In re E.S. ( 2021 )

[Cite as In re E.S., 2021-Ohio-955.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: :
No. 20AP-194
(E.S.) et al., : (C.P.C. No. 17JU-000057)
(D.S., : (REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on March 25, 2021
On brief: Yeura Venters, Public Defender, and Robert D.
Essex, for appellant.
On brief: Robert McClaren, for Franklin County Children
Services.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations and Juvenile Branch
LUPER SCHUSTER, J.
{¶ 1} Appellant, D.S. ("father"), appeals from a decision and judgment entry of the
Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile
Branch, terminating his parental rights and placing E.S. and D.S. in the permanent custody
of appellee, Franklin County Children Services ("FCCS"). For the following reasons, we
affirm.
I. Facts and Procedural History
{¶ 2} This case involves FCCS's request for permanent custody of E.S., born
February 8, 2005, and D.S., born May 30, 2008. On January 4, 2017, FCCS filed a
complaint alleging E.S. and D.S. to be neglected and dependent children. FCCS filed the
complaint after receiving information that L.S., the children's mother, had been a heavy
drug user for years, abusing crack, prescription pills, and heroin. The complaint stated that
No. 20AP-194 2
mother would sell her food stamps to obtain drugs and would not provide any food at home
for the children, leaving the children to go hungry. FCCS received reports that the children
were often playing in the neighborhood unsupervised. Additionally, it was reported to
FCCS that the children's home was "deplorable," noting that dirty dishes, dirty clothing,
dog feces, and trash covered the floors. (Jan. 4, 2017 Compl. at 1.) The complaint stated
that FCCS had been involved with the family on a voluntary protective services basis since
July 2016 and that mother has not been completing the drug screens required as part of
that involvement. The family also prohibited the FCCS caseworker from observing the
upstairs of the home, informing FCCS that a relative was renting the rooms upstairs.
Though mother and father are married, father's whereabouts were unknown at the time
FCCS filed its complaint.
{¶ 3} On January 11, 2017, following a preliminary hearing, the trial court granted
a temporary order of custody ("TOC") to FCCS. The trial court ordered mother to undergo
an alcohol and drug assessment, complete random drug screens, participate in a drug
treatment program, and follow the recommendations of the assessment visits with FCCS.
Subsequently, at a February 15, 2017 hearing, the parties proceeded uncontested as to the
dependency cause of action and the trial court dismissed the neglect cause of action. The
trial court adjudicated the children dependent and converted the TOC to an order of
temporary court custody ("TCC") to FCCS. Subsequently, the trial court approved and
adopted a case plan for both mother and father.
{¶ 4} Prior to the scheduled annual review hearing, FCCS filed a motion on
December 7, 2017 requesting that permanent court custody ("PCC") of E.S. and D.S. be
granted to FCCS. Pursuant to the PCC motion, FCCS alleged, under R.C. 2151.414(B)(1)(a),
that the children could not be placed with either mother or father within a reasonable time
or should not be placed with mother or father. Additionally, FCCS alleged in the motion
that mother and father had failed to substantially remedy the conditions that led to the
children's removal. After several continuances, FCCS filed an updated motion for PCC
additionally alleging, pursuant to R.C. 2151.413(D)(1), that E.S. and D.S. had been in the
temporary custody of FCCS for 12 or more months of a consecutive 22-month period.
{¶ 5} On October 28, 2019, the guardian ad litem for E.S. and D.S. filed a report
detailing her work with the children. Ultimately, the guardian ad litem recommended that
No. 20AP-194 3
it was in the best interest of the children to grant the motion for PCC and place the children
in the permanent custody of FCCS.
{¶ 6} Following several more continuances, the trial court conducted a trial on the
motion for PCC on November 4, 2019. Father did not contest the granting of the PCC
motion as to E.S. but did contest the granting of the PCC motion as to D.S. Mother did not
participate in the trial. At the time of the trial, E.S. was 14 years old and D.S. was 11 years
old.
