In re A.P. ( 2024 )

[Cite as In re A.P., 2024-Ohio-741.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: :
No. 23AP-253
[A.P., : (C.P.C. No. 21JU-7139)
F.S.G., Mother : (REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on February 29, 2024
On brief: Robert J. McClaren, for Franklin County Children
Services.
On brief: Victoria E. Ullmann, for appellant.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations, Juvenile Branch
JAMISON, J.
{¶ 1} Appellant, F.S.G., mother of A.P., appeals from a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, placing
A.P. in the permanent custody of appellee, Franklin County Children Services (“FCCS”).
For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} A.P. was born on September 10, 2019 to appellant and father, D.P. Appellant
and D.P. are not married. There is no dispute that FCCS has been working with the family
since August 2018 due to circumstances surrounding A.P.’s older siblings, E.G., P.G., and
A.J.P. See In re A.P., 10th Dist. No. 22AP-570, 2023-Ohio-2463 (“A.P. I”) (affirming the
No. 23AP-253 2
trial court’s determination that Permanent Court Commitment (“PCC”), is in the best
interest of P.G. and A.P.).1
{¶ 3} As a result of FCCS’s ongoing interactions and observations of the family,
FCCS received a Temporary Order of Protective Supervision for A.P. on November 17,
2020. A.P. was subsequently returned to appellant in February 2021 at the home appellant
shared with D.P., located on Burgess Avenue in Columbus, Ohio. An incident later occurred
at the home which led to charges of domestic violence and aggravated menacing against
D.P. D.P. subsequently pled guilty to a domestic violence charge, and he was placed on two-
years of community control with a stay away order relative to appellant. Appellant had also
been charged with domestic violence in the past, but she pled guilty to criminal mischief.
Appellant testified at the PCC hearing that her probationary period arising from her 2020
conviction had recently been extended.
{¶ 4} In March 2021, D.P. was observed at the Burgess Avenue home in apparent
violation of the stay away order. FCCS obtained a Temporary Order of Custody of A.P. on
March 17, 2021 and A.P. was temporarily placed in foster care. Appellant moved out of the
address she shared with D.P. in May 2021. Appellant subsequently reported she was living
with her brother, had a job, had completed a parenting class, completed four drug screens,
and attended four out of five visits with A.P.
{¶ 5} On July 21, 2021, FCCS filed a complaint alleging A.P. was a neglected child
under R.C. 2151.03(A)(2) and a dependent child under R.C. 2151.04(C) and (D). On
July 22, 2021, a magistrate found that placement of A.P. in appellant’s home was contrary
to her best interests and that FCCS had made reasonable efforts to prevent A.P.’s removal.
Pursuant to the order, appellant was permitted supervised visits with A.P. and required to:
(1) complete and follow the recommendations of a mental health assessment, an alcohol
and other drug assessment, a domestic violence assessment, and parenting classes; (2)
1 The complaint that leads to the case involving A.P.’s older siblings alleges that on August 18, 2018, E.P., P.G.,
and A.J.P. were found in the home without adult supervision, the front door open, and one sibling outside on
the swing with a blanket over his head and his diaper full of feces. According to the complaint, when FCCS
and local police went into the home, they observed the children in diapers and having a foul odor of urine,
feces, and dirt. The children also had dirt, dried feces, bite marks, and scabs on their bodies. The home was
observed to be in an unsanitary condition with no edible food. According to the complaint, when contacted,
appellant stated she could “no longer do it anymore,” and she wanted FCCS to take custody of her children.
(July 21, 2021 Compl. at 1.)
No. 23AP-253 3
complete random drug screens; (3) participate with the FCCS caseworker; and (4) attend
visits.
{¶ 6} Following a September 8, 2021 hearing, the trial court adopted the case plan.
On December 13, 2021, a magistrate adjudicated A.P. dependent.
{¶ 7} Kirsten Webb, who replaced Sierra Ellis as caseworker in September 2022,
testified that the current case plan, adopted by the juvenile court on November 1, 2021,
requires appellant to meet certain objectives, including: a legal source of income with
verification; obtaining appropriate housing free of hazards, with verification; a
psychological evaluation and follow-up; completing domestic violence batterer’s and/or
victim’s assessment and follow-up; random drug screening with third-party provider, Aver
health; participate in visitation; provide for all A.P.’s basic needs, including a link with WIC
upon A.P.’s return; notifying service team within 24 hours of any change of address or
contact information; and being available at least once per month for announced and/or
unannounced home visits.
{¶ 8} On October 19, 2021, appellant filed objections to the magistrate’s
September 18, 2021 decision granting Temporary Court Commitment (“TCC”). On
December 29, 2021, the trial court issued a judgment overruling appellant’s objections.
Appellant appealed to this court from the juvenile court judgment. On December 1, 2022,
this court issued a decision affirming the trial court’s judgment. In re A.P., 10th Dist. No.
22AP-62, 2022-Ohio-4295 (“A.P. II”).
{¶ 9} On January 27, 2022, FCCS filed a motion seeking PCC for A.P. On June 6,
2022, the trial court commenced a PCC hearing for A.P.’s two older siblings P.G. and A.J.P.
At the June 6, 2022 hearing, the trial court denied appellant’s motion to stay proceedings
on the PCC motion for A.P. The trial court went on to find PCC was in the best interest of
both P.G. and A.J.P. The judgment was later affirmed by this court in A.P. I.
{¶ 10} On February 27, 2023, the trial court commenced a four-day evidentiary
hearing on the motion. The trial court combined the trial of the PCC motion as to A.P. with
the PCC motion filed by FCCS as to A.P.’s older sibling E.G.2 Though D.P. participated in
proceedings in the trial court and completed certain aspects of the case plan related to A.P.,
he did not appear at the PCC hearing, and he has not appealed from the trial court judgment
2 E.G. has been permanently placed with his paternal grandmother in Nevada.
No. 23AP-253 4
granting PCC. At the PCC hearing, the trial court heard testimony from appellant, FCCS
caseworker Webb, and Guardian ad Litem (“GAL”), Kelley Boller. The June 6 and June 7,
2022 testimony of FCCS caseworker Ellis was also admitted into evidence by agreement of
the parties.
