In re A.W. , 2021 Ohio 3914 ( 2021 )

[Cite as In re A.W., 2021-Ohio-3914.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: A.W. : APPEAL NO. C-210420
TRIAL NO. F18-597Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 3, 2021
Treleven & Kingensmith LLC and John Treleven, for Appellant Father,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nichlas C. Varney,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Belinda S. Gullette,
Assistant Public Defender, Guardian ad Litem for A.W.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Father appeals the Hamilton County Juvenile Court’s judgment
granting permanent custody of his child to the Hamilton County Department of Job
and Family Services (“HCJFS”). The child’s guardian ad litem (“GAL”) and HCJFS
ask this court to affirm the juvenile court’s judgment.
{¶2} In April 2018, the juvenile court granted interim custody of ten-
month-old A.W. to HCJFS after his mother was admitted to the hospital for mental-
health and substance-abuse issues. HCJFS filed a complaint for temporary custody,
naming father only by his first name, Tracy.
{¶3} In May 2018, HCJFS amended its complaint to name father by his full
name, and another man, M.D., as alleged fathers of A.W. In June 2018, A.W. was
adjudicated abused, neglected, and dependent, and mother agreed to his placement
in the temporary custody of HCJFS.
{¶4} In December 2018, the magistrate conducted a review hearing, noting
that father, who was in prison in Illinois, had contacted HCJFS to indicate his
support of mother’s reunification with A.W.
{¶5} In February 2020, HCJFS moved for permanent custody under R.C.
2151.413, naming three men, including father, M.D., and a third man as A.W.’s
alleged fathers.
{¶6} In April 2020, M.D., who was also incarcerated, wrote to the court to
request that an attorney be appointed for him. One of M.D.’s relatives filed a petition
for custody of A.W., and M.D. submitted to genetic testing to determine if he was
A.W.’s biological father.
{¶7} In October 2020, mother signed a permanent surrender of her
parental rights. The matter was continued for the results of M.D.’s genetic test.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} On December 11, 2020, the court ordered HCJFS to proceed with a
motherless genetic test for father, because mother’s whereabouts were unknown.
The matter was continued for the status of the genetic tests.
{¶9} On December 17, 2020, the court noted that father, who was still
incarcerated in Illinois, had written to the court to request that an attorney be
appointed for him. No such letter from father appears in the record. The court
referred the matter to the public defender’s office for the appointment of an attorney
for father.
{¶10} Counsel for father appeared at a pretrial hearing on January 6, 2021,
and the matter was continued for the status of genetic testing for father and M.D.
{¶11} On January 6, 2021, the court held a hearing at which counsel for
father appeared. An HCJFS supervisor stated that genetic testing revealed that
father was A.W.’s father. In its entry following that hearing, however, the court
continued the matter to January 15, 2021, for the status of the genetic tests for M.D.
and father.
{¶12} At a hearing on January 15, 2021, counsel for father appeared. An
HCJFS supervisor informed the court that genetic testing had revealed that father
was A.W.’s father. In its entry, however, the court noted only that genetic testing
revealed that M.D. was not A.W.’s father. The court dismissed the custody petition
filed by M.D.’s relative, who indicated that she would no longer pursue her petition.
{¶13} At the February 2021 hearing on HCJFS’s permanent-custody motion,
the HCJFS caseworker testified that A.W., who had remained in the same foster
placement since April 2018, was well bonded to his foster parents, who wished to
adopt A.W. should permanent custody be granted. In closing argument, counsel for
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OHIO FIRST DISTRICT COURT OF APPEALS
father indicated that father would like his sister to have custody of A.W. Counsel
stated that he reached out to father’s sister, but received no response.
{¶14} The magistrate determined, for the first time, that father was A.W.’s
legal father and granted the permanent-custody motion. The juvenile court
overruled father’s objections to the magistrate’s decision and awarded permanent
custody of A.W. to HCJFS. This appeal followed.
{¶15} In his sole assignment of error, father argues that the juvenile court
erred in granting permanent custody of A.W. to HCJFS.