{¶ 7} During the trial, father testified as if on cross-examination that he has been
married to mother since 2007. Father acknowledged he had a court ordered case plan that
required him to complete drug screens, but he testified that he stopped completing those
drug screens when FCCS stopped providing him bus passes. Additionally, father agreed
that he stopped calling in for his drug screens in June 2017, which would not have required
transportation, missing more than 600 call-ins. Father denied having any positive drug
test results, denied having a drinking problem, and denied being an alcoholic. However,
father agreed that he had not obtained alcohol or drug treatment or any alcohol or drug
assessment since the case was opened.
{¶ 8} When asked why the children were placed in FCCS's custody, father blamed
mother and testified that he was not involved in that decision because he was not living
with mother even though the two are still married. Though father disagreed that the
children were removed because of drug and alcohol concerns, father agreed that mother is
addicted to heroin and that her drug abuse interfered with her ability to care for the
children. Father indicated a general lack of knowledge of where his children were living or
the conditions of their living situation at the time the children were placed in FCCS's
custody. Father testified he had recently moved into new housing "a couple days" prior to
the trial, testifying his new residence had three bedrooms and thus plenty of space for D.S.
should he be returned to father's care. (Nov. 4, 2019 Tr. at 42.) However, father was unable
to provide an address of his housing, stating he did not remember where he moved.
{¶ 9} Alejandria Scott, the FCCS caseworker assigned to the case, testified that
mother admitted to using heroin and fentanyl. The caseworker testified she had the
opportunity to observe father's residence, a one-bedroom apartment, as part of her
involvement in the case, but she testified she was not aware of father's recently obtained
No. 20AP-194 4
new housing. The caseworker described father's apartment as "severely crowded" with
clutter, leaving no space for anyone to actually stay inside. (Tr. at 51.) When the caseworker
talked to father about the expectations of the case plan, including him completing an
alcohol and drug assessment, completing urine screens, parenting classes, and a mental
health assessment, the caseworker testified that father told her he was not going to "do any
of those things because he had adult children that he raised." (Tr. at 52.)
{¶ 10} The caseworker testified that the children have been in the custody of FCCS
since January 2017 and are currently placed together in treatment foster care. Mother had
not made any progress on any of her case plan objectives at the time of trial and her drug
abuse was ongoing. Mother told the caseworker that she stays with father "on and off." (Tr.
at 58.)
{¶ 11} Further, the caseworker testified that father had not made any progress on
the drug screens or alcohol and other drug assessment portions of his case plan. While the
caseworker has monthly contact with father, the caseworker testified that father would
repeatedly inform her that would not be completing any of the required case plan activities
because he has adult children. The caseworker said father would attend his scheduled visits
with D.S. but that D.S. was not particularly engaged in the visits. The caseworker also
testified that FCCS provided both father and mother with bus passes but stopped providing
those passes when father and mother stopped completing any of their case plan activities.
{¶ 12} The caseworker testified she provided drug referral paperwork and
information to father. Additionally, the caseworker said father did not provide her with
verified income but instead directed her to get paystubs from his attorney. The caseworker
also stated father did not maintain consistent telephone contact with her and has failed to
keep his telephone number up-to-date with FCCS. Father's biggest barrier to reunification
with D.S., pursuant to the caseworker's testimony, was his lack of effort toward completing
the case plan activities. The caseworker testified that the issues requiring FCCS to get
involved in January 2017 had not been resolved.
{¶ 13} In describing D.S.'s placement in his foster home, the caseworker testified
that D.S. has special needs including behavioral issues and an individualized education plan
at school to help manage his ADHD. The caseworker testified E.S. and D.S. as bonded "[t]o
No. 20AP-194 5
an extent," but she said there is "a lack of bond" between father and D.S. (Tr. at 66, 67.)
Occasionally, the caseworker noted, D.S. would end the hour-long visits with father early.
