In re N. Children ( 2024 )

[Cite as In re N. Children, 2024-Ohio-1492.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: N CHILDREN : APPEAL NO. C-240061
TRIAL NO. F10-639Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 19, 2024
Alana Van Gundy, for Appellant Father,
Raymond T. Faller, Hamilton County Public Defender, and Allison Smith, Assistant
Public Defender, Appellee Guardian Ad Litem for the minor children,
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this parental termination case, Mother and appellant Father
(together “Parents”) love their children, but the record contains abundant evidence
of concerns regarding their ability to care for them, including their failure to
consistently attend visitation (at one point, Parents failed to visit with their children
for more than 90 days), to comply with drug screens, and to manage their children’s
complex demands (including health challenges) together with Mother’s cognitive
challenges and limitations. Accordingly, appellee Hamilton County Department of
Job and Family Services (“HCJFS”) sought permanent custody, which the juvenile
court granted. Although Parents remain in a romantic relationship and reside
together, only Father contests the court’s grant of permanent custody in this appeal.
Based on a thorough review of the record, the applicable law, and the arguments
raised, however, we are not persuaded by his argument. We accordingly affirm the
juvenile court’s grant of permanent custody of the children to HCJFS.
I.
{¶2} This case involves Parents and three of their shared minor children,
A.N., D.N., and Z.N. The family has a long history of involvement with HCJFS,
beginning with Mother’s two older children (Father signed a paternity affidavit for the
younger of the two children) who were ultimately placed in legal custody of a family
member. But HCJFS’s involvement in this case began in December 2019 when
healthcare workers expressed concerns regarding Mother’s ability to care for A.N.
following her birth. A.N. was quickly placed in the interim custody of HCJFS.
{¶3} Initially, HCJFS’s primary concern stemmed from the impact of
Mother’s cognitive limitations and lack of emotional regulation on her ability to
2
OHIO FIRST DISTRICT COURT OF APPEALS
parent A.N. But as the case progressed, additional concerns regarding Parents’
abilities to care for the children arose. The agency received numerous reports of
domestic abuse between Mother and Father, and while there was little evidence to
substantiate any physical abuse, evidence emerged of frequent verbal altercations,
including a situation at visitation where law enforcement intervened. Additionally,
a previous domestic violence incident occurred between Father and his mother (the
children’s paternal grandmother), which resulted in his incarceration. Father is also
a convicted sex offender—for an incident involving a child younger than age 13—
with a registration requirement of 25 years.
{¶4} With A.N. in its temporary custody, the agency developed a case plan
as part of its effort to reunite the family. Parents pursued reunification together.
The case plan included the following services for Mother: a diagnostic assessment,
a psychological assessment, parenting education, a parenting capacity assessment,
toxicology screens, Developmental Disabilities Services (“DDS”), and visitation.
And regarding Father, the case plan included: a diagnostic assessment, parenting
education, toxicology screens, and visitation. The agency also required Parents to
establish stable housing and income.
{¶5} A.N. was adjudicated dependent in September 2020. And in March
2021, Father progressed to unsupervised visitation with A.N. Father was not
allowed to leave the child unsupervised with Mother during the visits.
{¶6} In July 2021, D.N. was born to Parents. Mother tested positive for
marijuana at the time of his birth. HCJFS was awarded interim custody of the child.
And in September 2021, D.N. was adjudicated dependent.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} A few months later, in November 2021, HCJFS filed for permanent
custody of A.N. In March 2022, the magistrate awarded Father legal custody of D.N.
with orders of protective supervision. But HCJFS and the children’s guardian ad
litem (“GAL”) promptly filed objections, and the court overruled the magistrate’s
decision and granted HCJFS temporary custody of D.N.
{¶8} In June 2022, Z.N. was born to Parents. Again, Mother tested positive
for marijuana at the time of the child’s birth, and HCJFS received interim custody
of Z.N. Prompted by Mother’s reports of domestic and sexual abuse, Father’s
unsupervised visits with A.N. were terminated in October 2022, and Father did not
progress past supervised visitation with any of the children since that time. The
agency moved for permanent custody of D.N. and amended its complaint to seek
permanent custody of Z.N. in November 2022. And Z.N. was adjudicated dependent
in January 2023.
