In re E.H. ( 2021 )

[Cite as In re E.H., 2021-Ohio-2740.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: : Hon. W. Scott Gwin, P.J.
E.H. and : Hon. William B. Hoffman, J.
C.H. : Hon. Patricia A. Delaney, J.
:
:
: Case No. 2021CA00017
: 2021CA00018
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
Nos. 2019JCV01180 & 2019JCV01181
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 9, 2021
APPEARANCES:
For - Appellee For - Appellant
JAMES B. PHILLIPS TY GRAHAM
STARK COUNTY JFS 4450 Belden Village Street N.W.
300 Market Avenue North Suite 703
Canton, OH 44702 Canton, OH 44718
Stark County, Case No. 2021CA00017&2021CA00018 2
Gwin, P.J.,
{¶1} Appellant-father [“Father”] appeals the January 20, 2021 Judgment Entry of
the Stark County Court of Common Pleas, Juvenile Court Division, which terminated his
parental rights with respect to his minor children, E.H.1 (b. Sept. 6, 2018) and C.H. (b.
June 17, 2019) and granted permanent custody of the children to appellee, Stark County
Department of Jobs and Family Services (hereinafter “SCJFS”).
Facts and Procedural History
{¶2} SCJFS had been working with the family since August of 2019 on a non-
court basis to try and prevent the removal of the children. On November 25, 2019, SCJFS
filed a complaint alleging the dependency and/or neglect of E.H. and C.H. Appellant is the
biological father of E.H .and C.H. On November 25, 2019, the trial court found probable
cause existed for SCJFS to be involved and placed the child into emergency temporary
custody with SCJFS. An adjudicatory and disposition hearing was held February 11,
2020 and the court placed the children in the temporary custody of SCJFS. The court
approved and adopted the case plan that had been filed.
{¶3} Father filed a motion to change legal custody on March 24, 2020, which
contained an ex-parte order that was mistakenly signed by the trial court. The trial court
vacated that order on March 26, 2020.
{¶4} At a dispositional review hearing that took place on May 22, 2020, the trial
court indicated there were compelling reasons to preclude a request for permanent
custody to the SCDFJS.
1 See, OH ST Supp. R. 44(H) and 45(D) concerning the use of names of juveniles.
Stark County, Case No. 2021CA00017&2021CA00018 3
{¶5} On July 8, 2020, Father filed a Motion to Change Legal Custody of the
children. A hearing was scheduled for August 13, 2020.
{¶6} On August 13, 2020, the SCDJFS filed Motions for Permanent Custody of
both children, and a trial was set for November 2, 2020.
{¶7} On October 21, 2020, Father’s attorney filed a motion to withdraw as his
counsel.
{¶8} On October 23, 2020, the trial court reviewed the case. The case plan review
packet was approved and adopted. The trial court found that SCJFS had made
reasonable efforts to finalize the permanency planning in effect, and maintained the
status quo. The court also found that no compelling reasons existed to preclude a request
for Permanent Custody to SCJFS.
{¶9} On October 23, 2020, Father’s counsel filed an amended motion to
withdraw as counsel and also asked the Court to appoint new counsel for Father. On
October 28, the Court permitted counsel to withdraw. The trial court appointed counsel
to represent Father.
{¶10} Father’s new trial counsel filed a motion to extend temporary custody and a
motion to grant legal custody of the children to a third party on January 6, 2021.
{¶11} Permanent custody proceedings began on January 14, 2021.
Permanent Custody Trial
{¶12} Caseworker Paige Horn testified that the children were originally placed in
the temporary custody of the SCJFS on November 22, 2019 and had remained in the
continuous temporary custody of the SCJFS since that date.2 Caseworker Horn testified
2 The motion for permanent custody was filed on August 13, 2020. Thus from November 22, 2019
to and including August 13, 2020 is a period of 265 days. Before a public children-services agency or private
Stark County, Case No. 2021CA00017&2021CA00018 4
that the mother had disclosed that Father was very abusive. T. at 11. Both mother and
Father had domestic violence charges against them in the past. T. at 12.
{¶13} The case plan requested that Father complete a drug and alcohol
assessment through CommQuest, a parenting evaluation through Melymbrosia, maintain
safe and stable housing and maintain steady employment. Father completed the initial
CommQuest assessment in December of 2019 and was recommended to engage in group
treatment. Father was contacted multiple times but never completed the group treatment. Father
was discharged unsuccessfully from the program in March 2020.