{¶ 14} Usherala Johnson, the guardian ad litem for E.S. and D.S., testified that the
children are able to articulate their wishes. E.S. has consistently expressed a desire to be
adopted, telling the guardian ad litem that she does not believe father loves her and she
does not believe mother can take care of her. The guardian ad litem testified that D.S. has
consistently expressed a desire to stay in his current foster placement if he were not able to
return to father's care. Though D.S. previously was opposed to the idea of adoption, the
guardian ad litem testified that just prior to trial he began expressing an interest in adoption
if it were with his current foster parent. The guardian ad litem testified that D.S. has
consistently expressed a desire to continue to be able to visit with father even if the court
were to grant the motion for PCC, though D.S. understands that he may not be able to visit
with father if father's parental rights are terminated.
{¶ 15} The guardian ad litem testified that mother never had much engagement in
the case. Additionally, the guardian ad litem testified that father's residence was "not
appropriate * * * for anyone to sleep in" because it was too cluttered and without room for
a person to safely sleep. (Tr. at 108.) She testified father indicated that he planned to clean
out his apartment to make it habitable and that she specifically instructed him that he
would need to contact the FCCS caseworker to schedule a new walk-through, but father did
not do so prior to the trial. The guardian ad litem testified she was not aware that father
had moved from that one-bedroom apartment.
{¶ 16} Ultimately, the guardian ad litem testified it was her recommendation that it
was in the best interest of both E.S. and D.S. for the trial court to grant the motion for PCC
and place the children in the permanent custody of FCCS. Specifically as to D.S., the
guardian ad litem testified that she did not believe D.S. could return to father's care without
protective services in place but D.S. had already been in placement for two years and ten
months. The guardian ad litem described D.S. as being "somewhat bonded" with father.
(Tr. at 122.) The guardian ad litem noted father had not demonstrated an ability to
maintain suitable housing and has not been compliant with the drug and alcohol portions
of his case plan. The guardian ad litem described father as exhibiting a lack of motivation
to accomplish whatever would need to be done in order to have D.S. returned to his care.
No. 20AP-194 6
{¶ 17} Father also testified on direct examination, stating he and mother had been
separated for the past seven years, and he denied that mother has lived with him or
temporarily stayed with him since they separated. Father testified he had maintained the
same job since 2005. Though father admitted to occasionally consuming alcohol, he denied
that he drank alcohol every night. Additionally, father stated he recently moved into new
housing so D.S. would have more space. On cross-examination, however, father stated he
had not yet moved into the new housing but that he hoped to be able to soon, indicating
that he still lived in the one-bedroom apartment that the guardian ad litem had deemed
unsuitable. Father testified he did not notify the FCCS caseworker or the guardian ad litem
that he had moved because there was a period of time where he did not have a telephone.
He also denied knowledge of the case plan.
{¶ 18} The trial court conducted an in-camera interview with D.S. during which D.S.
stated that he wanted to return to his parents' care, but if he could not do that, his
preference was to stay in his current foster placement and continue to be able to visit with
mother and father. D.S. stated he did not want to be adopted. D.S. also told the trial court
that mother and father still live together.
{¶ 19} Following the trial, the trial court granted FCCS's motion for permanent
custody of both E.S. and D.S. and terminated the parental rights of mother and father. The
trial court considered the factors in R.C. 2151.414(D) and determined there was clear and
convincing evidence that it was in E.S.'s and D.S.'s best interest to grant the motion for
permanent custody. The trial court journalized its decision in a March 24, 2020 decision
and judgment entry. Father timely appeals the grant of the PCC motion with respect to D.S.
only.
II. Assignment of Error
{¶ 20} Appellant assigns the following error for our review:
The trial court committed reversible error by terminating the
appellant-father's parental rights when the decision was
against the manifest weight of the evidence.
