In re L.F. ( 2021 )

[Cite as In re L.F., 2021-Ohio-3431.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.F., JR. C.A. Nos. 29942
29954
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 19-04-000347
DECISION AND JOURNAL ENTRY
Dated: September 29, 2021
HENSAL, Presiding Judge.
{¶1} Appellants Mother and Father appeal the judgment of the Summit County Court
of Common Pleas, Juvenile Division, that terminated their parental rights and placed their child
in the permanent custody of Summit County Children Services Board (“CSB” or “the agency”).
This Court affirms.
I.
{¶2} Mother and Father are the biological parents of L.F. (d.o.b. 11/3/11). When the
child was seven years old, CSB filed a complaint alleging that he was an abused (endangered),
neglected, and dependent child. The agency’s supporting allegations included the child’s
exposure to domestic violence between Mother and Father, Mother’s use of methamphetamine
and marijuana, Mother’s untreated mental health issues, and housing instability. CSB obtained
an emergency order of temporary custody and a no contact order between Father and the child.
2
Both parents waived their hearing rights for shelter care and stipulated to probable cause for the
child’s removal from the home.
{¶3} At the adjudication, Mother and Father waived their rights to a hearing and
stipulated to the allegations in the complaint as amended to delete references to neglect. L.F.
was adjudicated an abused (endangered) and dependent child based on incidents of substance
abuse and domestic violence in the parents’ home. The juvenile court found that CSB had used
reasonable efforts to prevent the child’s removal from home.
{¶4} Mother waived her rights at the subsequent dispositional hearing, while Father
failed to appear. After the presentation of evidence, the trial court found that the agency had
used reasonable efforts, placed the child in the temporary custody of CSB, and adopted the
agency’s case plan as the order of the court. Pursuant to the case plan, Mother was required to
obtain and maintain stable housing and employment, and to obtain chemical dependency and
mental health assessments and follow all recommendations. Father was required to obtain a
chemical dependency assessment and follow all recommendations; and to attend Stop the Cycle
and Early Intervention classes offered through the Battered Women’s Shelter, participate in
anger and aggression counseling at Greenleaf, and demonstrate an understanding by refraining
from further acts of domestic violence. The child was required to participate in counseling based
on his exposure to domestic violence.
{¶5} The magistrate held three review hearings during the next seven months and
found after each that the agency had used reasonable efforts to prevent the child’s continued
removal from his home. L.F. remained in the temporary custody of CSB as the parents failed to
make much progress on their case plan objectives. The orders reflect that the child struggled
with significant behavioral issues and consistently refused to have any contact with Father.
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{¶6} After Father proposed his uncle and aunt as a placement option for the child, CSB
performed a kinship assessment and subsequently approved the paternal relatives for placement.
Based on the relatives’ willingness to provide a permanent home for L.F., CSB filed a motion for
legal custody to the paternal uncle and aunt under the agency’s protective supervision. After the
sunset dispositional hearing, the juvenile court granted the agency’s motion and further awarded
the parents supervised visitation to be determined by the parties. Within a month, however, the
uncle and aunt were no longer willing to provide a home for the child based on his escalating
destructive and violent behaviors. Accordingly, CSB filed a motion to modify disposition from
protective supervision to emergency temporary custody and temporary custody of the child.
After the requisite hearings, at which the juvenile court found that the agency had continued to
use reasonable efforts, L.F. was returned to the temporary custody of CSB.
{¶7} CSB later filed a motion for permanent custody. The agency alleged that L.F.
could not or should not be returned to his parents based on Mother’s and Father’s failures to
remedy the conditions that led to the child’s removal, Mother’s chemical dependency, Mother’s
lack of commitment to the child, and Mother’s abandonment of the child. CSB further alleged
that permanent custody was necessary in the best interest of the child.
{¶8} Prior to the permanent custody hearing, Mother orally requested legal custody or,
alternatively, a six-month extension of temporary custody. Father joined in Mother’s requests
and also alternatively proposed legal custody to himself. After the hearing, the juvenile court
issued a judgment terminating Mother’s and Father’s parental rights and granting permanent
custody of L.F. to CSB. The trial court found that the child could not or should not be returned
to either parent based on their respective failures to remedy the concerns that necessitated the
child’s removal from the home. It further found that an award of permanent custody was in the
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child’s best interest and that CSB had used reasonable reunification efforts that the parents had
failed to utilize.