{¶9} The permanency trial for all three children began in February 2023
and concluded in April 2023. HCJFS called six witnesses: the children’s paternal
grandmother, one of the children’s foster caregivers, Dr. Barbara Bergman (a
forensic psychologist), Melissa Hadley (a Beech Acres Service Parenting Center
team lead), Madison Huffman (the family’s HCJFS case worker), and Father.
{¶10} The paternal grandmother shared her concerns about Mother and
Father’s relationship and noted her relationship with the children. The foster
caregiver explained the children’s complex medical needs (all three children are
being monitored for cerebral palsy, and Z.N. has a skull condition which will require
invasive surgery and an intensive recovery), the children’s bond with the foster
parents and other children in the home, Parents’ visitation history and his
4
OHIO FIRST DISTRICT COURT OF APPEALS
observations concerning visitation, his communication with Parents, and phone
calls he received from Mother. Dr. Bergman attested to her struggles to get in
contact with HCJFS, Mother’s failure to complete the parenting evaluation, and her
recommendation that Father complete a sex offender risk assessment based on his
criminal history. Ms. Hadley testified to her observations of Parents during
visitation, Father’s attentiveness to the needs of the children, and Parents’ visitation
history from July 2022 through September 2022. Ms. Huffman shared her
observations of and communication with Parents, the agency’s concerns about
Parents, and the children’s bond with Parents. And finally, Father communicated
his employment history and housing status, shared his desire to reunite with the
children, and explained his inconsistent visitation history and refusal to complete
drug screening. He was also questioned regarding Mother’s ability to parent the
children.
{¶11} HCJFS tendered 14 exhibits, including Mother’s psychological
assessment, letters from Dr. Bergman (indicating her inability to complete Mother’s
parenting assessment), certified no shows to Mother’s and Father’s drug screens, a
certified eviction record, Mother’s lease, Family Nurturing Center and Beech Acres
visitation records, recordings of phone calls between Mother and Ms. Huffman and
Mother and the foster caregiver, and a log of bus tickets distributed to Parents.
{¶12} Ultimately, in July 2023, the magistrate granted permanent custody of
all three children to HCJFS. Mother and Father separately objected to the decision.
Upon reviewing the magistrate’s decision and hearing Mother’s and Father’s
objections, the juvenile court overruled all objections and adopted the magistrate’s
decision. Father now appeals (Mother did not file an appeal).
5
OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶13} In his sole assignment of error, Father contests the juvenile court’s
ultimate decision to grant permanent custody of his three minor children A.N., D.N.,
and Z.N. to HCJFS, challenging the decision on both sufficiency and manifest weight
grounds. “When applying a sufficiency-of-the-evidence standard, a court of appeals
should affirm a trial court when ‘ “the evidence is legally sufficient to support the []
verdict as a matter of law.” ’ ” Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-
Ohio-4918, 874 N.E.2d 1198, ¶ 3, quoting State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th Ed.1990). To review
for sufficiency, we “tak[e] a fresh look at the evidence to see whether it clearly and
convincingly supports the court’s decision.” In re M/E, 1st Dist. Hamilton No. C-
200349, 2021-Ohio-450, ¶ 8, citing In re C Children, 1st Dist. Hamilton Nos. C-
190650 and C-190682, 2020-Ohio-946, ¶ 8.
{¶14} But when reviewing for manifest weight, we “must weigh the evidence
and all reasonable inferences, consider the credibility of the witnesses, and determine
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 trial ordered.” In re Z.C., Slip Opinion No. 2023-Ohio-4703, ¶ 14, citing Eastley
v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. As we weigh
the evidence, we “must always be mindful of the presumption in favor of the finder of
fact.” Id., citing Eastley at ¶ 21.
{¶15} After successfully obtaining temporary custody following an R.C.
2151.353(A)(2) abuse, neglect, or dependency adjudication, HCJFS sought
permanent custody of the children pursuant to R.C. 2151.413(A). “The juvenile
6
OHIO FIRST DISTRICT COURT OF APPEALS
court should only grant an agency’s motion for permanent custody if it finds, by
clear and convincing evidence, that: (1) one of the conditions in R.C. 2151.414
(B)(1)(a) through (e) is satisfied, and (2) it is in the child’s best interest, pursuant to
the factors listed in subsection (D)(1).” In re De.R., 1st Dist. Hamilton No. C-
230685, 2024-Ohio-1183, ¶ 26, citing R.C. 2151.414(B)(1) and (D)(1); In re F.B., 1st
Dist. Hamilton No. C-200320, 2020-Ohio-5610, ¶ 17-18.