{¶ 11} On April 3, 2023, the trial court issued a decision and judgment entry
granting the motion for PCC and awarding permanent custody of A.P. to FCCS. Appellant
timely appealed to this court from the April 3, 2023 judgment.
II. ASSIGNMENTS OF ERROR
{¶ 12} Appellant assigns the following as trial court errors:
[1.] The manifest weight of the evidence shows that the trial
court failed to provide parents with all appropriate
constitutional and procedural rights during this proceeding
from its inception.
[2.] The trial court’s determination that F.S.G. suffers from
chemical dependency that prevents placement of A.P. with her
with a year is against the manifest weight of the evidence.
[3.] The trial court’s determination that mother abandoned
A.P. is against the manifest weight of the evidence.
[4.] The trial court’s finding that the juvenile court had
determined that F.S.G.’s children had been determined to be
neglected or dependent three separate times is against the
manifest weight of the evidence.
[5.] The trial court’s determination that F.S.G. suffers from
chronic mental illness that prevents placement of A.P. with her
within a year is against the manifest weight of the evidence.
[6.] The trial court’s determination that F.S.G. was convicted of
a “lesser offense of domestic violence” is against the manifest
weight of the evidence and proof of bias.
[7.] The trial court’s determination that mother could not
obtain housing in a reasonable period was against the manifest
weight of the evidence.
[8.] The trial court decision that the agency made reasonable
and diligent efforts to reunify the family is against the manifest
weight of the evidence.
No. 23AP-253 5
[9.] The trial court’s determination that F.S.G. failed to remedy
the problems that caused the case to open is against the
manifest weight of the evidence.
III. STANDARD OF REVIEW
{¶ 13} This court reviews a manifest weight challenge to a trial court’s judgment
granting PCC under the following standard:
In reviewing a judgment granting permanent custody to FCCS
under the manifest weight standard, an appellate court must
make every reasonable presumption in favor of the judgment
and the trial court’s findings of facts. If the evidence is
susceptible of more than one construction, we must give it that
interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the juvenile court’s
verdict and judgment. An appellate court will not overturn a
permanent custody order when it is supported by competent,
credible evidence.
(Internal citations and quotations omitted.) In re J.R., 10th Dist. No. 19AP-228, 2020-
Ohio-1347, ¶ 27, quoting In re E.B., 10th Dist. No. 16AP-352, 2017-Ohio-2672, ¶ 19. See
also A.P., I; In re T.L., 10th Dist. No. 20AP-591, 2021-Ohio-3221.
IV. ANALYSIS
{¶ 14} “Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children.” In re H.D., 10th Dist. No. 13AP-707, 2014-
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). “The Supreme Court of
Ohio recognizes the essential and basic rights of a parent to raise his or her child.” A.P. I at
¶ 9, citing In re Murray, 52 Ohio St.3d 155, 157 (1990). These parental rights are not
absolute, however, as a parent’s natural rights are subject to the ultimate welfare of the
child. In re Cunningham, 59 Ohio St.2d 100, 106 (1979). Indeed, the state may terminate
the parental rights of natural parents, under certain circumstances, when termination is in
the best interest of the child. A.P. I at ¶ 9, citing H.D. at ¶ 10, citing In re E.G., 10th Dist.
No. 07AP-26, 2007-Ohio-3658, ¶ 8.
{¶ 15} “ ‘[T]o terminate parental rights, the movant must demonstrate by clear and
convincing evidence that (1) termination is in the child’s best interests, and (2) one of the
four factors enumerated in R.C. 2151.414(B)(1) applies.’ ” In re A.E., 10th Dist. No. 07AP-
685, 2008-Ohio-1375, ¶ 13, quoting In re J.Z., 10th Dist. No. 05AP-8, 2005-Ohio-3285,
No. 23AP-253 6
¶ 10. See also R.C. 2151.414(B)(1) and (D). “ ‘Clear and convincing evidence is the measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the allegations sought to be established.’ ” A.E. at ¶ 13, quoting J.Z. at ¶ 10, citing In
re Abram, 10th Dist. No. 04AP-220, 2004-Ohio-5435, appeal denied, 104 Ohio St.3d 1441,
2004-Ohio-7033. “It does not mean clear and unequivocal” evidence and does not require
proof beyond a reasonable doubt.” (Internal quotation and citation omitted.) Abram at
¶ 14.
A. Statutory Grounds for PCC under R.C. 2151.414(B)
{¶ 16} R.C. 2151.414(B)(1) provides in relevant part as follows:
[T]he court may grant permanent custody of a child to a
movant if the court determines * * *, by clear and convincing
evidence, that it is in the best interest of the child to grant
permanent custody of the child * * * and that any of the
following apply:
(a) The child is not abandoned * * * 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.
***
(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.
{¶ 17} Here, the trial court found by clear and convincing evidence PCC was in A.P.’s
best interest and the grounds listed in R.C. 2151.414(B)(1)(a), (b), and (e) applied. This
court has previously explained that “[u]nder the statutory child custody scheme, if the
juvenile court finds, by clear and convincing evidence, that any of the grounds listed in R.C.
2151.414(B)(1) exist, the juvenile court must award custody to the moving party if it also
finds, by clear and convincing evidence, that it is in the best interest of the child to grant
permanent custody.” E.B. at ¶ 28; R.C. 2151.414(B).
{¶ 18} In the E.B. case, the trial court found the grounds for PCC listed in R.C.
2151.414(B)(1)(a) existed and alternatively, the grounds for PCC listed in R.C.