{¶9} Mother and Father have each filed timely appeals. Mother raises one assignment
of error for review, while Father raises three. This Court rearranges and consolidates some
assignments of error to facilitate the discussion.
II.
FATHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT TERMINATED THE PARENTS’ RIGHTS AND PLACED THE
CHILD IN THE PERMANENT CUSTODY OF CSB WHEN THE AGENCY
DID NOT PROVIDE [FATHER] WITH REASONABLE REUNIFICATION
EFFORTS.
{¶10} Father argues that CSB failed to use reasonable efforts to facilitate reunification
of the child with Father. This Court disagrees.
{¶11} Revised Code Section 2151.419(A)(1) requires the juvenile court to determine
whether the agency has used reasonable reunification efforts at any hearing at which the court
removes the child from his home or continues the child’s removal from his home. It is well
settled that “the statute imposes no requirement for such a determination at the time of the
permanent custody hearing unless the agency has not established that reasonable efforts have
been made prior to that hearing.” (Internal quotations omitted.) In re L.R., 9th Dist. Summit
Nos. 29266 and 29271, 2019-Ohio-2305, ¶ 14, quoting In re A.C.-B., 9th Dist. Summit Nos.
28330 and 28349, 2017-Ohio-374, ¶ 22; see also In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,
¶ 41-43 (concluding that a reasonable efforts determination is necessary at a permanent custody
hearing only if the agency has not demonstrated its use of reasonable efforts prior to that time).
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{¶12} In this case, the juvenile court consistently found that CSB had used reasonable
efforts to prevent the child’s continued removal from his home. Beginning with the shelter care
hearing and continuing with adjudication, the initial disposition, multiple review hearings, and
upon the child’s subsequent removal from the home of his recently appointed legal custodians
(his paternal uncle and aunt), the trial court made the requisite statutory reasonable efforts
determinations. At no time did Father or any other party challenge those findings. In fact, when
Father appeared at the two earliest hearings, he stipulated that the agency had used reasonable
efforts.
{¶13} As Father failed to object or move to set aside any reasonable efforts
determinations by the juvenile court, he has forfeited any challenge to the agency’s use of
reasonable efforts on appeal except for a claim of plain error. See In re L.R. at ¶ 18. Although
Father references plain error in his captioned assignment of error, he fails to cite any legal
standard1 or make any argument to demonstrate plain error. Moreover, Father has not provided
any transcripts of the prior hearings after which the juvenile court consistently found CSB’s use
of reasonable efforts. Accordingly, this Court must presume regularity as to those reasonable
efforts determinations. See id.{¶14} To the extent that Father argues that CSB should have “implemented more
intensive counseling and more intensive services[,]” such as family counseling and additional
classroom services for the child, Father misconstrues the agency’s role. While the agency has a
duty pursuant to Section 2151.412(A)(2) and (G)(1)(b) to “prepare and maintain a case plan”
with the goal of reunifying the child with his parents, the agency identifies and makes referrals
1
Although Father writes that the plain error standard is the same as that set out in his first
assignment of error, his first assigned error also omits a standard of review for plain error.
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for services designed to address the concerns underlying the child’s removal from home. For
example, the agency may require mental health, parenting, chemical dependency, educational,
and the like, services and make referrals to other professionals who are competent to provide
such services. It is those professionals who develop the particulars of treatment and therapies.
Here, as will be addressed in greater detail later in the opinion, the child’s schools engaged in a
variety of ever increasing intensive measures to address the child’s ongoing behavioral issues. In
addition, the child was receiving counseling multiple times each week; and, based on the child’s
vehement refusals to have any relationship with Father, the counselor never recommended or
supported family counseling with Father and the child. CSB’s deferral to the professionals who
implement the services outlined in the agency’s case plan objectives for the parties is precisely
the point of referrals and cannot form the basis for a claim of lack of reasonable efforts. Father’s
second assignment of error is overruled.
FATHER’S ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PLAIN ERROR AND REVERSIBLE
ERROR WHEN IT DID NOT APPOINT AN ATTORNEY FOR THE CHILD
AFTER THE CHILD EXPRESSED TO HIS COUNSELOR THAT HE
DESIRED TO RESIDE WITH MOTHER.
