In re D.P. , 2021 Ohio 3672 ( 2021 )

[Cite as In re D.P., 2021-Ohio-3672.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE D.P. :
: No. 110379
A Minor Child :
:
[Appeal by DE.P., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 14, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-19908175
Appearances:
Michael Drain, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
EILEEN T. GALLAGHER, J.:
Appellant-father, De.P. (“Father”), appeals the juvenile court’s decision
terminating his parental rights and awarding permanent custody of D.P. to the
Cuyahoga County Division of Children and Family Services (“CCDCFS”).1 He raises
the following assignment of error for review:
1. There was not a sufficiency of evidence for the trial court to find that
an order of permanent custody was called for.
After careful review of the record and relevant case law, we affirm the
juvenile court’s judgment.
I. Procedural and Factual History
On July 2, 2019, CCDCFS filed a complaint alleging that D.P., born June
9, 2019, was a dependent child as defined by R.C. 2151.04(D). In support of its
complaint, the agency alleged the following particulars:
1. Mother has four older children who are no longer in her care * * *
due in part to [her] substance abuse and inability to provide a stable
home * * *.
2. Mother has a substance use disorder related to alcohol and
marijuana. Mother has been recommended for out-patient treatment
but has not complied with the recommendations.
3. Mother lacks appropriate judgment and parenting skills. Mother
has inappropriate conversations with her older child. Additionally, she
allows [Father] to provide care for [D.P.] despite knowing that he has
previously abused another child.
4. [Father] has not established paternity for [D.P.].
5. On or about March 23, 2019, [Father] punched a 10-year old child
in the face causing him to suffer a black eye. * * *
6. [Father] has failed to * * * support, visit, or communicate with [D.P.]
since birth.
1 The child’s mother, K.M. (“Mother”), is not a party to this appeal.
On August 2, 2019, CCDCFS filed a case plan. With respect to Father,
the case plan required him to “complete and actively participate in parenting
education classes” and “demonstrate adequate parenting abilities by using non-
physical means of discipline.” Father was also required to establish paternity, which
he satisfied on August 29, 2019.
On September 16, 2019, CCDCFS filed an amended complaint, alleging
that D.P. was abused and dependent based on allegations that Mother and Father
“have a domestically violent relationship, with at least one incident of domestic
violence occurring in the presence of [D.P.]”
On September 17, 2019, a magistrate committed D.P. to the emergency
temporary custody of CCDCFS, finding, in pertinent part:
The court finds that the continued residence of the child in the home of
[Mother], at this time, will be contrary to the child’s best interests and
welfare. * * * The child is in the mother’s custody. The mother has
failed to comply with substance abuse and mental health treatment.
Mother has recently began receiving mental health treatment. Mother
has four older children. Three children are in the care of their fathers.
The fourth child is in the custody of the [CCDCFS]. Mother has
unresolved criminal charges. [Father] has a child in the protective
supervision of [CCDCFS] as a result of [Father] punching [D.P.’s] 10-
year old sibling. See Case Number AD19906048. Mother reports that
[Father] is domestically violent. The parents to complete parenting
education.
On September 27, 2019, a magistrate adjudicated D.P. abused and
dependent, and committed him to the temporary custody of CCDCFS. As it relates
to this appeal, the court found that “Father is in need of parenting education, anger
management education and domestic violence education.” Accordingly, the court
ordered the agency to amend the case plan “to include domestic violence and anger
management education for [Father].”2 The case plan was subsequently amended on
October 10, 2019, to comply with the court’s order.