{¶14} Father has refused to submit to drug screens during the pendency of this
case and refused to sign a release of information from CommQuest for any drug screen
information. Father completed the parenting assessment through Melymbrosia, which
recommended that he participate in domestic violence treatment or a domestic violence
evaluation. Father has not completed either one of those recommendations.
{¶15} Caseworker Horn testified that Father’s demeanor was agitated, frustrated
and attempting to intimate her. T. at 15. Concerns of threats were also present in her
dealing with Father. Id.{¶16} Father did not complete his visits at the onset of the case. During the start
of COVID-19 restrictions, Father was offered virtual visits and missed 10 of these visits.
Father missed all but one of the virtual visits. T. at 15. Father further failed to appear for
most in-person visits with the children. At father's last visit, father got extremely frustrated
child-placing agency can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the
child must have been in the temporary custody of an agency for at least 12 months of a consecutive 22–
month period.” In re: C.W., 104 Ohio St.3d 163, 2004–Ohio–6411, 818 N.E.2d 1176 at paragraph one of
the syllabus. When calculating this period, the court in C.W. cautioned, “the time that passes between the
filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12–
month period set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004–Ohio–6411 at ¶ 26, 818 N.E.2d at 1180.
Accord, In re: N.C., 5th Dist. No. 2011-CA-00141, 2011-Ohio-6113, ¶32.
Stark County, Case No. 2021CA00017&2021CA00018 5
with the children crying and tried to end the visit. The caseworker talked him through it
and he continued the visitation.
{¶17} Caseworker Horn testified that Father would not benefit from an extension
of time to attempt to complete his case plan because there was nothing to indicate that
he intended to complete his case plan requirements. T. at 18.
{¶18} Caseworker Horn testified she was informed in January 2020, that A.C. and
S.C. were interested in accepting placement of both of the children. The couple are related to
Father by marriage. The couple served as baby-sitters for E.H. while the parents attended to
C.H. during his birth and hospitalization. They have never met C.H.
{¶19} The caseworker testified that A.C. informed the caseworker that they had
been told by Father that he was being denied any visitation or contact with the children
or any attempt to reunify. According to the caseworker, A.C. was unaware of the extent
of C.H.'s disabilities and was concerned that since C.H. is not day-care eligible, she could
not care for him. The caseworker further testified that A.C. was also concerned that if
given legal custody, Father would attempt to regain the children physically by force or
intimidation. A.C. told the worker that if the children were safe and stable, she did not
want to disrupt the children. Since February, 2020, the couple have not reached out to
the worker to pursue placement.
{¶20} A.C. and S.C. testified during the permanent custody hearing. The couple
reside in Canton, Stark County, Ohio, They have two children of their own and a
comfortable four-bedroom home with a bath and one half. In preparation for the children,
they have acquired a crib and toddler bed. A.C. testified that they are financially able to
assume custody and believes that they are "quite capable" of caring for these children.
Stark County, Case No. 2021CA00017&2021CA00018 6
She testified that they have cared for S.C.’s mother who had cancer and required oxygen
treatment. She testified that all she knows about C.H.'s condition is that he is on oxygen.
{¶21} The couple completed background checks in January 2020. While they
have never met C.H., they have baby-sat for E.H. and had no problems caring for her.
The couple’s two children are anxious to have the children join the family. The couple
have only met the children's mother once but they testified that they would follow any
court directives regarding allowing access to the biological parents. They ceased contact
with the caseworker when the ex parte order was vacated, but testified that they are
"absolutely interested" in assuming custody of these children.
{¶22} Caseworker Horn testified E.H. is involved with physical therapy due to her
motor delay and she was recently fitted for AFO articulated custom braces for her feet.
She struggles, she is able to walk, she is able to get around and she is active. But she is
consistently falling down so she was fitted for the braces. She does have podiatry
appointments related to the braces and her walking. She has Help Me Grow involvement
and also has general well child doctor visits. She does not have any significant medical
concerns. She does not have any long-term diagnoses. T. at 29.