No. 23AP-253 7
2151.414(B)(1)(d) existed. This court concluded that the weight of the evidence supported
the finding under R.C. 2151.414(B)(1)(d), and further concluded PCC was in the children’s
best interest. In affirming the trial court, we held that even though the trial court erred in
finding the grounds listed in R.C. 2151.414(B)(1)(a) existed as to the children, that
erroneous finding could not have prejudiced appellant because the statutory scheme
requires the trial court to award custody to the moving party if it finds that any of the
grounds listed in R.C. 2151.414(B) exist and PCC is in the best interest of the children. Id.
at ¶ 27. See also In re C.C., 12th Dist. No. CA2011-11-113, 2012-Ohio-1291, ¶ 22-23
(appellant was not prejudiced by the trial court’s erroneous finding that children could not
be placed with the parents within a reasonable time under R.C. 2151.414(B)(1)(a), because
the evidence supported the alternative finding under R.C. 2151.414(B)(1)(b), that the
children were abandoned); In re Franklin, 3d Dist. No. 9-06-12, 2006-Ohio-4841, ¶ 16
(trial court’s erroneous finding that the children were within the agency’s custody for the
requisite time under R.C. 2151.414(B)(1)(d) was harmless error because the evidence
supported the trial court’s alternative finding that the children were abandoned under R.C.
2151.414(B)(1)(b)); In re L.C., 9th Dist. No. 29459, 2019-Ohio-5222 (trial court’s erroneous
findings under R.C. 2151.414(B)(1)(d) was harmless error because the evidence supported
the alternative finding under subsection (B)(1)(e)); In re S.W., 3d Dist. No. 9-18-29, 2019-
Ohio-2068, ¶ 22-23 (because the grounds for PCC listed in R.C. 2151.414(B)(1)(d) provided
an appropriate basis for the trial court to award permanent custody to the agency, the
question whether the evidence also supported the trial court’s finding under R.C.
2151.414(B)(1)(a) was moot).
B. Appellant’s Assignments of Error
{¶ 19} As FCCS points out, there are some glaring omissions from appellant’s merit
brief that raise concerns. For example, appellant does not challenge, by an assignment of
error or otherwise, the trial court’s conclusion that PCC is in A.P.’s best interest.
Accordingly, if we find that clear and convincing evidence supports any of the trial court’s
finding under R.C. 2151.414(B)(1), we must affirm the award of PCC. See R.C.
2151.414(B)(1). Additionally, there is no assignment of error directly challenging the trial
court’s conclusion that A.P. cannot or should not be placed with appellant under R.C.
2151.414(B)(1)(a). Rather, appellant challenges some but not all of the trial court’s
No. 23AP-253 8
predicate findings under R.C. 2151.414(E). As the trial court must award PCC to the agency,
pursuant to the grounds listed in R.C. 2151.414(B)(1)(a), if PCC is in the child’s best interest,
and clear and convincing evidence supports any one of the R.C. 2151.414(E) findings made
by the trial court, appellant’s failure to assign error or otherwise challenge the trial court’s
findings under R.C. 2151.414(E)(4) and (11), essentially prevents a reversal of the trial
court’s judgment in this case. E.B. at ¶ 59.3
{¶ 20} Despite the substantive irregularities in appellant’s merit brief, we will review
appellant’s assignments of error and any dispositive issues relevant to the PCC
determination in this case.
1. Grounds for PCC Under R.C. 2151.414(B)(1)(a)
{¶ 21} Our review of the trial court’s decision reveals that PCC was awarded to FCCS
primarily on the grounds listed in R.C. 2151.414(B)(1)(a). Under the heading “Conclusions
of Law Regarding Permanent Custody/Legal Custody,” the April 3, 2023 decision and
judgment entry provides in relevant part as follows:
[A.P.] was not in the temporary custody of the agency for more
than 12 months out of a consecutive 22-month period.
However, based on the existence of the factors under R.C.
2151.414(E) enumerated and detailed herein, the Court finds
by clear and convincing evidence that [A.P.] should not or
cannot be placed with either parent in a reasonable time due
to the applicable factors outlined above.
(Apr. 3, 2023 Decision and Jgmt. Entry at 25-26.)
{¶ 22} R.C. 2151.414(B)(1)(a) applies to A.P. if she is not abandoned, has not been in
the temporary custody of FCCS for 12 or more months of a consecutive 22-month period,
but she cannot be placed with either of the child’s parents within a reasonable time or
should not be placed with the child’s parents. For the trial court to make a finding that 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, the trial court must find that one or more of the
3 Appellant has made similar errors in briefing before this court. For example, in A.P. I, appellant failed to
separately argue her assignments of error in violation of App.R. 16(A)(7). Despite this non-compliance, we
addressed the arguments raised in appellant’s brief. Similarly, in the prior appeal in this case, A.P. II, appellant
again failed to separately argue her assignments of error. Even more concerning to this court, however, was
appellant’s failure to assign error as to an independent ground that would support the trial court’s decision.
A.P. II at ¶ 29 (“Because an unchallenged, independent ground supports the trial court’s decision and
judgment, appellant’s attempt to reach other issues on appeal necessarily fails.”).
No. 23AP-253 9
factors enumerated in R.C. 2151.414(E) exist. E.B. at ¶ 54. In this instance, the trial court
found the factors enumerated in R.C. 2151.414(E)(1), (2), (4), (10), (11), and (14) existed as
to A.P.
a. The Factor Enumerated in R.C. 2151.414(E)(4) Applies to A.P.
{¶ 23} R.C. 2151.414(E) provides in relevant part as follows:
If the court determines, by clear and convincing evidence * * *
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:
***
(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[.]
(Emphasis added.)
{¶ 24} As FCCS points out, the trial court’s finding that the factor enumerated in
R.C. 2151.414(E)(4) existed as to A.P. has not been directly challenged by appellant in an
assignment of error. However, in fairness to appellant, and because appellant’s seventh
assignment of error arguably challenges the adequate permanent housing element of R.C.