On October 17, 2019, CCDCFS filed a semiannual review report (“SAR”)
regarding D.P., whose case was initiated in July 2019, and his half-sibling, Z.M.,
whose case has been pending since October 2018. Father is not the biological father
of Z.M. This SAR noted that Father “has been provided information to complete
walk-in assessment to engage in parenting, anger management, and DV education
with CEOGC. [Father] has expressed interest in completing necessary steps to work
toward reunification.” The SAR reported that Father established paternity and “is
visiting with [D.P.]. [Father] is appropriate. He was talking and cooing with the
baby.” Regarding the ongoing concerns with domestic violence, however, the SAR
provided as follows:
[Father] is currently involved in a separate agency case where it was
alleged that he hit a 10-year old. [Mother] reported in September 2019
that [Father] hit her with a pistol. [Father] reports that [Mother] was
upset when she found out he was having a child with a separate woman
and she is trying to ruin his reputation and get revenge on him. It was
additionally reported by [Mother] that there was an additional DV
incident with [Father] as the perpetrator which occurred on [October
7, 2019].
CCDCFS filed a second SAR on April 10, 2020, which stated that Father
started “[parenting] classes beginning of March but delayed because of COVID-19.”
2 On October 21, 2019, the trial court affirmed, approved, and adopted the magistrate’s
decision.
Father was “consistent with visits [with D.P.] up until February” and had one “phone
call visit on 3/31/20.” Additionally, the report stated that Father “shows he [h]as a
bonding relationship with [D.P.]. [Father] plays with him and shows he is a loving
caring father. He has also miss[ed] a few visits but he apologize[s] if he misses
visits.” However, the SAR further noted that Father “may be facing felonious assault
charges” and “hasn’t engaged in any services.”
On May 27, 2020, CCDCFS filed a “motion for first extension of
temporary custody and request for specific findings.” This motion states that
temporary custody “was granted pursuant to an order journalized October 21, 2019
and will expire July 1, 2020. If granted, such custody will extend until January 1,
2021.” As to Father, CCDCFS indicated that he “is engaging in parenting classes and
he has stable housing. Father, however, has not started domestic violence classes.”
CCDCFS argued that “[a]lthough there has been progress made on the case plan
since the original order of temporary custody, because all of the objectives have not
yet been completed, the risk to the child has not been sufficiently reduced.”
On July 9, 2020, the magistrate issued an order holding CCDCFS’s
motion for extension of temporary custody in abeyance. Following a hearing held
on September 3, 2020, the magistrate issued a decision extending D.P.’s temporary
custody to January 1, 2021, finding an extension to be in D.P.’s best interest. As to
Father, the magistrate determined that “he needs to complete anger management
classes, domestic violence education, establish housing and maintain income to
support the child.” The court adopted this magistrate’s decision on September 23,
2020.
On September 30, 2020, CCDCFS filed a motion to modify temporary
custody to permanent custody. In support of the motion, the agency submitted the
affidavit of Child Protection Specialist Christopher Weaver (“Weaver”), who
averred, in pertinent part:
10. A case plan was filed with the juvenile court and approved which
requires that Father complete a[n] anger management program, a
domestic violence program, and complete a parenting education
program;
11. Father has not completed any recommended case plan services;
12. Father has unstable housing and is unable to meet the child’s basic
needs;
13. Father has another child who was adjudicated due in part to [his]
physical abuse of another child, and who is currently committed to the
temporary custody of CCDCFS; and
14. Father has an unresolved criminal matter pending before the
Cuyahoga County Court of Common Pleas for felonious assault.
On November 30, 2020, the GAL filed a report and recommendation.
In the report, the GAL described the scope and nature of her investigation and the
factors she relied on when formulating her recommendation for the court. With
respect to Father’s relationship with D.P., the GAL stated that she
had a chance to observe one of [Father’s] in person visits with [D.P.].
The visit went well. [Father] was appropriate and was engaged with his
child. The same was confirmed by the social worker, who regularly
observes [Father’s] visits, i.e. that [Father] is appropriate with his son
and usually his visits go well.
The GAL further reported the following:
According to the social worker, [Father] for the most part has been
compliant with the case plan services. He has finished parenting
classes and domestic violence counseling. The social worker was able
to visit [Father] at his home and advises that it is appropriate.
However, [Father] has not been able to verify his employment and his
source of income. He claims to have his own landscaping business, but
he has not been able to show any tax returns or any receipts, invoices,
and payments associated with his business.