{¶15} Father argues that the juvenile court erred by failing to appoint an attorney for
L.F. as his wishes conflicted with the recommendation of the guardian ad litem. This Court
disagrees.
{¶16} Section 2151.352 and Juvenile Rule 4(A) accord all parties in juvenile
proceedings, including the subject minor child, the right to representation by counsel. The
juvenile court may appoint an attorney to serve in the dual role of both attorney and guardian ad
litem for a child. See In re T.E., 9th Dist. Summit No. 22835, 2006-Ohio-254, ¶ 4. It did so in
this case.
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{¶17} Nevertheless, we note that “the Ohio Supreme Court [has] held that a child who is
the subject of a juvenile court proceeding to terminate parental rights may be entitled to
independent counsel where the child’s guardian ad litem recommends a disposition that conflicts
with the child’s wishes.” In re J.P.-M., 9th Dist. Summit Nos. 23694 and 23714, 2007-Ohio-
5412, ¶ 53, citing In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, syllabus and ¶ 18. In
determining whether to appoint independent counsel for a child, the juvenile court should
consider the particular circumstances of the case, including the child’s maturity and whether the
guardian ad litem can adequately represent the child. In re J.P.-M. at ¶ 53.
{¶18} Even so, it is well settled that “[w]here there is an affirmative demonstration of a
conflict between the views of the attorney guardian ad litem and the wishes of the child[ ], the
trial court is obligated to appoint independent legal counsel to represent the child[ ].” In re K.H.,
9th Dist. Summit No. 22765, 2005-Ohio-6323, ¶ 38. See also Juv.R. 4(C) (“If a person is
serving as Guardian ad litem for a child or ward, and the court finds a conflict exists between the
role of the Guardian ad litem and the interest or wishes of the child [or] the ward, the court shall
appoint counsel for the child or ward.”) This Court has clarified on many occasions, however,
that “to demonstrate a ‘conflict’ between the child’s wishes and the guardian’s recommendation
that permanent custody is in the child’s best interest, the record must demonstrate that the child
has repeatedly and consistently expressed the affirmative desire to return to the parent’s home.”
In re B.W., 9th Dist. Medina No. 12CA0016-M, 2012-Ohio-3416, ¶ 42, citing e.g., In re J.P.-M.
at ¶ 56, and In re J.B., 9th Dist. Summit No. 23436, 2007-Ohio- 620, ¶ 22-23.
{¶19} In this case, there was no evidence of the child’s purported desire to return to
Mother’s home until one of the child’s counselors testified at the permanent custody hearing that
L.F. had discussed Mother in “just a few” sessions and indicated without elaboration sometime
8
during the previous year that he wanted to go back with Mother. The guardian ad litem reported,
however, that throughout the entire case, L.F. was either unable or unwilling to express his
wishes regarding custody to her. In fact, the guardian ad litem testified that, even with the
intervention of the child’s therapist, L.F. told the guardian that he did not know where he wanted
to live. Several reports filed by the guardian ad litem throughout the case bear out the guardian’s
assertion that she was unable to ascertain the child’s wishes for custody, although the child
always remained adamant in his refusal to have any relationship with Father.
{¶20} L.F.’s isolated comments to his counselor that he liked Mother and wanted to go
back with her does not rise to the level of repeated and consistent expressions of the affirmative
desire to return home. Despite multiple attempts by the guardian ad litem, even with the
counselor’s encouragement of the child, L.F. never conveyed his wishes regarding custody to the
guardian ad litem. Accordingly, the record fails to demonstrate a conflict that required the
juvenile court to appoint independent counsel for the child. Father’s third assignment of error is
overruled.
FATHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PLAIN ERROR AND REVERSIBLE
ERROR IN DENYING MOTHER’S MOTION FOR LEGAL CUSTODY OF
[THE CHILD] AND IN FINDING THAT IT WAS IN [THE CHILD’S] BEST
INTEREST TO BE PLACED IN THE PERMANENT CUSTODY OF [CSB].
THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
MOTHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
DENYING MOTHER’S MOTION FOR LEGAL CUSTODY OR IN THE
ALTERNATIVE MOTHER’S MOTION FOR SIX-MONTH EXTENSION AND
IN FINDING THAT IT WAS IN THE CHILD’S BEST INTEREST TO BE
PLACED IN THE PERMANENT CUSTODY OF CSB. THE TRIAL COURT’S
DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
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{¶21} Mother and Father argue the judgment terminating their parental rights and
placing L.F. in the permanent custody of CSB was against the manifest weight of the evidence.