2151.414(E)(4), we will review the R.C. 2151.414(E)(4) finding under the manifest weight
standard.
{¶ 25} The testimony in the record establishes that appellant visited A.P. in April
2022, but that appellant subsequently left the state of Ohio in May 2022 and moved to
Utah. A.P. was two and one-half years old at the time. Appellant remained in Utah for
several months and did not return to Ohio until August 2022.
{¶ 26} Additionally, although appellant admits she returned to Columbus, Ohio on
August 24, 2022, she did not resume visits with A.P. until December 2022. Appellant has
asserted a variety of reasons for not immediately resuming visits with A.P. on returning to
Ohio. She testified she contacted Ellis when she returned from Utah, but that visitation was
not scheduled because FCCS was transitioning her case from Ellis to Webb. Appellant also
testified as follows:
No. 23AP-253 10
[Counsel for FCCS]. So, to your knowledge when was the first
time the visitation was actually set?
[Appellant]. Probably -- to be honest, I don’t know.
[Counsel for FCCS]. When was the first time you called in the
hour ahead?
[Appellant]. I do know that after I had [N.B.], I could not go
to visits as I was actually still healing. So, the first time I would
have called in had to have been after [N.B.] was at least four
months. So, that would be around December.
[Counsel for FCCS]. Okay.
JUDGE GILL: Is when the first time you called in for visits?
WITNESS: Yes.
[Counsel for FCCS]. And why couldn’t you do that before?
[Appellant]. Covid, I’m still -- I’m still -
[Counsel for FCCS]. Oh.
[Appellant]. - terrified and then having a newborn baby.
Taking her out to her doctor appointments alone is enough for
me so.
[Counsel for FCCS]. Okay. So, during that period, did you
work at all?
[Appellant]. Yes. I had two jobs actually.
[Counsel for FCCS]. Okay. What were the two jobs that you
did during -
[Appellant]. I was working at JCPenney and Bath & Body
Works.
(Mar. 1, 2023 Tr. at 123-24.)
{¶ 27} Appellant’s explanation for not visiting A.P. until December 2022 rings
hollow given her admission that she was working two jobs in the retail setting on her return
No. 23AP-253 11
to Ohio. Appellant also acknowledged that she made the trip from Utah to Ohio just days
after giving birth to her youngest child N.B.
{¶ 28} In recommending PCC for A.P., Ellis expressed her concern about appellant’s
commitment to A.P.:
[Counsel for FCCS]. Okay. Does it give you any type of concern
about mom’s missed visits?
[Ellis]. I’m -- I was so concerned that mom went to [Utah] for
a significant amount of time while were in the middle of this
and missing all of that. I’m concerned that, you know, -- you
know, if that did happen and it was an emergency the first
phone call upon landing should have been I want to see my
children again. You know, I’m -- I’m concerned about a lot --
a lot of that.
(Mar. 1, 2023 Tr. at 56.)
{¶ 29} The prolonged absence while appellant was in Utah demonstrates a lack of
commitment to A.P. Appellant acknowledges she left the state of Ohio in April 2022 and
did not visit A.P. again until December 2022, but she testified that she holds power of
attorney for her ailing mother and felt it necessary to go to Utah to care for her for several
months. She also maintained she informed FCCS she needed to be out of town and asked
to see A.P. before she left, but that could not be set up in time.
{¶ 30} To the extent appellant claimed in her testimony that FCCS did not offer her
telephone contact with A.P. while she was in Utah, a lack of commitment under R.C.
2151.414(E)(4) may be demonstrated by a failure of visitation alone. In re Walker, 3d Dist.
No. 5-05-22, 2005-Ohio-6563, ¶ 10; In re C.M., 8th Dist. No. 103704, 2016-Ohio-4568,
¶ 24. Thus, any alleged lack of effort on the part of FCCS to offer appellant telephone
contact with A.P. is not dispositive to the analysis under R.C. 2151.414(E)(4). Moreover,
the record does show that Ellis maintained some level of communication with appellant
while she was in Utah to facilitate the placement of E.G. with his paternal grandmother in
Nevada.
{¶ 31} Even if her mother’s health could be considered a justifiable reason for
appellant’s failure to visit A.P. from May to August 2022, appellant did not visit A.P. until
December 2022. Although appellant blames FCCS for taking her off the visitation schedule
while she was in Utah and for the subsequent delays in resuming visitation, the record
No. 23AP-253 12
shows that after appellant was placed back on the visitation schedule, she missed 6 of 13
scheduled visits.
{¶ 32} Webb testified that due to appellant’s prolonged failure to visit A.P. and
inconsistent visitation thereafter, FCCS has implemented special rules for appellant to
alleviate unnecessary hardships on A.P. and her foster mother. Appellant must call at least
one day prior to a scheduled visit to let the principals know if she intends to show up.
According to Webb, appellant has frequently been a no-call/no-show for scheduled visits
since she returned from Utah. Based on the evidence in the record, the trial court did not
err when it determined appellant demonstrated a lack of commitment to A.P. by failing to
visit her for nearly eight months.
{¶ 33} Appellant nevertheless claims by her seventh assignment of error that the
trial court erred when it found appellant is unwilling or unable to secure adequate housing
for A.P. We disagree.
{¶ 34} The trial court found that “the primary and prevailing concern is that [D.P.]
and [appellant] have not demonstrated their individual (or joint) ability to maintain a safe,
stable housing for any of their children, and in the instant [case], [A.P.].” (Apr. 3, 2023
Decision and Jgmt. Entry at 7.) The evidence admitted at trial overwhelmingly supports
the trial court’s findings. Indeed, the record shows that prior to the removal in March 2021,
the home that appellant shared with D.P. was often observed to be unsafe and unsanitary.