***
[Father] has an open case with the Cuyahoga County Common Pleas
Court Case No. CR-20-652185, where he has been charged with
felonious assault * * *. He has failed to appear in court regarding this
matter, and as a result, on October 8, 2020, the court issued [a] capias
against him. The charges against him have been pending for more than
a year now.
[Father’s] criminal charges along with some history of [his]
inappropriate excessive disciplining of the children are of a concern for
the undersigned. [Father] has another open case with this court where
he was alleged to punch another child * * * into his face and causing a
black eye. * * *
Further, another half-sibling of [D.P.] * * * has reported to the
undersigned that [Father] hit her over the head with his boot, and that
he hit her younger sister * * * with a slipper.
Based on the foregoing, the GAL concluded that it is “in the best interests of [D.P.]
to grant [CCDCFS’s] request for permanent custody.”
The juvenile court held a dispositional hearing on December 7, 2020.
At the hearing, Weaver reiterated that he was assigned to this case in June 2020.
Weaver described the circumstances that led to D.P.’s removal from Mother’s home,
including the allegations of excessive discipline, domestic violence, and felonious
assault levied against Father. Weaver further explained the scope of Father’s case
plan for reunification, including the requirements relating to parenting, anger
management, and domestic violence.
Weaver confirmed that while the motion for permanent custody was
pending, Father completed the parenting and domestic violence portions of his case
plan. In addition, Weaver testified that Father has appropriate housing, has
engaged in appropriate visits with D.P., and has begun attending anger-
management classes. Weaver clarified, however, that Father had yet to complete
the anger-management program. Weaver also expressed concerns with Father’s
“income situation,” stating that Father has not provided the agency with pay stubs
or a work-place phone number, despite Weaver asking for this information.
According to Weaver, D.P. has been with the same foster parents since
September 2019. Weaver has visited the foster home monthly, and he testified that
“[t]he home has been appropriate. There’s been no concerns in the home.” (Tr. 51.)
The foster parents get along with D.P. “very well” and “they are attached.” (Tr. id.).
The foster parents are willing to provide a permanent home for D.P.
Based on the forgoing, Weaver opined that it was in the child’s best
interests to have the agency awarded permanent custody, stating:
In regards to [Father], [Father] entered into the case in February of
2019, and he has spent this time — it’s taken him until November of
2020 for him to finally complete his services.
He also has an open case with DCFS where he is still open.
He also has a felonious assault charge that he is currently capias on
resulting as I said a felonious assault.
We’ve had SARs. We also filed an extension for [Father} because he
was completing his services.
We had an SAR again in I believe September where [Father] hadn’t
even started his domestic violence service, so that’s why we went for
[permanent custody].
(Tr. 53.)
At the close of trial, the court heard from the child’s GAL. Consistent
with her written report, the GAL recommended that permanent custody be granted
in favor of CCDCFS, stating, in relevant part:
With respect to [Father], I think his efforts to complete case plan
services and I see that he has been trying to attend counseling,
complete the parenting services, but I don’t think that he benefitted
from those services, and specifically I have a concern about his
employment and source of income.
For the duration of his case with [D.P.] he hasn’t shown me any
documents that relate to his business or his source of income.
[Mother] at some point told me that he gets income from selling drugs.
Of course, I don’t have any information but her allegation, but he has
not shown to the Court or to me or to the social worker how he gets his
income in order to support [his] children, and it is a concern to me.
He claims that he has a landscape business, and I understand that he
needs to drive a car.
He told me recently that he doesn’t have a valid driver’s license and that
he never had a driver’s license and he never drove a car, but it appears
that the social worker saw him driving a car.
***
So I don’t know what sort of business he has and whether he would be
able to support his children.
With respect to domestic violence and anger management, I still have
concerns about [Father] even though he completed domestic violence
classes because he has an open case for felonious assault. * * *
It’s a crime of violence. I know that he has an open case with the Court
because allegedly he hit the child and made the black eye, not the child,
but the child’s mother was home at the time [Father] resided.