No. 20AP-194 7
III. Analysis
{¶ 21} In his sole assignment of error, father argues the trial court erred in granting
permanent custody of D.S. to FCCS. More specifically, father asserts the decision to grant
the motion for PCC was against the manifest weight of the evidence.
{¶ 22} "In reviewing a judgment granting permanent custody to FCCS, an appellate
court 'must make every reasonable presumption in favor of the judgment and the trial
court's findings of facts.' " In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8,
quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. " '[I]f the evidence is
susceptible of more than one construction, we must give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court's
verdict and judgment.' " In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59,
quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
{¶ 23} "Judgments are not against the manifest weight of the evidence when all
material elements are supported by competent, credible evidence." J.T. at ¶ 8. "Pursuant
to R.C. 2151.414(B)(1), a trial court may grant permanent custody if after a hearing it
determines, by clear and convincing evidence, that * * * such relief is in the best interest of
the child." Id. at ¶ 9. "Clear and convincing evidence is that degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the facts to be
established." In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 14. "It is more than a
mere preponderance of the evidence but does not require proof beyond a reasonable
doubt." Id.{¶ 24} "Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014-
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of
Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re
Murray, 52 Ohio St.3d 155, 157 (1990). However, these rights are not absolute, and a
parent's natural rights are subject to the ultimate welfare of the child. In re Cunningham,
59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate
the parental rights of natural parents when such termination is in the best interest of the
child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8.
No. 20AP-194 8
{¶ 25} In deciding to award permanent custody, the trial court must take a two-step
approach. K.L. at ¶ 18. The court must first determine if any of the factors set forth in R.C.
2151.414(B)(1) apply. Id. Here, there is no dispute that D.S. was 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, satisfying R.C. 2151.414(B)(1)(d).
{¶ 26} Once the trial court determines that one of the circumstances in R.C.
2151.414(B)(1) applies, the trial court must then determine whether a grant of permanent
custody is in the best interest of the child. In re A.J., 10th Dist. No. 13AP-864, 2014-Ohio-
2734, ¶ 16; R.C. 2151.414(B)(1). In determining the best interest of a child, R.C.
2151.414(D)(1) directs that the trial court must consider all relevant factors including, but
not limited to, the following:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period, or the child has been in the temporary custody of one
or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in
another state;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a) through (e).
No. 20AP-194 9
{¶ 27} The trial court considered all of the above statutory factors with respect to
D.S. and concluded that an award of permanent custody was in the best interest of the child.
Father disagrees with the trial court's conclusions.
{¶ 28} Father's argument is not a challenge to any specific finding of the trial court
under R.C. 2151.414(D)(1). Instead, much of father's argument represents an assertion that
it was not his fault that the children were placed in FCCS's custody in the first instance. He
blames mother for the conditions leading to the children's removal, and he asserts his
general noncompliance with the case plan was not relevant to whether it was in D.S.'s best
interest to be reunited with father. Even if this court were to construe father's cooperation
with the visitation portion of his case plan and his consistently expressed desire to have
D.S. returned to his care as some measure of substantial compliance with the case plan, we
are mindful that " 'R.C. 2151.414(D) does not require courts to deny a children services
agency's motion for permanent custody solely by virtue of a parent's substantial compliance
with the case plan.' " In re S.T., 10th Dist. No. 19AP-24, 2019-Ohio-4341, ¶ 26, quoting In
re Brooks at ¶ 62. Thus, it was within the discretion of the trial court, as part of its best
interest analysis, to decide the weight to give evidence of father's compliance with the case
plan. As set forth below, the evidence at trial supported the trial court's determination that
granting permanent custody to FCCS was in D.S.'s best interest.
{¶ 29} Under R.C. 2151.414(D)(1)(a), the trial court must, in making its best interest
determination, consider the interactions and relationships between the child and the
individuals in the child's life, including the child's parents, siblings, relatives, and "any other
person who may significantly affect the child." Here, the trial court relied on the testimony
of the caseworker to find that the visits between D.S. and father were superficial with
minimal engagement. The trial court also found that D.S. is loyal and devoted to father
and that E.S. and D.S. are bonded toward each other. Although father argues the trial court
should have placed a greater emphasis on other testimony about his relationship with D.S.,
the evidence nonetheless supported these findings, including the testimony of the
caseworker and the guardian ad litem.