Ellis testified the problems she had observed in the home included inadequate or unusable
plumbing, an infestation of flies, damage to the walls and furniture, unclean and unsanitary
living space, and a lack of food. GAL Boller testified that they observed broken glass and
dog feces on the floor of the home appellant shared with D.P. The record shows that even
though these problems abated from time to time, the same problems persisted throughout
the case. The record also reveals that caseworkers and the GAL were frequently denied
access to appellant’s home.
{¶ 35} Though appellant moved in with her brother at his fiancée’s home in the
Columbus area after returning from Utah in August 2022, FCCS was never able to complete
a home inspection necessary to consider placing A.P. in the home. Appellant testified FCCS
harassed her brother and his fiancée by repeatedly making unscheduled visits to the home,
and that FCCS essentially forced her to move out.
No. 23AP-253 13
{¶ 36} Appellant’s testimony evidences her feelings of distrust and anger toward
FCCS dating back to 2018. The trial court made the following observation about appellant’s
willingness to cooperate with FCCS throughout this case:
Overall, it has been made clear throughout [appellant’s]
presentation to the Court in this matter and in companion
cases, that she (and [D.P.]) strongly felt the agency, (with the
exception of the first case worker assigned to their case), and
later the Guardian ad Litem, were biased against her, did not
provide reasonable efforts and in fact hindered her (their)
ability to reunify with [A.P.] (and all of their children). While
it is not unusual for parents’ and child service agency’s
relationships to be fraught with discord, this case is notably
particularly so. After a thorough review of the evidence in toto
and careful observation of the witnesses as testimony was
given herein, the Court finds that the agency, the case workers
and the guardian ad litem used their best diligent efforts,
reasonable case planning, including offering and/or providing
linkage with services and supports, to assist these parents to
remedy the problems that initially caused the placement of
[A.P.] in foster care and [D.P.] and [appellant] by their own
actions and inactions have failed continuously and repeatedly
throughout the pendency of this action to substantially
remedy the conditions that caused [A.P.] to be placed in foster
care within a reasonable time. This is notable, including but
not limited to, the parents’ interactions and threats to the
caseworker, refusal to maintain regular and ongoing contact
with the caseworker(s), refusal to consistently provide
information important to determination of his and her ability
to provide for the child’s basic needs and refusal to allow
access to their home for purposes of determining suitability
for the return of this child to their care.
(Apr. 3, 2023 Decision and Jgmt. Entry at 14-15.)
{¶ 37} The trial court’s assessment of appellant is borne out by her own testimony.
Though appellant denies telling Ellis she would “beat her ass,” during a home visit, she
admits raising her voice to Ellis and throwing Ellis out of her house on multiple occasions.
(Mar. 6, 2023 Tr. at 45.) Appellant testified she did not believe her attitude toward Ellis
was threatening, but she conceded that Ellis might see it that way. Appellant also admitted
throwing GAL Boller out of her house on at least one occasion. Even though appellant
testified she had a good working relationship with her prior case worker, Gloria Butler, she
admitted throwing Butler out of her house on one occasion. Ellis testified that her
No. 23AP-253 14
relationship with appellant was poor, and she recommended appellant undergo a
psychological examination as part of the case plan. Webb testified that appellant’s
demeanor toward her was less than cordial.
{¶ 38} Appellant testified that after leaving her brother’s fiancée’s house, she stayed
temporarily with friends and/or relatives before moving into a YMCA shelter on
January 28, 2023. According to appellant, she was initially admitted to the Van Buren
shelter in the “overflow program” from 8:00 p.m. to 8:00 a.m. (Feb. 27, 2023 Tr. at 39.)
Because she was able to maintain stable employment, appellant became a “legal resident”
of the shelter on February 17, 2023, which meant she had a relatively permanent spot in a
dormitory with 20 other female residents. (Feb. 27, 2023 Tr. at 39.)
{¶ 39} Appellant claims the shelter will permit her to have children stay with her
provided she can get space in the facility at another location. She also claims her name has
been placed on a list of candidates for permanent housing pending landlord approval. She
admitted, however, landlord approval is problematic due to her prior eviction in 2020. On
this record, we cannot say the trial court erred when it found that appellant showed a lack
of commitment to A.P. by conduct demonstrating an unwillingness to maintain suitable,
stable housing for A.P.
{¶ 40} Appellant’s failure to complete many of the case plan objectives is also
evidence of her lack of commitment to A.P. Webb testified appellant has not completed the
required AOD assessment or psychological assessment, she has not obtained stable housing
free of hazards, and she has not completed random drug screens. As of the date of the PCC
hearing, appellant had not yet executed a release for Webb to obtain relevant information
from the shelter and she has refused to execute a release for relevant information from her
parole officer.
{¶ 41} In our view, the weight of the evidence establishes appellant’s lack of
commitment toward A.P. by her failure to regularly support, visit, or communicate with her
when able to do so, and by other actions showing an unwillingness to provide an adequate
permanent home for A.P. Because clear and convincing evidence in the record supports
the trial court’s finding that the factor enumerated in R.C. 2151.414(E)(4) applies to A.P.,
the trial court was compelled to find, pursuant to R.C. 2151.414(B)(1)(a), A.P. could not be
No. 23AP-253 15
placed with appellant within a reasonable time or should not be placed with appellant. See
E.B., 2017-Ohio-2672, at ¶ 28.
{¶ 42} For the foregoing reasons, we overrule appellant’s seventh assignment of
error.
b. Alternative Factor Enumerated in R.C. 2151.414(E)(11)
{¶ 43} Even if we were to conclude the trial court erred when it found the factor
enumerated in R.C. 2151.414(E)(4) applied to A.P., the trial court’s finding that the factor
enumerated in R.C. 2151.414(E)(11) applies to A.P. has not been challenged by appellant in
an assignment of error or otherwise. R.C. 2151.414(E) provides in relevant part as follows:
If the court determines, by clear and convincing evidence, * * *
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:
***
(11) The parent has had parental rights involuntarily
terminated with respect to a sibling of the child pursuant * * *
and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination,
the parent can provide a legally secure permanent placement
and adequate care for the health, welfare, and safety of the
child.