One of the children who is my ward told me that [Father] hit her with
a boot, with a shoe on her head and she was very specific that he hit her
sister with a slipper over the head as well.
I have no reason not to believe the child.
It’s a concern to me that [Father] uses physical force either to discipline
children or to resolve issues with other people, and I’m not sure that he
has benefitted or he has recognized in the first place that he has an
issue.
So for those reasons I believe it’s in the best interest of [D.P.] to grant
permanent custody to [CCDCFS].
(Tr. 64-66.)
On February 10, 2021, the juvenile court terminated Father’s parental
rights and granted permanent custody of D.P. to CCDCFS. The trial court found, by
clear and convincing evidence, that despite the agency’s reasonable efforts for
reunification, D.P. could not be placed with either of his parents within a reasonable
time or should not be placed with either of his parents, and that it is in the best
interests of D.P. to be placed in the permanent custody of CCDCFS.
Father now appeals from the trial court’s judgment.
II. Law and Analysis
In his sole assignment of error, Father argues the juvenile court’s
judgment was not supported by sufficient evidence. Specifically, Father contends
the record does not clearly and convincingly support the trial court’s finding that the
child could not be placed with either parent within a reasonable time or should not
be placed with either parents.
CCDCFS may obtain permanent custody by first obtaining temporary
custody of a child and then filing a motion for permanent custody under R.C.
2151.413. See In re M.E., 8th Dist. Cuyahoga No. 86274, 2006-Ohio-1837. There is
no dispute that the proper procedure occurred here. When CCDCFS files a
permanent custody motion under R.C. 2151.413 after obtaining temporary custody,
the guidelines and procedures set forth under R.C. 2151.414 apply.
Courts apply a two-pronged test when ruling on permanent custody
motions. To grant the motion, courts first must find that any of the
factors in R.C. 2151.414(B)(1)(a)-(e) apply. Second, courts must
determine that terminating parental rights and granting permanent
custody to the agency is in the best interest of the child or children using
the factors in R.C. 2151.414(D).
In re De.D., 8th Dist. Cuyahoga No. 108760, 2020-Ohio-906, ¶ 16.
“An appellate court will not reverse a juvenile court’s termination of
parental rights and award of permanent custody to an agency if the judgment is
supported by clear and convincing evidence.” In re M.J., 8th Dist. Cuyahoga No.
100071, 2013-Ohio-5440, ¶ 24. “‘Clear and convincing evidence’ is that quantum of
evidence that instills in the trier of fact a firm belief or conviction as to the allegations
sought to be established.” In re T.S., 8th Dist. Cuyahoga No. 109957, 2021-Ohio-
214, ¶ 23, quoting In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13.
If the grant of permanent custody is supported by clear and convincing evidence, we
will not reverse that judgment. In re J.J., 8th Dist. Cuyahoga No. 108564, 2019-
Ohio-4984, ¶ 30.
A. R.C. 2151.414(B)(1) Factors
As stated, R.C. 2151.414(B) sets forth a two-pronged analysis the
juvenile court is required to apply when ruling on a motion for permanent custody.
R.C. 2151.414(B)(1) states permanent custody may be granted to a public or private
agency if the juvenile court determines by clear and convincing evidence at a hearing
held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the
child and any of the following apply:
(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.
(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.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
In this case, the juvenile court found, pursuant to R.C.
2151.414(B)(1)(a), that the child is not abandoned or orphaned, and has not been in
the temporary custody of one or more public children services agencies or private
child placing agencies for 12 or more months of a consecutive 22-month period. The
court further found, by clear and convincing evidence, that the child could not be
placed with either parent within a reasonable time or should not be placed with
either parent.
When assessing whether a 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 under R.C. 2151.414(B)(1)(a), a juvenile court must consider the factors
outlined in R.C. 2151.414(E). In re A.V., 8th Dist. Cuyahoga No. 101391, 2014-Ohio-
5348, ¶ 58; In re R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 2012-Ohio-
4290, ¶ 14; In re B.P., 8th Dist. Cuyahoga Nos. 107732 and 107735, 2019-Ohio-2919,
¶ 13. A juvenile court is only required to find that one of these factors is met in order
to properly find that a child cannot or should not be placed with a parent. In re
Ca.T., 8th Dist. Cuyahoga No. 108969, 2020-Ohio-579, ¶ 27, citing In re V.C., 8th
Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 42.