{¶16} A juvenile court’s determination on a permanent-custody motion must
be supported by clear and convincing evidence. In re B.J., 1st Dist. Hamilton Nos. C-
200372 and C-200376, 2021-Ohio-373, ¶ 14. Clear and convincing evidence is
evidence sufficient to “produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538,
2008-Ohio-4825, 895 N.E.2d 809, ¶ 42. We must examine the record and
determine if the juvenile court had sufficient evidence before it to satisfy the clear-
and-convincing standard. In re B.J. at ¶ 14. In reviewing a challenge to the weight of
the evidence, we review the record to determine if the juvenile court lost its way and
created such a manifest miscarriage of justice in resolving conflicts in the evidence
that its judgment must be reversed. Id.{¶17} A juvenile court may grant permanent custody if it finds that
permanent custody is in the child’s best interest and that one of the conditions in
R.C. 2151.414(B)(1) applies. Id. at ¶ 15. Here, father does not challenge the juvenile
court’s finding that the condition in R.C. 2151.414(B)(1)(d) was satisfied because the
child was in the temporary custody of HCJFS for 12 or more months of a consecutive
22-month period.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} The juvenile court found that clear and convincing evidence supported
the conclusion that permanent custody was in the child’s best interest under R.C.
2151.414(D)(2), which provides:
If all of the following apply, permanent custody is in the best interest
of the child, and the court shall commit the child to the permanent
custody of a public children services agency or private child placing
agency:
(a) The court determines by clear and convincing evidence that one or
more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or longer,
and no longer qualifies for temporary custody pursuant to [R.C.
2151.415(D)].
(c) The child does not meet the requirements for a planned permanent
living arrangement pursuant to [R.C. 2151.353(A)(5)].
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody of
the child.
{¶19} The juvenile court found that each of the four conditions in R.C.
2151.414(D)(2) was satisfied. With respect to the condition in R.C.
2151.414(D)(2)(a), the court found that three of the factors in R.C. 2151.414(E)
existed, specifically those in (E)(4), (10), and (12), even though only one of the
factors would have sufficed. Those conditions are:
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OHIO FIRST DISTRICT COURT OF APPEALS
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child;
(10) The parent has abandoned the child; and
(12) The parent is incarcerated at the time of the filing of the motion
for permanent custody or the dispositional hearing of the child and
will not be available to care for the child for at least eighteen months
after the filing of the motion for permanent custody or the
dispositional hearing.
R.C. 2151.414(E)(4), (10), and (12).
{¶20} With respect to the factor in R.C. 2151.414(E)(4), the juvenile court
found that A.W.’s mother had executed a voluntary permanent surrender of her
parental rights. The court also found that father had failed to have any contact with
the child, which was supported by the caseworker’s testimony that father had never
met or spoken with A.W.
{¶21} Because of the same lack of contact, the juvenile court found that
father had abandoned A.W., with respect to the factor in R.C. 2151.414(E)(10). A
child is presumed abandoned when the parents of the child have failed to visit or
maintain contact with the child for more than 90 days. R.C. 2151.011. Nothing in the
record rebuts the presumption of abandonment—the child was born in June 2017
and in the custody of HCJFS since April 2018, but father never had contact with the
child. Father acknowledges that he was incarcerated during the entirety of the
proceedings, and admits he received notice of the proceedings as early as October
2018. But he made no efforts to have contact with the child.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} The juvenile court found that the factor in R.C. 2151.414(E)(12) existed
because father was incarcerated and would not be available to care for the child for at
least 18 months after the filing of the permanent-custody motion or the dispositional
hearing, finding that his prison sentence did not end until July 2025. This finding
was supported by the caseworker’s testimony that father was incarcerated on a
narcotics-possession charge, and that he would go before the parole board in July
2022, but if denied parole, his projected release date would be July 2025. The
permanent-custody motion was filed in February 2020, and the dispositional hearing
occurred in February 2021. The court properly determined that father would not be
available to care for the child within 18 months of either the filing of the motion or
the dispositional hearing.