(Emphasis added.)
{¶ 44} Because appellant has not contested the finding under R.C. 2151.414(E)(11),
the trial court was statutorily compelled to conclude, pursuant to R.C. 2151.414(B)(1)(a),
that the child could not be placed with a parent within a reasonable time or should not be
placed with a parent. In re P.B., 9th Dist. No. 23276, 2006-Ohio-5419, ¶ 13 (parents’ failure
to challenge the trial court’s finding under R.C. 2151.414(E)(11) compels the conclusion that
the child cannot be placed with either parent within a reasonable time).
{¶ 45} Moreover, if the parent has had parental rights involuntarily terminated with
respect to a sibling of the child, R.C. 2151.414(E)(11) places “ ‘the burden * * * on the parent
to provide clear and convincing evidence to prove that he or she can provide a legally secure
permanent placement and adequate care for the health, welfare, and safety of the child.’ ”
No. 23AP-253 16
In re N.J., 6th Dist. No. L-23-1114, 2023-Ohio-3190, ¶ 44, quoting In re J.H., 8th Dist. No.
105055, 2017-Ohio-940, ¶ 22, citing In re E.A., 9th Dist. No. 12CA0059-M, 2012-Ohio-
5925, ¶ 14.
{¶ 46} There is no dispute that appellant’s parental rights to two of A.P.’s siblings,
A.J.P. and P.G., were involuntarily terminated by the trial court prior to the PCC hearing in
this case, and that we subsequently affirmed the trial court’s decision in A.P. I. Appellant
has never claimed that she provided the trial court with clear and convincing evidence that
she can provide a legally secure permanent placement and adequate care for the health,
welfare, and safety of A.P. Rather, appellant has argued that FCCS has failed to meet its
burden of proof on numerous issues. Because the finding by the trial court that the factor
enumerated in R.C. 2151.414(E)(11) applies to A.P. is both unchallenged by appellant and
supported by the evidence in the record, the trial court did not err in concluding that A.P.
cannot be placed with appellant within a reasonable time or should not be placed with
appellant. See E.B. at ¶ 28. See also In re V.W., 10th Dist. No. 21AP-437, 2022-Ohio-2487,
¶ 57 (unchallenged findings under R.C. 2151.414(E)(7) and (E)(11) compelled the trial court
to conclude the child cannot be placed with either parent within a reasonable time or should
not be placed with either parent); P.B. at ¶ 13 (“[T]he trial court’s finding that P.B. could
not be placed with either parent within a reasonable time or should not be placed with
either parent is compelled by unchallenged findings pursuant to R.C. 2151.414(E).”).
c. Alternative Factors Under R.C. 2151.414(E)(1) and (2)
{¶ 47} In appellant’s second and fifth assignments of error appellant challenges the
trial court’s finding that the factor enumerated in R.C. 2151.414(E)(2) applies to A.P., and
in appellant’s ninth assignment of error, appellant argues the trial court erred when it found
that the factor enumerated in R.C. 2151.414(E)(1) applies to A.P.
{¶ 48} In our prior decision in this case, we noted that “ ‘[a]n appellate court need
not render an advisory opinion on a moot question or rule on a question of law that cannot
affect matters at issue in a case.’ ” A.P. II at ¶ 29, quoting In re C.C., 10th Dist. No. 04AP-
883, 2005-Ohio-5163, ¶ 23. We further explained that “ ‘[a]n appellate court is not required
to * * * rule on a question of law that cannot affect matters at issue in a case’ and,
accordingly, may ‘overrule * * * assigned error as moot.’ ” Id., quoting Bambeck v. Catholic
Dioceses of Cleveland, 8th Dist. No. 86894, 2006-Ohio-4883, ¶ 20.
No. 23AP-253 17
{¶ 49} Having previously determined that the trial court did not err when it found
the factors enumerated in R.C. 2151.414(E)(4) and (11) apply to A.P., the trial court was
statutorily compelled to conclude, pursuant to R.C. 2151.414(B)(1)(a), that A.P. could not
be placed with appellant within a reasonable time or should not be placed with appellant.
P.B. at ¶ 13. Accordingly, any error by the trial court regarding the factors enumerated in
R.C. 2151.414(E)(1) and (2) could not have prejudiced appellant. E.B. at ¶ 28.
{¶ 50} For the foregoing reasons, we overrule appellant’s second, fifth, and ninth
assignments of error.
2. Alternative Grounds for PCC Under R.C. 2151.414(B)(1)(b)
{¶ 51} In appellant’s third assignment of error, appellant argues the trial court erred
when it found that appellant abandoned A.P., because that finding is against the manifest
weight of the evidence. The trial court found A.P. was abandoned as that term is used in
R.C. 2151.011(C) which defines an abandoned child as follows:
For the purposes of this chapter, a child shall be presumed
abandoned when the parents of the child have failed to visit
or maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the
child after that period of ninety days.
(Emphasis added.)
{¶ 52} “R.C. 2151.011(C) does not contain a requirement of any particular ‘intent’ on
behalf of the parent; rather, the provision defines ‘abandonment’ solely in terms of the time
between contacts.” In re D.P., 10th Dist. No. 06AP-780, 2007-Ohio-1703, ¶ 7; see also In
re I.H., 10th Dist. No. 16AP-463, 2017-Ohio-815, ¶ 16; In re B.B.H., 10th Dist. No. 14AP-
882, 2015-Ohio-2347, ¶ 34; A.E., 2008-Ohio-1375, at ¶ 26. R.C. 2151.011(C) creates a
rebuttable presumption of abandonment when parents fail to have contact with the child
for a period of 90-days. D.P. at ¶ 7.