In this case, the juvenile court found, pursuant to R.C. 2151.414(E)(1),
that
[f]ollowing 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 challenging the forgoing finding, Father argues that as of the time
of trial, he had stable housing and was compliant with the services that were
required of him. He further asserts that because a parent should be entitled to “an
adequate opportunity within the confines of the two-year statutory period to
demonstrate his [or her] willingness to parent,” “there was time left in the case for
[him] to complete the case plan services and to provide documentation of his
employment.”
After careful consideration, we conclude that the juvenile court’s
finding pursuant to R.C. 2151.414(E)(1) is supported by clear and convincing
evidence. In this case, Weaver provided extensive testimony regarding the case plan
created to remedy the issues that caused the child’s removal. In this regard, the
testimony presented at trial established that Father established paternity,
demonstrated the ability to interact with D.P., completed a parenting course, and
participated in domestic abuse counseling prior to the completion of trial. However,
both the social worker and the child’s GAL questioned whether Father had
benefitted from his domestic violence services given the breadth of the allegations
of violence levied against Father during the pendency of this matter. The record
further reflects, and Father does not dispute, that Father has failed to provide
documentation of his employment as requested. (Tr. 16-17, 36-38.) Father had
more than one year to provide proof of his employment with a landscape company
and failed to do so. Thus, there remain issues concerning Father’s ability to
adequately support the child.
Additionally, and perhaps most significantly, Father has not competed
the mandated anger-management classes, which were included in Father’s case plan
in order to adequately address and remedy the anger issues that have led to incidents
of violence. As discussed, this case was initiated, in part, following allegations that
Father “punched a 10-year old child in the face causing him to suffer a black eye.”
Relatedly, the record reflects that in the midst of these custody proceedings, Father
allegedly committed two separate acts of domestic violence. The first incident
alleged that Father struck Mother with a pistol, while the second incident resulted
in Mother sustaining a “black eye and swollen nose.” The social worker also outlined
other incidents of alleged excessive discipline and explained that Father has a
pending felonious assault case with an outstanding arrest warrant for failure to
appear in court. The events leading to this criminal indictment also arose during
the pendency of this custody matter. Thus, Father’s obligation to demonstrate his
ability to remedy his anger issues was critical to the determination of whether D.P.
could or should be placed in Father’s custody. By failing to complete his anger-
management courses in the year preceding the permanent custody trial, we are
unable to accept Father’s position that the agency failed to present sufficient
evidence regarding the applicability of R.C. 2151.414(B)(1)(a).
Finally, this court is equally unpersuaded by Father’s assertion that
the trial court’s judgment was rendered “before time had run to determine
permanent custody.” R.C. 2151.353(G) provides that the statutory term for a
temporary custody order is one year. While the agency is permitted to seek up to
two six-month extensions of temporary custody, the decision to exercise that
statutory right is left in the sound discretion of the agency and is not mandated by
statute. See R.C. 2151.415(A)(6) and (D)(1)-(4). See also In re A.C., 2d Dist.
Montgomery No. 26211, 2014-Ohio-4402, ¶ 18 (noting that “[the agency] was not
required to seek an extension of temporary custody * * *[and] was entitled to move
for permanent custody rather than to seek an extension.”).
In this case, the record demonstrates that the period of temporary
custody far exceeded a period of one year based on the agency’s decision to seek an
extension of temporary custody in May 2020. However, because Father failed to
take any additional steps towards his case plan in the following four months, the
agency determined that it was necessary to seek permanent custody and not an
additional extension of temporary custody. The fact that Father finally took the
initiative to begin anger-management and domestic violence courses once the
agency pursued permanent custody does not negate the evidence demonstrating his
failure to complete the anger-management program by the time trial commenced.