This Court disagrees.
{¶22} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶23} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
child or another child of the same parent has been adjudicated abused, neglected, or dependent
three times; or that the child cannot be placed with either parent, based on an analysis under
Section 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best
interest of the child, based on an analysis under Section 2151.414(D)(1). R.C. 2151.414(B)(1)
and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). The best interest
factors include: the interaction and interrelationships of the child, the wishes of the child, the
custodial history of the child, the child’s need for permanence and whether that can be achieved
without a grant of permanent custody, and whether any of the factors outlined in Section
10
2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see In re R.G., 9th Dist. Summit Nos.
24834 and 24850, 2009-Ohio-6284, ¶ 11. Clear and convincing evidence is that which will
“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368
(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶24} Here, although CSB alleged two first-prong grounds, the juvenile court only made
a finding as to one. Specifically, the trial court found that the agency met its burden of proof to
demonstrate that L.F. could not or should not be returned to either parent’s custody pursuant to
Section 2151.414(B)(1)(a). The juvenile court moreover relied on the agency’s claimed basis
that both parents had failed to remedy the conditions that gave rise to the child’s removal from
the home pursuant to Section 2151.414(E)(1), which provides:
In determining at a hearing [on a motion for permanent custody] 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 [permanent custody]
hearing * * * 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.
{¶25} L.F. was removed from his parents’ home based on Mother’s untreated mental
health issues, her ongoing substance abuse that impacted her ability to provide adequate care for
the child, and multiple incidents of domestic violence between Mother and Father and to which
11
the child bore witness. Further investigation indicated that Father also had substance abuse
issues. Despite case plan objectives focused on those concerns, as well as the agency’s referrals
to numerous service providers so the parents could address the issues that interfered with their
abilities to provide a safe and stable home environment for the child, neither Mother nor Father
made significant progress.
{¶26} Although the caseworker made referrals for Mother to obtain mental health
services from three different providers, Mother only ever promised to make appointments, but
never did. Mother was at times employed, but never held any job for very long. She was
homeless for a period of time during the case and eventually moved in with her sister’s former
fiancé. Although that home was structurally appropriate for the child, Mother was not on the
lease and could be asked to leave at any time.
{¶27} Mother initially sought substance abuse treatment, but she ceased all participation
within a few months once she lost her housing. Although Mother reengaged with drug treatment
at Bright View approximately one year into the case, she quit after two weeks. Bright View
terminated Mother for lack of participation on two separate occasions. At the time of the
permanent custody hearing, Mother had just reengaged with Bright View for a third time,
attending her first appointment, but missing her second. Although Mother consistently tested
positive for methamphetamine throughout the case, and occasionally tested positive for
marijuana and fentanyl, she denied that she was using drugs.
{¶28} Father lost his housing several months before the permanent custody hearing
when his apartment ceiling collapsed, but he obtained alternative housing which the caseworker
had not had an opportunity to view. Father was employed throughout the case.
12
{¶29} Although Father completed both the Stop the Cycle and Early Intervention two-
hour classes, he never followed up with the agency’s referral to Greenleaf for anger management
services. When Father informed the caseworker that he would prefer to seek anger management
services at Portage Path Behavioral Health, she approved. Nevertheless, Father failed to engage
in services there either. Consistently throughout the case, Father downplayed his anger and
engagement in domestic violence. He denied any fault relating to the altercations, as well as any
impact on the child who witnessed many instances of violence between his parents. Father
blamed Mother for putting ideas in the child’s head and showed no insight regarding his role in a
situation which harmed L.F.
{¶30} Finally, based both on Father’s admission and reports from others that Father had
issues with abusing alcohol, the caseworker made substance abuse referrals to Community
Health Center and another service provider in Stark County where Father lived. Despite the
caseworker’s encouragement, Father failed to initiate any alcohol abuse services.
{¶31} Both parents struggled with multiple issues that impacted their abilities to parent
L.F. appropriately and provide a safe and stable home for him. In the more than 18 months from
the adoption of the case plan until the permanent custody hearing, neither parent took advantage
of available services geared toward addressing their issues. Moreover, neither Mother nor Father
developed any insight into the problems that prevented them from being able to provide a safe
and stable home for L.F. In fact, both parents continued to deny their respective issues.
