings, the trial court found that
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Father was unable to meet the basic needs of the children, terminated his parental rights,
and granted CCDJFS’s motion for permanent custody of H.H., C.G., and N.G.
{¶ 17} Father now appeals.
{¶ 18} Father’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO CLARK COUNTY DEPARTMENT OF JOB AND FAMILY
SERVICES.
{¶ 19} Father contends that the trial court erred when it terminated his parental
rights and granted CCDJFS’s motion for permanent custody of H.H., C.G., and N.G.
Specifically, Father argues that CCDJFS “failed to prove by clear and convincing
evidence that it was in the children’s best interests to be placed in the permanent custody
of CCDJFS.” Appellant’s Brief, p. 8.
{¶ 20} The United States Supreme Court has described the interest of parents in
the care, custody, and control of their children as “perhaps the oldest of the fundamental
liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct.
2054, 147 L.Ed.2d 49 (2000). The Ohio Supreme Court has recognized that “there is an
essential and basic civil right to conceive and raise children.” In re K.H., 119 Ohio St.3d
538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 39. However, “[t]he fundamental interest of
parents is not absolute.” In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829,
¶ 11. “The state has broad authority to intervene to protect children from abuse and
neglect.” State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas
Court, Probate Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 58
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(O'Connor, C.J., dissenting), citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28.
{¶ 21} The termination of parental rights is governed by R.C. 2151.414. R.C.
2151.414(B)(1) requires a court to determine, “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 certain other conditions apply.
Clear and convincing evidence has been defined as “ ‘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 fact “ ‘a firm belief or conviction as to the facts sought
to be established.’ ” In re K.H. at ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 22} A court's decision to terminate parental rights will not be overturned “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.” (Citations omitted.) In re A.U., 2d Dist. Montgomery No.
22264, 2008-Ohio-186, ¶ 15. “We review the trial court's judgment for an abuse of
discretion.” In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14, citing In re
C.F. at ¶ 48 (applying the abuse-of-discretion standard to the trial court's findings under
R.C. 2151.414).
{¶ 23} R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The statute
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requires the court 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) 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 12 or more months of a consecutive 22-month period. In
re L.W., 2d Dist. Montgomery No. 26243, 2014-Ohio-4507, ¶ 11, citing R.C.
2151.414(B)(1).
{¶ 24} R.C. 2151.414(D)(1) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (a) 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; (b) the wishes 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 12 or more months of a consecutive 22-month period; (d) the child's
need for a legally secure permanent placement and whether that type of placement can
be achieved without a grant of permanent custody to the agency; and (e) whether any of
the factors in R.C. 2151.414(E)(7) through (11) are applicable. “No one element is given
greater weight or heightened significance.” In re C.F. at ¶ 57.
{¶ 25} R.C. 2151.414(E) further provides in pertinent part:
(E) In determining at a hearing held pursuant to division (A) of this section
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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, * * * 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
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.
(2) Chronic mental illness, chronic emotional illness, intellectual disability,
physical disability, or chemical dependency of the parent that is so severe
that it makes the parent unable to provide an adequate permanent home
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for the child at the present time and, as anticipated, within one year after
the court holds the hearing pursuant to division (A) of this section or for the
purposes of division (A)(4) of section 2151.353 of the Revised Code;
(3) The parent committed any abuse as described in section 2151.031 of
the Revised Code against the child, caused the child to suffer any neglect
as described in section 2151.03 of the Revised Code, or allowed the child
to suffer any neglect as described in section 2151.03 of the Revised Code
between the date that the original complaint alleging abuse or neglect was
filed and the date of the filing of the motion for permanent custody;
(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;
***
(8) The parent has repeatedly withheld medical treatment or food from the
child when the parent has the means to provide the treatment or food, and,
in the case of withheld medical treatment, the parent withheld it for a
purpose other than to treat the physical or mental illness or defect of the
child by spiritual means through prayer alone in accordance with the tenets
of a recognized religious body.
***
(14) The parent for any reason is unwilling to provide food, clothing, shelter,
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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.
{¶ 26} It is undisputed that the children entered into the shelter care custody of
CCDJFS on September 5, 2019, and were adjudicated dependent on October 10, 2019.
On November 5, 2019, the children were placed in the temporary legal custody of
CCDJFS. The record establishes that H.H. was returned to the custody of Mother and
Father on October 26, 2020, and C.G. and N.G. were returned to the custody of their
parents on December 15, 2020. All of the children were again removed from their
parents’ custody on August 12, 2021, and placed in the temporary custody of CCDJFS,
where they remained until the trial court’s decision. Therefore, from the adjudication of
dependency through CCDJFS’s filing of its motion for permanent custody, H.H. was in
the temporary custody of CCDJFS for 12 of 22 months. C.G. and N.G. were in the
temporary custody of CCDJFS for approximately 14 of 22 months. Accordingly, the trial
court did not err when it found that the children had been in the custody of CCDJFS for
12 of 22 months as required pursuant to R.C. 2151.414(B)(1)(d).