See In re A.L.A. and A.S.A., 11th Dist. Lake Nos. 2011-L-020 and 2011-L-021, 2011-
Ohio-3124, ¶ 108 (A parent “is afforded a reasonable, not an indefinite, period of
time to remedy the conditions causing the children's removal.”). There is no
evidence in the record that it would be beneficial to D.P. to allow Father to have
additional time to try to achieve what he already should have accomplished.
Accordingly, we find the evidence supports the trial court’s
application of R.C. 2151.414(E) and its finding pursuant to R.C. 2151.414(B)(1)(a)
that D.P. could not be returned to Father’s custody within a reasonable time or
should not be placed with Father.
B. R.C. 2151.414(D)(1) Best-Interest Factors
We review a juvenile court’s determination of a child’s best interests
under R.C. 2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No.
95188, 2010-Ohio-5618, ¶ 47. An abuse of discretion implies that the court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In determining the best interests of a child at a hearing held pursuant
to R.C. 2151.414(A)(1), the juvenile 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 * * *;
(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).
Although a juvenile court is required to consider each relevant factor
under R.C. 2151.414(D)(1) in making a determination regarding permanent custody,
“there is not one element that is given greater weight than the others pursuant to the
statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
We have previously stated that only one of these enumerated factors needs to be
resolved in favor of the award of permanent custody. In re Moore, 8th Dist.
Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing In re
Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993). Moreover,
the Ohio Supreme Court has clarified that
R.C. 2151.414(D)(1) does not require a juvenile court to expressly
discuss each of the best-interest factors in R.C. 2151.414(D)(1)(a)
through (e). Consideration is all the statute requires.
In re A.M., Slip Opinion No. 2020-Ohio-5102, ¶ 31.
In this case, the court expressed that it considered the relevant factors
set forth under R.C. 2151.414(D)(1) when assessing the child’s best interests. Based
on this record, we do not find that the juvenile court abused its discretion in
determining that permanent custody was in the child’s best interests. The court was
provided with extensive testimony regarding D.P.’s need for permanency, D.P.’s
positive bond with his current foster family, and Father’s failure to fully satisfy the
objectives of his case plan. There remain ongoing concerns with Father’s ability to
provide a permanent and safe home for D.P. Moreover, the court was guided by the
recommendation of the GAL, who spoke on behalf of the young child and
recommended that it was in the child’s best interests to grant the agency permanent
custody. Accordingly, we conclude that the juvenile court’s termination of parental
rights and award of permanent custody of the child to CCDCFS is supported by clear
and convincing evidence in the record.
Father’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
LISA B. FORBES, J., DISSENTS WITH SEPARATE ATTACHED OPINION
LISA B. FORBES, J., DISSENTING:
I respectfully dissent from the majority’s opinion and would instead
find that the juvenile court abused its discretion when it terminated Father’s
parental rights. There was not clear and convincing evidence in the record to
support the trial court’s conclusion that Father is “still demonstrating outbursts of
anger.”
“Clear and convincing evidence is that measure or degree of proof
which will produce in the mind of the trier of facts 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 is required beyond a
reasonable doubt as in criminal cases.” Cross v. Ledford, 1691 Ohio St. 469, 477,
120 N.E.2d 118 (1954).
In the case at hand, under R.C. 2151.414(B)(1)(a) and 2151.414(E)(1),
the juvenile court found that D.P. “cannot be placed with [Father] within a
reasonable time or should not be placed with [Father]” because Father “has failed
continuously and repeatedly to substantially remedy the conditions causing [D.P.]
to be placed outside [D.P.’s] home.” Under R.C. 2151.414(D)(1), the juvenile court
found that permanent custody to CCDCFS was in D.P.’s best interest.