{¶16} On appeal, Father contests only the second prong of the permanent
custody analysis: the juvenile court’s finding that awarding HCJFS permanent
custody of the children was in their best interest. The first prong—one of the
conditions in R.C. 2151.414(B)(1)(a) through (e)—was clearly satisfied for all three
children. Regarding A.N. and D.N., the children were in the temporary custody of
HCJFS for 12 or more months of a consecutive 22-month period when the agency filed
the motion to modify temporary custody to permanent custody. See R.C.
2151.414(B)(1)(d). And although, at the time of filing, Z.N. had not yet been in HCJFS
custody for 12 months, based on the evidence contained in the record and the juvenile
court’s finding of abandonment under R.C. 2151.414(E)(10), he “[could] not be placed
with either of [his] parents within a reasonable time or should not be placed with [his]
parents.” R.C. 2151.414(B)(1)(a).
{¶17} Turning to the second prong of the permanent custody analysis, the
best interest analysis, “R.C. 2151.414.(D)(1) requires that a court consider all relevant
factors, including those delineated in R.C. 2151.414(D)(1)(a) through (e).” In re Z.W.,
1st Dist. Hamilton No. C-200061, 2020-Ohio-3100, ¶ 17. “No single factor is given
greater weight or heightened significance.” In re P. & H., 1st Dist. Hamilton Nos. C-
7
OHIO FIRST DISTRICT COURT OF APPEALS
190309 and C-190310, 2019-Ohio-3637, ¶ 35, citing In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶18} The court first considered R.C. 2151.414(D)(1)(a), which evaluates the
children’s interactions and relationships with their “parents, siblings, relatives,
foster caregivers and out-of-home providers, and any other person who may
significantly affect the child[ren].” R.C. 2151.414(D)(1)(a). All three children reside
together in a foster home and were placed with their foster caregivers shortly after
birth. The children are bonded to each other, their foster caregivers, and the other
children in the home. Testimony established that the children’s foster caregivers
consistently meet their complex medical needs and are willing to be a permanent
placement for the children.
{¶19} Father expressed his desire to reunite with the children. The record
demonstrates that Father appears eager to visit the children and, during visits, he is
patient with and attentive to the children. But Father failed to consistently attend
visitation and struggled meeting the needs of the children simultaneously with
Mother’s extensive needs.
{¶20} Mother also expressed a desire to be reunited with the children. The
record establishes concerns about her ability to parent the children and provide
adequate care due to her mental health and cognitive limitations. Yet Father
testified that he does not have concerns about Mother’s ability to parent the
children.
{¶21} At trial, witnesses also expressed concerns regarding the children’s
relationship with Parents. The foster caregiver testified that D.N. does not want to
leave when the visitation transportation arrives and is clingy when he returns from
8
OHIO FIRST DISTRICT COURT OF APPEALS
visits. And Ms. Huffman shared that she has concerns about the bond between the
children and Parents, specifically noting that A.N. did not want to hug Parents or
say goodbye at the end of a visit.
{¶22} Further, Father failed to consistently visit the children, raising
concerns about his bond with them. The record demonstrates multiple gaps in
visitation and establishes that Parents often ended visits early, preventing the
children from getting into a routine and building their relationships with Father.
Most recently, Father failed to visit the children from November 2022 to February
2023. And between February 2023 and April 2023, Father attended visitation twice
and ended both visits early.
{¶23} The court also considered the children’s relationships with other
family members. The paternal grandmother’s testimony established that she is
seeking visitation with the children and had visited them twice at the time of trial.
She is not seeking custody but indicated that she wants the children to build a
relationship with their family. Father testified that maternal grandmother lives
nearby and that Mother’s niece and sister could help with the children. But none of
Mother’s family testified, and the record does not contain any evidence of their
relationships with the children.
{¶24} Next, the court considered the children’s wishes. See R.C.
2151.414(D)(1)(b). The children were too young to express their wishes. But the
court acknowledged that their GAL recommended a grant of permanent custody to
HCJFS as in their best interest. See R.C. 2151.414(D)(1)(b) (noting the juvenile
court should consider “[t]he wishes of the child, as expressed directly by the child
9
OHIO FIRST DISTRICT COURT OF APPEALS
or through the child’s guardian ad litem, with due regard for the maturity of the
child”).