{¶ 27} Father did comply with several of his case plan objectives: 1) he participated
in a drug and alcohol assessment; 2) he participated in “parenting psychological;” 3) he
completed a mental evaluation; 4) he maintained employment sporadically during the
pendency of the case; 5) he visited the children regularly when permitted; 6) he signed
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releases of information; 7) he maintained a residence for the children, although the house
was described as “dirty;” and 8) he submitted to a drug screen. As previously stated,
however, Father failed to attend couples counseling or conflict resolution classes. Father
also failed to prevent H.H. from having a cellphone in violation of the trial court’s order.
{¶ 28} Furthermore, Vasquez testified that she observed problems with Father’s
parenting ability throughout the case. Specifically, Vasquez described Father as an
“obstructionist” who refused to follow the suggestions of the parent aide who was present
in the home to make observations and offer advice. Vasquez also testified that Father
believed that none of the children required specialized medical care and/or therapy.
Specifically, Vasquez testified that Father was entirely unsupportive regarding C.G.’s
speech therapy needs and his use of a special device to aid in the therapy; on several
occasions, C.G. would fail to bring his speech therapy device to his appointments, and
Mother and Father would misplace the device at home. Father informed Vasquez that
he “did not see a lot of value” in the device despite being told on multiple occasions that
C.G. needed the device to aid in his speech therapy.
{¶ 29} Welling, C.G.’s speech therapist, testified that when C.G. was under
Father’s exclusive care in the summer of 2021, C.G.’s speech therapy device was simply
“missing for a good chunk of time.” Welling testified that Father was not engaged and
receptive during C.G.’s speech therapy appointments and was not helpful when it came
to C.G’s learning how to use the speech device. Welling testified that Father informed
her that he did not believe the device was necessary. Welling, however, testified that
the device was medically necessary to treat C.G.’s speech problems. Welling also
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testified that C.G.’s attendance at the therapy appointments was “spotty” and that he
appeared disheveled and dirty on several occasions. Father also failed to follow specific
dietary recommendations in regards to C.G. to ensure that the child grew properly and
gained weight.
{¶ 30} There was also evidence that Father had difficulty providing the children
with adequate transportation to school and appointments. Specifically, Vasquez testified
that Mother and Father did not attempt to rectify the lack of transportation to school until
it was discovered that H.H.’s grades at school had dropped dramatically. Mother was
eventually able to get her driver’s license, but Father refused to put her on his car
insurance plan until the trial court ordered him to do so. The record also establishes that
Father was not employed during the summer of 2021 because he was unable to provide
daycare for the children and/or transport them to their various appointments while he was
working. Furthermore, Vasquez testified that H.H. only sporadically attended her
counseling sessions and was not provided with her psychiatric medication until Vasquez
told Mother and Father that they had to provide for H.H.’s medical needs in that regard.
{¶ 31} Even though N.G. was found to require speech therapy, the child was
dropped from the program due to nonattendance because neither Mother nor Father were
able to provide reliable transportation. While Father was the main provider of
transportation for the children, he failed in this regard when he was working or otherwise
employed. Vasquez testified that CCDJFS attempted to provide Father and the children
with transportation and gas cards, but Father still struggled to transport the children to
their appointments.
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{¶ 32} Errett, another CCDJFS caseworker, testified that Father also had a hostile
relationship with the children’s foster parents. Errett testified that the foster parents
reported that Father had followed them in his vehicle after visitation with the children.
Furthermore, Father called the police and reported that the children were being abused
by the foster parents without any evidence to support his allegations.
{¶ 33} Conversely, the foster parents hoped to adopt all three children and would
welcome H.H.’s return to their care.3 The foster parents were meeting C.G. and N.G.’s
educational, medical, and emotional needs and following all of the recommendations
made by CCDJFS and the children’s therapists. The foster parents initiated services for
C.G. for his developmental disabilities, genetic testing for C.G., and counseling for N.G.
By all accounts, C.G. and N.G. were thriving under the care of their foster parents, and
there was no evidence that the children were being mistreated while in their custody.
{¶ 34} The record establishes that CCDJFS made every effort to reunite Father
with the children. Father's actions throughout these proceedings, however, established
that he was either unwilling or incapable of adequately caring for the specialized medical
and physical needs of the children, especially C.G., who will clearly require a high level
of care for the rest of his life. Notably, the GAL also recommended that CCDJFS be
awarded permanent custody. Accordingly, we find that the trial court did not err when it
found that clear and convincing evidence was adduced at the permanent custody
hearings which supported its decision to award permanent custody of the children to
CCDJFS and to terminate Father's parental rights.
3 At the time the trial court issued its decision granting CCDJFS permanent custody of
the children, H.H. was living in a separate foster home from her other two siblings.
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{¶ 35} Father’s sole assignment of error is overruled.
{¶ 36} Father’s assignment of error having been overruled, the judgment of the
trial court is affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Ian A. Richardson
Travis Kane
Dawn Garrett
Sara Barry
Hon. Katrine Lancaster