In the original complaint, CCDCFS alleged that the following
“conditions” involving Father contributed to D.P. being placed outside of his home:
Father had not established paternity; Father “punched a 10-year old child in the
face”; and Father failed to “support, visit, or communicate with” D.P. It is
undisputed that Father established paternity when D.P. was two months old, and
since then Father has visited and communicated with D.P. during regularly
scheduled times. CCDCFS amended the complaint to add that D.P.’s mother
reported that she and Father have a domestically violent relationship. I believe it is
important to note that D.P.’s mother and Father do not live together, and D.P. has
never lived with Father.
At the dispositional hearing, the evidence showed that Father was
“compliant with the services.” Specifically, Father completed two of three ordered
classes and was on target to complete the third. Asked if Father is “doing what
you’ve asked him to do,” Weaver answered, “Yes, for right now.” Weaver also
testified that Father’s housing was appropriate for D.P. The evidence in the record
shows that Father acts appropriately and engages with D.P. during visitation.
The crux of this case lies in the juvenile court’s finding that Father “has
failed to benefit from the domestic violence program as he is still demonstrating
outburst of anger.” As noted by the majority, it is true that Weaver and the GAL also
concluded that Father was not benefitting from his anger management and domestic
violence classes. However, when carefully reviewing the record, I do not find that
this conclusion is supported by any evidence.
The majority of the evidence in the record about remedying the
conditions causing D.P. to be placed outside of his home, including the SARs, case
plan objectives, hearing testimony, and the juvenile court’s findings, relate to D.P.’s
mother and not to D.P. or to Father. The sparse evidence concerning Father is that,
once paternity was established, he visited with D.P., behaved appropriately during
these visits, and complied with his case plan.
While the record includes CCDCFS’s recounting of the mother’s
unsubstantiated allegations of domestic violence committed by Father, the
allegations involved conduct that occurred long before Father participated in
domestic violence classes. There is no evidence to show that Father continued to act
violently after participating in and completing the classes. As for Father’s pending
assault charge, it is based on an incident that allegedly occurred in October 2019.
The evidence showed that Father began taking the classes assigned in his case plan
in early 2020 but was delayed because of Covid-19. Since Father has participated in
classes, the record is devoid of any evidence of ongoing “outbursts of anger.”
Additionally, the evidence shows that on September 23, 2020, the
court granted an extension of temporary custody through January 1, 2021, to, in
part, allow Father to complete his case plan objectives. However, seven days later,
on September 30, 2020, CCDCFS filed a motion to modify temporary custody to
permanent custody.
In my opinion, the juvenile court abused its discretion by granting this
motion before the record was fully developed as to how the R.C. 2151.414 factors
apply to D.P. and to Father. In other words, the record does not contain clear and
convincing evidence that: 1) D.P. cannot be placed with Father within a reasonable
time or should not be placed with Father; and 2) terminating Father’s parental rights
is in the best interest of D.P. Father has made significant progress on his case plan,
and there is reasonable cause to believe that D.P. will be reunified with Father. See
In re N.B., 8th Dist. Cuyahoga No. 81392, 2003-Ohio-3656, ¶ 13 (not extending
temporary custody beyond the two-year “sunset” date in R.C. 2151.415(D)(4) “is not
only contrary to what the legislature intended; it would offend a parent’s
constitutional right to due process”); In re D.F., 2019-Ohio-3046, 140 N.E.3d 1081,
¶ 56 (8th Dist.) (“This is not a case in which the ‘remedy of last resort’ — termination
of Mother’s parental rights and granting permanent custody to CCDCFS — has been
shown by clear and convincing evidence to be in the best interest of these children.”).
Ohio courts have consistently recognized that the “termination of
parental rights is the family law equivalent of the death penalty in a criminal case.”
In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). See also Santosky
v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“The
fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State.”).
“Even when blood relationships are strained, parents retain a vital
interest in preventing the irretrievable destruction of their family life.” Id. The
United States Supreme Court has also held that termination of parental rights
“destroy[s] permanently all legal recognition of the parental relationship.” Rivera
v. Minnich, 483 U.S. 574, 580, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987).
Accordingly, I would find that the court abused its discretion when it
terminated Father’s parental rights because there was not clear and convincing
evidence in the record to support this decision, and I would reverse the trial court’s
judgment.