{¶25} Regarding the children’s custodial history, see R.C. 2151.414(D)(1)(c),
the evidence established that all three children were removed from Parents’ care and
placed in their foster home within a week of birth. At the time of the trial, A.N. had
been in HCJFS custody for more than three years, D.N. had been in HCJFS custody
for about one and a half years, and Z.N. had been in HCJFS custody for approximately
eight months.
{¶26} Thereafter, the court considered the children’s “need for a legally
secure permanent placement and whether that type of placement could be achieved
without a grant of permanent custody to [HCJFS].” R.C. 2151.414(D)(1)(d). As part
of their case plan, Parents were required to have stable housing and income.
Parents reside together, but only Mother is the leaseholder as she receives a subsidy
for housing, raising concerns about Father’s housing stability. Mother was evicted
once previously, but at the time of trial, Parents had resided in Mother’s new
apartment for several months.
{¶27} Father did not maintain long-term employment throughout the
duration of the case. He was fired from Rally’s, temporarily worked for Dunkin
Donuts, and experienced long stretches of unemployment. And at the time of the
trial in April 2023, Father had been without employment for at least four months
and was interviewing for jobs. In a subsequent written filing, Father indicated
(without any substantiation) that he was employed. But considering the evidence
establishing his tumultuous employment history, the court noted its concerns with
Father’s job security, especially in light of his criminal record.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} The record demonstrates that while Father had unsupervised
visitation with A.N. at one point, he never progressed beyond supervised visitation
with the other children. And he showed an overall lack of consistent visitation with
the children.
{¶29} Additionally, the record raises concerns about Father’s ability to
recognize and adequately address Mother’s cognitive deficiencies. Father testified
that he does not have concerns regarding Mother’s ability to parent the children.
And while he suggested that Mother’s niece and sister could help with the children
when he was not home and that there is a daycare down the street, he did not share
any specific plans for childcare, either in terms of the family members’ availability
or any planned enrollment in daycare.
{¶30} Based on the record, there is also conflicting evidence regarding
Father’s ability to parent the children. Ms. Hadley testified that she observed that
Father was attentive to the children’s needs during visitation. But the foster
caregiver testified that on multiple occasions Parents requested that he pick up A.N.
early from unsupervised visitation. And she was crying, cold, and hungry upon
pickup. The record also detailed instances where Parents requested that he get the
children early from supervised visitation. He stated that the children were often
hungry after visits, raising concerns about how frequently and what they were fed
during visits, and that the children often had full or leaking diapers at visit pickup.
Ms. Huffman testified that during a supervised visit, Parents requested that she
change the diapers of all three children.
{¶31} The court also noted concerns about Father’s physical health, given
testimony and evidence establishing his frequent cancelled visitations and
11
OHIO FIRST DISTRICT COURT OF APPEALS
toxicology screens due to illness. Ms. Huffman indicated that one visit was
cancelled because Father fainted and was taken to the hospital, and she noted that
there were some concerns with his heart. And on the day of the April 6, 2023
hearing, Father shared that he was hospitalized earlier that morning. Father
testified that he does not have any physical health concerns, and although requested
by HCJFS, he failed to submit any documentation of the illnesses resulting in
cancelled visitation.
{¶32} Finally, R.C. 2151.414(D)(1)(e) requires the court to consider whether
any factor listed in R.C. 2151.414(E)(7) through (11) applies. In relation to Father,
the court determined that (E)(10) applies because Father abandoned the children
when he did not visit with them between November 15, 2022 and February 14, 2023,
which exceeded the 90-day statutory definition of abandonment. See R.C.
2151.011(C).
{¶33} The record demonstrates that the juvenile court properly considered the
relevant best interest factors and weighed the factors to conclude that it is in the best
interest of A.N., D.N., and Z.N. to be placed in the permanent custody of HCJFS.
Accordingly, we hold the court’s best interest finding was supported by sufficient
evidence and was not against the manifest weight of the evidence.
* * *
{¶34} In light of the record and the foregoing analysis, we overrule Father’s
sole assignment of error and affirm the judgment of the juvenile court.
Judgment affirmed.
BOCK, P.J., and WINKLER, J., concur.
12
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
13