{¶23} Although father now asserts for the first time in his brief that he will be
eligible for parole in March 2022, and not July 2022, he put on no evidence at the
hearing to support this. Nevertheless, parole is not guaranteed. In re Lenix, 5th
Dist. Ashland No. 05-COA-039, 2006-Ohio-1294, ¶ 47. Courts have rejected
speculative release dates as establishing that a parent will be available to care for a
child within the 18-month timeframe in R.C. 2151.414(E)(12). Matters of J.F., 4th
Dist. Nos. 21CA2 and 21CA3, 2021-Ohio-2713, ¶ 48; Lenix at ¶ 47.
{¶24} Father does not dispute that each of the conditions in R.C.
2151.414(D)(2)(b) (that the child has been in agency custody for more than two years
and no longer qualifies for temporary custody) or R.C. 2151.414(D)(2)(c) (that the
child does not qualify for a planned permanent living arrangement) existed.
{¶25} Father does not specifically dispute the juvenile court’s finding that the
condition in R.C. 2151.414(D)(2)(d) existed, that is, that prior to the dispositional
hearing, no relative or other interested person filed a motion for custody. However,
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OHIO FIRST DISTRICT COURT OF APPEALS
to the extent that father asserts that the court should not have found that HCJFS
made reasonable efforts to return A.W. to his biological family, we address that
contention here.
{¶26} The term “reasonable efforts” describes “[t]he state’s efforts to resolve
the threat to the child before removing the child or to permit the child to return
home after the threat is removed.” (Citation omitted.) In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 28.
No one section of the Revised Code addresses the concept of
reasonable efforts. Overall, Ohio’s child-welfare laws are designed to
care for and protect children, “whenever possible, in a family
environment, separating the child from the child’s parents only when
necessary for the child’s welfare or in the interests of public safety.”
R.C. 2151.01(A). To that end, various sections of the Revised Code
refer to the agency’s duty to make reasonable efforts to preserve or
reunify the family unit.
Id. at ¶ 29.
{¶27} In particular, under R.C. 2151.419(A)(1), when a trial court removes a
child from the child’s home or continues the removal of a child from the child’s
home, the court must determine whether the agency “made reasonable efforts to
prevent the removal of the child from the child’s home, to eliminate the continued
removal of the child from the child’s home, or to make it possible for the child to
return safely home.” However, the statute applies only to various stages of the child-
custody proceeding, “all of which occur prior to a decision transferring permanent
custody to the state.” Id. at ¶ 41. Although father asserts that the statute required
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OHIO FIRST DISTRICT COURT OF APPEALS
HCJFS “to seek reunification with the paternal family of A.W.,” the statute requires
only reasonable efforts to return a child to “the child’s home.”
{¶28} The Supreme Court of Ohio has held that the requirement to make
reasonable efforts set forth in R.C. 2151.419(A)(1) does not apply to a hearing on an
R.C. 2151.413 motion for permanent custody. Id. In addition, the court noted that
under the circumstances identified in R.C. 2151.419(A)(2), “the law dispenses with
the duty to make reasonable efforts to reunify the family.” Id. at ¶ 34. One of those
circumstances is when “[t]he parent from whom the child was removed has
abandoned the child.” Id.; R.C. 2151.419(A)(2)(d). Here, HCJFS was not required to
make reasonable efforts to return the child to the child’s home or, assuming for the
sake of father’s argument, to the child’s family because, as the juvenile court found,
father abandoned A.W. See R.C. 2151.414(A)(2)(d). Father does not specifically
challenge that finding on appeal.
{¶29} In addition, father acknowledges that in this case, prior to the hearing
on the permanent-custody motion, the juvenile court made several findings under
R.C. 2151.419 that the agency had made reasonable efforts to return A.W. to his
home. The court, therefore, was not required to make a reasonable-efforts finding in
its entry granting permanent custody of the child to HCJFS. See In re C.F. at ¶ 42-
43.
{¶30} Following our review of the record, we hold that the juvenile court’s
determination that A.W.’s best interest is served by a grant of permanent custody is
supported by clear and convincing evidence, and is not against the manifest weight of
the evidence. Therefore, we overrule father’s assignment of error and affirm the
judgment of the juvenile court.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
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