{¶ 30} Next, R.C. 2151.414(D)(1)(b) required the trial court to consider the wishes of
the child. The trial court noted that D.S. expressed during his in-camera interview a desire
to be reunited with mother and father if possible and he did not wish to be adopted. The
No. 20AP-194 10
trial court also noted the guardian ad litem's recommendation, even in light of D.S.'s
expressed desires, that permanent custody to FCCS was in D.S.'s best interest.
{¶ 31} R.C. 2151.414(D)(1)(c) then requires the court to consider the custodial
history of the child. D.S. had been continuously in the custody of FCCS for a total of 33
months.
{¶ 32} R.C. 2151.414(D)(1)(d) addresses the child's need for a legally secure
placement and requires the court to consider whether this can be achieved without a grant
of permanent custody to the agency. The trial court concluded that of father's five case plan
objectives, the only objective he completed was the weekly visits with D.S. Despite having
two years to substantially complete his case plan, father repeatedly told the caseworker he
did not need to complete those objectives because he had already raised other adult
children. Father completed only 68 of the possible 242 drug screens, 60 of which were
positive for alcohol, marijuana, and/or abnormal creatine levels, and he had not completed
any random drug screens in the 11 months immediately preceding the trial. Although father
testified that he was separated from mother, the trial court relied on D.S.'s testimony from
the in-camera interview to conclude that father and mother still live together and that
mother, despite her ongoing drug abuse that led to the children's removal, has ready access
to father's home. Thus, the trial court concluded father had not shown an ability to protect
D.S. from harm or exposure to drug abuse.
{¶ 33} Additionally, the trial court found that the only housing that father had made
available to survey by FCCS was not appropriate safe and stable housing, and both the
caseworker and the guardian ad litem testified father's apartment was not suitable for
habitation by D.S. or anyone. While father testified he had secured new housing just days
before trial, he did not inform the caseworker, the guardian ad litem, or D.S.'s attorney of
this new housing, and he was unable to provide any specific information about where the
housing was located or when it might be ready for D.S. to live in it. Father demonstrated a
lack of understanding of D.S.'s basic needs. All of this evidence, as well as the evidence
regarding D.S.'s behavioral issues and educational needs, supports the trial court's finding
that D.S. was in great need of a legally secure permanent placement to continue his physical,
educational, emotional, and social development and that such a legally secure permanent
placement could not be achieved without a grant of permanent custody to FCCS.
No. 20AP-194 11
{¶ 34} Finally, R.C. 2151.414(D)(1)(e) requires the court to consider any applicable
factors set forth in R.C. 2151.414(E)(7) through (11). The trial court noted there was clear
and convincing evidence that father had another child committed to the permanent custody
of FCCS, and father does not dispute that finding.
{¶ 35} Here, the record demonstrates the trial court thoroughly reviewed and
weighed the evidence in relation to all factors relevant to determining whether granting
permanent custody to FCCS was in D.S.'s best interest. Having reviewed the record, we
find competent, credible evidence supported the trial court's determinations as to each of
those factors and its ultimate conclusion that granting the motion for permanent custody
to FCCS was in the child's best interest. Thus, because the trial court's decision to grant the
motion for permanent custody and terminate father's parental rights was not against the
manifest weight of the evidence, we overrule father's sole assignment of error.
IV. Disposition
{¶ 36} Based on the foregoing reasons, the trial court's decision granting the motion
for permanent custody was not against the manifest weight of the evidence. Having
overruled father's sole assignment of error, we affirm the judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations and Juvenile Branch.
Judgment affirmed.
BROWN and BROGAN, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).