Accordingly, the juvenile court’s finding that L.F. could not or should not be returned to either
parent’s home based on Mother’s and Father’s failures to remedy the conditions that precipitated
the child’s removal was supported by clear and convincing evidence and, therefore, not against
the manifest weight of the evidence.
13
{¶32} The juvenile court’s finding that an award of permanent custody of the child to
CSB was in the child’s best interest was also supported by clear and convincing evidence. L.F.
was removed from his parents’ home when he was seven years old. There is no evidence in the
record that he lived anywhere but with Mother and Father prior to his removal, although there
was a no contact order in effect as to Father when the child was removed. During the case, L.F.
spent the first year in a foster home before being placed with paternal relatives. Unfortunately,
that relative placement disrupted quickly and L.F. was placed in a second foster home where he
remained for the duration of the case.
{¶33} L.F. struggles immensely with interaction and interrelationships with others. He
has been diagnosed with attention-deficit/hyperactivity disorder, adjustment disorder with mixed
disturbance of emotions and conduct, oppositional defiant disorder, and autism (moderate). He
does not respect authority figures and does not relate easily to peers. The child is easily triggered
to rage by anything and everything, including changes in his routine, questions about his
inappropriate behavior, and even eye contact by others. When enraged, L.F. screams, throws
himself on the ground, destroys property, and physically attacks others. He is not easily calmed
by others and has not effectively integrated self-soothing techniques. Consequently, his
interaction and interrelationships with others is volatile.
{¶34} L.F. has physically attacked other students and teachers. Shortly before the
permanent custody hearing, he hit another foster child in the home with a heavy object, splitting
that child’s ear and necessitating multiple stitches. L.F. has consistently and vehemently refused
to have any contact with Father throughout the case. He generally refuses to discuss Father
except to say that “my dad is a drunk and beats up on my mom.” Although the child never
resisted visits with Mother, Mother stopped visiting the child after approximately five months.
14
More than a year later, Mother showed up late for a visit. Afterwards, the child’s defiant and
aggressive behaviors in the foster home escalated.
{¶35} Service providers have worked tirelessly to help the child learn to manage his
rage and inappropriate behaviors with little to no effect. L.F. takes various medications to help
stabilize his moods. The professionals who manage the child’s medications have routinely
modified types and amounts of medications and ordered blood tests to better determine which
medications might work best. L.F.’s medication management will be an ongoing process. The
child receives counseling in various settings where multiple techniques have been used to help
him regulate his emotions and behaviors.
{¶36} In the school setting, gradated interventions have been utilized to help L.F. de-
escalate when he becomes enraged. Initially, a “zones of regulations” program was implemented
whereby the child was given activities in the hallway outside the classroom to distract him and
de-escalate his aggression. The school next initiated a 504 Plan which gave the child more
frequent breaks, extended time to complete tasks, and a safe area where he could attempt to
implement calming strategies. When those strategies were not effective, the school created an
Individualized Education Program for L.F. and moved him to a “self-contained” classroom, i.e.,
where the child stayed in one room with the same teacher all day instead of switching rooms for
different subjects, for “emotionally disturbed” students. After seeing that the child’s behavior
worsened in the afternoon, the school shortened his day and released him after lunch.
Abbreviated school days were short-lived, however, as the team of professionals working with
the child determined that he needed more learning time.
{¶37} As a last resort from an educational standpoint, when L.F.’s classroom behaviors
remained disruptive and violent, he was transferred to Manor, an alternative school environment
15
that focuses foremost on correcting behavior and secondarily on academics. Should that
environment also not succeed in helping the child develop appropriate coping skills to manage
his bouts of rage and learn to interact appropriately with peers and authority figures, the
remaining option would be to transfer L.F. to a residential facility, effectively hospitalization
rather than a learning environment. Given the child’s young age, the caseworker and other
professionals involved were loath to initiate such extreme measures unless they had no other
choice.
{¶38} L.F. does not behave aggressively when he is in complete control of a situation.
When unchallenged and not held accountable for his actions, he is not triggered to rage. L.F. did
not behave inappropriately during his limited visits with Mother. In addition, his first foster
mother reported no behavioral issues, although she admitted to the caseworker that she had no
rules and allowed the child to do what he pleased.