{¶ 53} There is no dispute that appellant failed to visit A.P. from May of 2022
through December of 2022. Appellant acknowledges she left the state of Ohio in April
2022, but argues that “[s]he holds power of attorney for her ailing mother and felt it
necessary to go to Utah to care for her for several months.” (Appellant’s Brief at 35.) The
record also shows that when she returned from Utah in August 2022, she learned she had
been taken off the visitors list pursuant to FCCS policy. Additionally, there was some delay
No. 23AP-253 18
in resuming visitation occasioned by the change of the caseworker from Ellis to Webb in
September 2022. Webb admitted that at least one of appellant’s scheduled visits was
cancelled due to a scheduling error by FCCS.
{¶ 54} Though we have concluded clear and convincing evidence shows appellant
demonstrated a lack of effort regarding her visits with A.P., on this record, we are reluctant
to conclude that appellant abandoned A.P. Nevertheless, having determined the trial court
did not err in concluding the grounds for PCC listed in R.C. 2151.414(B)(1)(a) exist as to
A.P., any error as to the alternative grounds listed in R.C. 2151.414(B)(1)(b) is harmless
error. E.B. at ¶ 59; Franklin, 2006-Ohio-4841, at ¶ 16; C.C., 2005-Ohio-5163, at ¶ 22-23.
Accordingly, we overrule appellant’s third assignment of error.
3. Alternative Grounds for PCC under R.C. 2151.414(B)(1)(e)
{¶ 55} In appellant’s fourth assignment of error, appellant contends the trial court
erred in finding that the grounds for PCC listed in R.C. 2151.414(B)(1)(e) exists as to A.P.
FCCS has not responded to appellant’s fourth assignment of error and has, therefore,
conceded error. Because we have determined, however, that the trial court did not err in
concluding the grounds listed in R.C. 2151.414(B)(1)(a) existed as to A.P., any error as to
the alternative grounds for PCC under R.C. 2151.414(B)(1)(e) could not have prejudiced
appellant. See E.B. at ¶ 59; Franklin at ¶ 16; C.C., 2005-Ohio-5163, at ¶ 22-23.
{¶ 56} Appellant’s fourth assignment of error is overruled.
C. Appellant’s Eighth Assignment of Error/Reasonable Efforts
{¶ 57} In appellant’s eighth assignment of error, appellant contends the trial court
erred in granting PCC because FCCS failed to make reasonable and diligent efforts to reunify
the family.
{¶ 58} “R.C. 2151.419(A)(1) provides that, at specified hearings, the trial court must
determine whether a public children services agency ‘has 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.’ ” A.P. I at ¶ 16, quoting R.C. 2151.419(A)(1). This statute applies to “adjudicatory,
emergency, detention, and temporary-disposition hearings, and dispositional hearings for
abused, neglected, or dependent children, all of which occur prior to a decision transferring
permanent custody to the state.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41.
No. 23AP-253 19
Because this statute makes no reference to a hearing on a permanent custody motion,
it does not apply to motions for permanent custody brought pursuant to R.C. 2151.413,
or to hearings held on such motions pursuant to R.C. 2151.414. Id.{¶ 59} An agency may not, however, file a motion for permanent custody “[i]f
reasonable efforts to return the child to the child’s home are required under [R.C. 2151.419,
and] the agency has not provided the services required by the case plan to the parents of
the child or the child to ensure the safe return of the child to the child’s home.” R.C.
2151.413(D)(3)(b). “Consequently, ‘[i]f the agency has not established that reasonable
efforts have been made prior to the hearing on a motion for permanent custody, then it
must demonstrate such efforts at that time.’ ” A.P. I at ¶ 17, quoting C.F. at ¶ 43; In re N.M.,
10th Dist. No. 20AP-158, 2021-Ohio-2080, ¶ 58. “Conversely, if the trial court finds, prior
to a permanent custody hearing, that the agency had made reasonable efforts to reunify the
family during the child custody proceedings, it is unnecessary for the trial court to make a
reasonable efforts finding in its permanent custody decision.” Id., citing In re J.H., 10th
Dist. No. 19AP-517, 2021-Ohio-807, ¶ 65.
{¶ 60} R.C. 2151.419(A)(2) sets forth the following exception to the reasonable
efforts requirement:
If any of the following apply, the court shall make a
determination that the agency is not required to make
reasonable efforts to prevent the removal of the child from the
child’s home, eliminate the continued removal of the child from
the child’s home, and return the child to the child’s home:
***
(e) The parent from whom the child was removed has had
parental rights involuntarily terminated with respect to a
sibling of the child pursuant to section 2151.353, 2151.414, or
2151.415 of the Revised Code or under an existing or former law
of this state, any other state, or the United States that is
substantially equivalent to those sections.
(Emphasis added.)
{¶ 61} As previously noted, FCCS has been awarded permanent custody of two of
A.P.’s siblings. See A.P. I. Thus, the trial court was not required to make a finding, in the
No. 23AP-253 20
context of this PCC proceeding, that FCCS had exercised reasonable efforts to return A.P.
to appellant.
{¶ 62} The trial court nevertheless made extensive findings regarding the efforts
made by FCCS to reunite appellant with A.P. The trial court also noted in the April 3, 2023
decision and judgment entry that “the agency’s reasonable efforts have been unchallenged
findings of this Court on several prior occasions.” (Apr. 3, 2023 Decision and Jgmt. Entry
at 6.) See (Oct. 4, 2021 Decision and Jgmt. Entry at 5), (Dec. 13, 2021 Jgmt. Entry, adopting
Mag.’s Decision at 2).
{¶ 63} We note that appellant’s primary complaint about FCCS is that FCCS failed
to provide cash assistance to appellant so she could pay her rent. Webb testified, however,
that she was unaware of any such program beyond the provision of bus passes and gas
cards, both of which have been made available to appellant. Moreover, appellant has
acknowledged that her current difficulty in finding a suitable rental home stems from her
prior eviction rather than a lack of funds. Webb testified that appellant’s willingness and
ability to find verifiable employment has been one of the case plan objectives that appellant
has satisfied.