{¶23} C.H. was born at 25 weeks. He weighed 1.7 pounds when he was born. His
list of diagnoses consists of extreme prematurity, infant apnea, congenial hypothyroidism,
retinopathy of prematurity, chronic lung disease, and dysphasia, dependent. He is
dependent on supplement oxygen. Respiratory insufficiency, spasticity, cerebral palsy
and he further has left, middle cranial fossa arachnoid cyst. T. at 29-30. He has a team
of fifteen doctors, and in-home nurses that come once a week. C.H. requires
supplemental oxygen. C.H. needs someone watching him sleep, checking his breathing,
Stark County, Case No. 2021CA00017&2021CA00018 7
checking under his eyes for distress to see if the oxygen needs to be put back on. T. 30-
31.
{¶24} The children’s current caregiver is specially trained to care for C.H.'s needs
and has raised her own child who suffered from Cerebral Palsy.
{¶25} The GAL presented a written report to the Court and recommended that
permanent custody be granted to the SCDJFS.
{¶26} Father did not appear for the permanent custody hearing.
{¶27} On January 20, 2012, the trial court issued its findings of fact granting
permanent custody of the children to SCDJFS and terminating the parental rights of
Father. Specifically, the trial court found that, despite reasonable efforts by SCDJFS, the
children could not and should not be placed with Father within a reasonable amount of
time, and the grant of permanent custody was in the child's best interest.
Assignments of Error
{¶28} Father raises two Assignments of Error,
{¶29} “I. THE TRIAL COURT'S JUDGMENT THAT E.H. AND C.H. CANNOT BE
PLACED WITH APPELLANT WITHIN A REASONABLE PERIOD OF TIME WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶30} II. THE TRIAL COURT'S JUDGMENT THAT THE BEST INTERESTS OF
THE MINOR CHILDREN WOULD BE SERVED BY GRANTING PERMANENT
CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICENCY OF THE
EVIDENCE.”
Stark County, Case No. 2021CA00017&2021CA00018 8
Law and analysis
Standard of Appellate Review
{¶31} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's
rights has been described as, “* * * the family law equivalent to the death penalty in a
criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id. An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1).
{¶32} The Ohio Supreme Court has delineated our standard of review as follows,
“clear and convincing evidence” is “[t]he measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986). In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118(1954), the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
Stark County, Case No. 2021CA00017&2021CA00018 9
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added). A court of appeals will affirm the trial court's
findings “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.” In re Adkins, 5th Dist. Nos.
2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.
Requirements for Permanent Custody Awards
{¶33} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶34} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
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(a) The child is not abandoned or orphaned, has not 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 has not 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 if, 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, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) 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.
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{¶35} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
1. Parental Placement within a Reasonable Time–R.C. 2151.414(B)(1)(a).
{¶36} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed with
the parents. R.C. 2151 .414(E). The statute also indicates that if the court makes a
finding under R.C. 2151.414(E)(1)-(15), the court shall determine the children cannot or
should not be placed with the parent. A trial court may base its decision that a child
cannot be placed with a parent within a reasonable time or should not be placed with a
parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of
one factor alone will support a finding that the child cannot be placed with the parent
within a reasonable time. See In re William S., 75 Ohio St.3d 95, 1996–Ohio–182, 661
N.E.2d 738; In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998);
In re Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991).
{¶37} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining
whether a child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents. Specifically, Section (E) provides, in pertinent part,
as follows:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
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Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child’s
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
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 changing parental conduct to allow them to resume and
maintain parental duties.
***
(16) Any other factor the court considers relevant.
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{¶38} As set forth above, the trial court’s findings are based upon competent
credible evidence. The record includes the recommendation of the guardian ad litem for
the child, and the testimony of the witnesses at trial. The trial court was in the best position
to determine the credibility of the witnesses.
{¶39} Testimony established that both children have significant medical needs
that Father has never addressed. Father missed visitation and made no effort to learn
how to care for the medical needs of his children. Father refused to provide medical
information releases, refused drug screening, domestic violence counseling, and refused
to cooperate with the caseworker. Father did little if anything to work toward reunification
with his children. Father has refused to disclose or discuss his living arrangements and
whether he is gainfully employed. Father did not appear for the permanent custody
hearing. There is nothing in the record of this case that suggest Father would suddenly
begin to work toward completing his case plan if he were given additional time.