{¶39} L.F. was nine years old at the time of the permanent custody hearing. Although
the guardian ad litem attempted on various occasions to elicit the child’s wishes regarding
custody, he remained either unwilling or unable to convey his wishes to her. The guardian ad
litem opined that it was in the child’s best interest that he be placed in the permanent custody of
CSB.
{¶40} After nearly two years in custodial limbo, with placements in two different foster
homes and once with relatives, L.F. requires permanency. Neither Mother nor Father is a viable
custodial option for the child.
{¶41} Mother’s unaddressed mental health and substance abuse issues preclude her from
being able to meet the child’s basic and special needs and provide him with a safe and stable
home environment. While often adamantly denying that she had used drugs notwithstanding
16
positive drug screens, she other times admitted that she struggles with sobriety. Mother testified
that she had used drugs as recently as the week before the permanent custody hearing. She
admitted that she keeps drugs and paraphernalia in the home where she lives but that everything
is in “a box locked up,” presumably where the child would not have access. Mother did not
explain how she would shield the child from the effects of her drug use, however.
{¶42} Although Father was employed and had obtained housing, the child refused to
have contact or any type of relationship with Father. When Father showed up unannounced at
one of Mother’s visits, the child would not talk to or even look at Father. L.F. was clear with the
caseworker and guardian ad litem on the rare occasions that he would discuss Father that he
wanted nothing to do with the man who would get drunk and beat his Mother. The child
described to the caseworker the last incident of domestic violence he witnessed during which
Father hit Mother in the head with a candle holder which cut her. The record indicates that
during the six months prior to the agency’s filing its complaint in this case, the police had been
called to Mother’s and Father’s home at least eight times to address allegations of domestic
violence.
{¶43} Despite the child’s extreme repugnance towards Father based on Father’s physical
violence toward Mother, Father refused to recognize the impact that his actions had on the
child’s emotional and psychological well-being. Father denied committing domestic violence,
telling the caseworker that he was merely trying to prevent Mother from using drugs. He
explained that he pleaded guilty to his most recent domestic violence charge simply so he could
resolve the criminal case and return to his job as quickly as possible. Instead of admitting that
his actions had traumatized the child, Father told the caseworker that Mother filled the child’s
head with lies that caused him to distrust Father.
17
{¶44} Although Father attended two two-hour domestic violence classes, he
demonstrated no insight. He failed to engage in anger management and alcohol abuse services,
either of which might have helped him identify, understand, and address his issues. In the
absence of any self-awareness regarding his use of violence and alcohol, as well as the impact of
his behaviors on the child, Father is not able to provide a safe and nurturing environment for L.F.
{¶45} The child’s current foster family has experience caring for children on the autism
spectrum and with emotional issues. Although they had earlier expressed an interest in adopting
L.F., they changed their minds after the child’s recent and serious physical attack on another
foster child in the home, coupled with the child’s other ongoing extreme behaviors.
{¶46} The child’s registered behavior technician from Youth Intensive Services and his
school counselor both testified that any caregiver for L.F. must have a clear understanding of the
child’s multiple diagnoses which underlie his behavioral issues. In addition, his caregivers must
be willing and able to provide a supportive and non-threatening environment for the child. Both
parents’ unaddressed and ongoing issues prevent either from providing such an environment for
the child. Moreover, Mother and Father each have demonstrated a lack of insight regarding their
own behaviors as well as the child’s. Mother believes that the child does not act out, while
Father believes that any behavioral issues stem from Mother’s influence on the child, rather than
any acts of violence witnessed by L.F.
{¶47} Based on a thorough review of the evidence, this is not the exceptional case
wherein the trier of fact clearly lost its way and created a manifest miscarriage of justice by
granting permanent custody of the child to CSB. The clear and convincing evidence supported
the juvenile court’s first-prong finding of the permanent custody test and demonstrated that the
termination of Mother’s and Father’s rights was necessary in the best interest of the child.
18
Accordingly, the juvenile court’s judgment awarding permanent custody of L.F. to CSB was not
against the manifest weight of the evidence. Mother’s sole and Father’s first assignments of
error are overruled.
III.
{¶48} Mother’s and Father’s assignments of error are overruled. The judgment of the
Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JENNIFER HENSAL
FOR THE COURT
19
CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
ANGELINA GINGO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorey, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
SALLY PRENTICE, Guardian ad Litem.