{¶ 64} For the foregoing reasons, appellant’s eighth assignment of error is
overruled.
D. Appellant’s First Assignment of Error/Drug Testing and Due Process
{¶ 65} In appellant’s first assignment of error, appellant argues the trial court failed
to provide parents with all appropriate constitutional and procedural rights during this
proceeding from its inception. More particularly, appellant claims that FCCS violated her
constitutional and statutory rights when it ordered her to undergo periodic drug screening.
{¶ 66} The argument appellant makes in her first assignment of error was previously
considered and rejected by this court in A.P. II. In that case, appellant appealed from a
decision and judgment entry overruling appellant’s objection to a magistrate’s decision
granting TCC of A.P. to FCCS. In that case, appellant assigned the following error:
I. THE TRIAL COURT ERRED IN ORDERING ENDLESS
DRUG TESTING OF MOTHER IN VIOLATION OF THE 4th
AND 14TH AMENDMENTS TO THE CONSTITUTION.
No. 23AP-253 21
II. THE TRIAL COURT ERRED IN ORDERING ENDLESS
DRUG TESTING OF MOTHER IN VIOLATION OF
CHAPTER 2151 OF THE REVISED CODE.
III. THE TRIAL COURT ERRED IN GRANTING
TEMPORARY CUSTODY TO THE AGENCY BASED UPON
REFUSAL TO DRUG TEST.
(Emphasis sic.) A.P. II at ¶ 22.
{¶ 67} Our decision in A.P. II recognized that procedural irregularities in appellant’s
merit brief provided this court with alternative grounds to affirm the order appealed from.
We nevertheless undertook a substantive review of the drug testing requirements imposed
by the trial court and determined that no reversible error occurred. Id. at ¶ 32-33. The law
of the case doctrine provides that the decision of a reviewing court in a case remains the law
of that case on the legal questions involved for all subsequent proceedings in the case at
both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio St.3d 1, 5 (1984).
{¶ 68} Moreover, as is evident from our analysis of this appeal, appellant’s
objections to drug screening requirements of the case plan and her subsequent refusal to
submit to drug screenings was of little consequence either to our assessment of the relevant
evidence admitted at the PCC trial or our conclusions regarding the trial court’s PCC
determination.
{¶ 69} For the foregoing reasons, appellant’s first assignment of error is overruled.
E. Sixth Assignment of Error
{¶ 70} In appellant’s sixth assignment of error, appellant challenges the trial court’s
finding that appellant was convicted of a lesser-include offense of domestic violence.
According to appellant, this finding is erroneous, and evidences a bias or prejudice against
appellant on the part of the trial court.
{¶ 71} The trial court’s decision and judgment entry contains the following
statement: “[appellant] was criminally charge and ultimately pled to a lesser domestic
violence charge in 2020.” (Apr. 3, 2023 Decision and Jgmt. Entry at 12.) Appellant argues
she pled guilty and was convicted of malicious mischief, which is not a lesser-included
offense of domestic violence. The July 21, 2021 complaint corroborates appellant’s claim
that she was charged with domestic violence, but she pled guilty to malicious mischief. We
No. 23AP-253 22
note, however, appellant testified at trial that she was on probation for the offense of
domestic violence. See (Feb. 27, 2023 Tr. at 42.).
{¶ 72} In our view, the significance of the trial court’s finding is the
acknowledgement that appellant was not convicted of domestic violence. Under the
circumstances of this case, we cannot say that appellant was prejudiced by this relatively
minor error in the trial court’s decision and judgment entry. Appellant’s sixth assignment
of error is overruled.
V. CONCLUSION
{¶ 73} Having overruled appellant’s nine assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
LUPER SCHUSTER, J., concurs.
DORRIAN, J., concurs.
DORRIAN, J., concurring.
{¶ 74} As the majority notes, appellant has challenged some but not all of the trial
court’s predicate findings under R.C. 2151.414(E). In the third assignment of error,
appellant challenged the trial court’s finding under R.C. 2151.414(E)(10) that the child was
abandoned. R.C. 2151.414(E)(7) through (11) must be considered pursuant to R.C.
2151.414(D)(5) when determining best interest. In determining best interest, the trial court
expressly noted its finding that the child was abandoned pursuant to R.C. 2151.414(E)(10).
Therefore, I would construe appellant’s third assignment of error as challenging the trial
court’s determination as to best interest. In addition, because appellant challenged the trial
court’s finding that the child was abandoned, I would find appellant challenged the trial
court’s finding at R.C. 2151.414(B)(1)(b).
{¶ 75} Furthermore, in the first assignment of error, appellant challenged the trial
court’s finding under R.C. 2151.414(E)(1) regarding failure to remedy; in the second and
fifth assignments of error, appellant challenged the trial court’s findings under R.C.
2151.414(E)(2) regarding chemical dependency and mental illness; in the fourth
assignment of error, appellant challenged the trial court’s finding under R.C.
No. 23AP-253 23
2151.414(E)(11) regarding prior involuntary terminations of parental rights; and in the
seventh assignment of error, appellant challenged the trial court’s finding under R.C.
2151.414(E)(4) regarding failure to regularly support and unwillingness to provide
adequate permanent housing. Because R.C. 2151.414(E) requires consideration of all these
factors when determining whether the child cannot or should not be placed with a parent
within a reasonable time, I would construe these assignments of error to challenge the trial
court’s conclusion that A.P. cannot or should not be placed with appellant.
{¶ 76} Nevertheless, although the majority concludes that no challenges were made
to the best interest determination and the child cannot or should not be placed with
appellant determination, the majority addressed the merits of appellant’s arguments with
regard to the R.C. 2151.414(E) factors challenged. Therefore, the relevant challenges to best
interest and that the child cannot or should not be placed with appellant have been
addressed. I agree with the majority’s analysis.
{¶ 77} Accordingly, I concur with the majority and would affirm the trial court’s
judgment.
____________________