{¶40} In the case of In re: Summerfield, 5th Dist. Stark No. 2005CA00139, 2005-
Ohio-5523, this court found where, despite marginal compliance with some aspects of the
case plan, the exact problems that led to the initial removal remained in existence, a court
does not err in finding the child cannot be placed with the parent within a reasonable time.
{¶41} Based upon the foregoing, as well as the entire record in this case, the court
properly found E.H. and C.H. could not or should not be returned to Father within a
reasonable time. Despite offering numerous services, Father was unable or unwilling to
mitigate the concerns that led to the children’s removal.
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2. The Best Interest of the Children
{¶42} R.C. 2151.414(D) requires the trial court to consider all relevant
factors in determining whether the child’s best interests would be served by
granting the permanent custody motion. These factors include but are not limited
to: (1) the interrelationship of the child with others; (2) the wishes of the child; (3)
the custodial history of the child; (4) the child’s need for a legally secure placement
and whether such a placement can be achieved without permanent custody; and
(5) whether any of the factors in divisions (E)(7) to (11) apply. No one element is
given greater weight or heightened significance. In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816. R.C. 2151.414(D)(1) does not require a juvenile
court to make specific findings regarding each best-interest factor listed in R.C.
2151.414(D)(1) or to include in its decision or judgment entry a written discussion
of each of those factors. In re: A.M., Slip Opinion No. 2020-Ohio-5102,
2020WL6439610 (Nov. 3, 2020). ¶33.
{¶43} A child’s best interests are served by the child being placed in a
permanent situation that fosters growth, stability, and security. The willingness of
a relative to care for the child does not alter what a court considers in determining
permanent custody. In re Patterson, 134 Ohio App.3d 119, 730 N.E.2d 439 (9th
Dist. 1999); In re Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055(1991). Accordingly, a court is not required to favor a relative if, after considering
all the factors, it is in the child’s best interest for the agency to be granted
permanent custody. In re R.P. and I.S., 5th Dist. Tuscarawas No. 2011AP050024,
2011-Ohio-5378.
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{¶44} We have frequently noted, “[t]he discretion which the juvenile court enjoys
in determining whether an order of permanent custody is in the best interest of a child
should be accorded the utmost respect, given the nature of the proceeding and the impact
the court’s determination will have on the lives of the parties concerned.” In re Mauzy
Children, 5th Dist. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re
Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).
{¶45} In the present case, the trial court's decision indicates it considered the best
interest factors. The trial court concluded the children's need for legally secure placement
could not be achieved without awarding permanent custody to SCDJFS. Upon review of
the record, the record supports the trial court's finding that granting the motion for
permanent custody is in the children’s best interest.
{¶46} E.H. and C.H. are placed in third party kinship care. They have been with
the same family since their removal from their parents on November 22, 2019. During
much of this placement they were cared for by a couple. Unfortunately, one of those
parties passed away during the placement. The other party has continued to care for the
children and is assisted by her adult children. The caregiver has an appropriate home.
There are no hazards in the home for the children and the caregiver has all of the
necessary medical equipment and medical training needed to care for the children's
needs.
{¶47} The trial court found, and the record supports that A.C. and S.C. are not fully
informed about the extent of the physical care required by the children and they are unprepared
for that level of need. The couple have not discussed potential placement with the caseworker
Stark County, Case No. 2021CA00017&2021CA00018 16
since February, 2020. Their contact with E.H. was very limited; they have not seen her during
the pendency of this case. They have never met C.H.
{¶48} The GAL presented a written report to the trial court that recommended
permanent custody be granted to the SCDJFS.
{¶49} Father did not appear for the hearing.
Conclusion
{¶50} For these reasons, we find that the trial court’s determination that Father
had failed to remedy the issues that caused the initial removal and therefore the children
could not be placed with him within a reasonable time or should not be placed with him
was based upon competent credible evidence and is not against the manifest weight or
sufficiency of the evidence. We further find that the trial court’s decision that permanent
custody to SCDJFS was in the children’s best interest was based upon competent,
credible evidence and is not against the manifest weight or sufficiency of the evidence.
Stark County, Case No. 2021CA00017&2021CA00018 17
{¶51} Because the evidence in the record supports the trial court’s judgment, we
overrule Appellant-Father’s two assignments of error, and affirm the decision of the Stark
County Court of Common Pleas, Juvenile Court Division.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur