In re D.S.

[Cite as In re D.S., 2022-Ohio-515.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.S. : APPEAL NO. C-210579
TRIAL NO. F17-1331-X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 24, 2022
Jon R. Sinclair, for Appellant Father,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Daniel Monk,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Jeffrey A. McCormick, ProKids, for Appellee Guardian ad Litem for D.S.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Father has appealed the juvenile court’s entry granting permanent
custody of his child, D.S., to the Hamilton County Department of Job and Family
Services (“HCJFS”). In one assignment of error, father argues that the juvenile
court’s finding that D.S. cannot not be placed with him within a reasonable time, or
should not be placed with him was based on insufficient evidence and was against
the manifest weight of the evidence. See R.C. 2151.414(B)(1)(a). For the reasons that
follow, we overrule the assignment of error and affirm the judgment of the juvenile
court.
Factual and Procedural Background
{¶2} D.S. was born on March 18, 2017, to mother and father. Mother died of
a drug overdose while the case was pending. Father has also struggled with substance
abuse. On June 29, 2017, D.S. was adjudicated abused, neglected, and dependent.
Temporary custody was granted to HCJFS, and D.S. was placed in a foster home.
Father completed the case plan and was granted legal custody on November 8, 2018.
On December 2, 2019, interim custody was granted to D.S.’s paternal grandmother
(“grandmother”) after she raised concerns about D.S.’s safety when in father’s care.
Shortly thereafter, grandmother requested that D.S. be placed with his former foster
parents for his own safety due to grandmother’s concerns with father’s erratic
behavior. She testified:
[H]is dad would show up at the house unannounced. Threatened to
take [D.S], locked me out of my house. It was just a whole uproar for
[D.S.]. [D.S.] would cry. He would spend a few minutes with [D.S.] and
leave. At that time, he was living in his truck outside my home. Police
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were called numerous times for him showing up just screaming and
yelling at me. So, I reached out to the caseworker, and asked if his
former foster parents would be open to taking [D.S.].
{¶3} In response to grandmother’s concerns, interim custody was granted
to HCJFS on August 6, 2020. HCJFS filed a complaint for permanent custody on the
same day. On January 14, 2021, HCJFS filed a motion to dismiss its complaint, along
with a new complaint due to statutory timeframes. The court granted interim
custody to HCJFS on February 1, 2021. On March 15, 2021, again to due to statutory
timeframes, HCJFS filed another motion to dismiss its complaint, along with a new
complaint. D.S. was placed in the interim custody of HCJFS on the same day. D.S
was adjudicated neglected and dependent on May 25, 2021. The magistrate granted
permanent custody to HCJFS on June 10, 2021. On July 21, 2021, father filed a
motion for leave to file out of time and objections to the magistrate’s June 10, 2021
decision. On October 13, 2021, the court denied father’s objections and adopted the
magistrate’s decision, finding “numerous [R.C. 2151.414(E)] factors exist, though
only one is required to move on to a consideration of the best interest factors.” The
court found that the record “provide[s] a picture of the nature of father’s behaviors
that present a risk of harm to the child if in his care.”
{¶4} Father now appeals, challenging only one part of the court’s required
two-part finding, and asks us to remand the cause with a disposition for temporary
custody so he can pursue reunification.
Law and Analysis
{¶5} On appeal, we must “independently find that clear and convincing
evidence supports [the grant of permanent custody.]” In re C. Children, 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-190650, 2020-Ohio-946, ¶ 8, citing In re W.W., 1st Dist. Hamilton
Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. This requires appellate courts to
“examine the record and determine if the juvenile court had sufficient evidence
before it to satisfy the statutory clear-and-convincing standard.” In re W.W. at ¶ 46.
“Clear and convincing evidence produces ‘in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.’ ” In re K.S., 1st Dist.
Hamilton No. C-210479, 2022-Ohio-14, ¶ 18, citing In re K.H., 119 Ohio St.3d 538,
2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954).
{¶6} When we review for sufficiency of the evidence, “we scrutinize the
record to determine whether the juvenile court had sufficient evidence on each
element to satisfy the clear and convincing standard.” In re K.S. at ¶ 18, citing In re
L.M.B., 1st Dist. Hamilton Nos. C-200033 and C-200044, 2020-Ohio-2925, ¶ 8.
{¶7} When we review for manifest weight of the evidence, we must weigh
the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine “whether the court lost its way in resolving conflicts in the evidence,
which resulted in a manifest miscarriage of justice.” In re A.M., 1st Dist. Hamilton
No. C-190027, 2019-Ohio-2028, citing In re A.B., 1st Dist. Hamilton No. C-150307,
2015-Ohio-3247, ¶ 16.
{¶8} In order for permanent custody to be granted, HCJFS must satisfy
both parts of the two-part test found in R.C. 2151.414. First, the court must
determine whether HCJFS has shown that one of the conditions of R.C.
2151.414(B)(1) is satisfied. Then, HCJFS must demonstrate that permanent custody
is in the child’s best interest. See R.C. 2151.414(D)(1). Father challenges only the
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OHIO FIRST DISTRICT COURT OF APPEALS
first part of the court’s finding. As articulated by this court, the R.C. 2151.414(B)(1)
conditions include:
(1) “the child is abandoned”
(2) “the child is orphaned, and there are no relatives of the child
who are able to take permanent custody”
(3) at the time the agency files the motion for permanent custody,
“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
(4) none of the preceding conditions apply 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,” based on an analysis
under R.C. 2151.414(E).
In re J.H., 1st Dist. Hamilton No. C-210441, 2021-Ohio-4005, quoting In re W.W.,
1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, at ¶ 49, quoting
R.C. 2151.414(B)(1). In this case, HCJFS sought to prove the fourth condition: that
D.S. cannot be placed with father within a reasonable time, or should not be placed
with father.
{¶9} To make this determination, courts assess the factors in R.C.
2151.414(E). A finding by clear and convincing evidence that even one of the factors
exists is sufficient. In re H.R.H., 1st Dist. Hamilton No. C-210071, 2020-Ohio-3160,
¶ 17; In re William S., 75 Ohio St.3d 95, 99, 661 N.E.2d 738 (1996). These factors
include, in relevant part:
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OHIO FIRST DISTRICT COURT OF APPEALS
(1) Following the placement of the child outside the child’s home * * *
the parent has failed continuously and repeatedly to substantially
remedy the conditions causing the child to be placed outside the
child's home. In determining whether the parents have substantially
remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made
available to the parents for the purpose of changing parental conduct
to allow them to resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an
adequate permanent home for the child * * * ;
***
(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.
R.C. 2151.414(E)(1) – (16). The juvenile court found that R.C. 2151.414(E)(1), (2), (4)
and (10) were satisfied, though only one is needed. See In re H.R.H. at ¶ 17.
{¶10} First, the court noted in its entry on the objections that father has been
unwilling to participate in case-planning services, which prevented him from
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OHIO FIRST DISTRICT COURT OF APPEALS
remedying any of the conditions causing D.S. to be placed outside the home. R.C.
2151.414(E)(1). Father argues this is erroneous, and points out that there was no case
plan filed until June 9, 2021—two days after the dispositional hearing, and one day
before the magistrate granted permanent custody to HCJFS. While the record
confirms this, Barry Drizin, father’s caseworker, said in the dispositional hearing that
a case plan was approved by HCJFS in March 2021, but apparently never filed
because it was “under objections to the adjudication.”
{¶11} Testimony suggests though that even if a plan was filed earlier, father
would have continued to refuse any case-planning services. Drizin testified that, in
regard to case-planning services, “we never actually got to a point where we were
able to sit down and have that conversation,” because father would not sign the
release of information. The record contains extensive testimony from Drizin and
HCJFS case-worker Sherese Lewis about father’s repeated refusal to sign the release
of information necessary to engage in case-planning services and to visit with D.S.
Drizin testified that eventually, father blocked Drizin’s number and refused to
communicate with him at all, even after Drizin repeatedly explained the need to sign
the release. Drizin testified that “[father] made it clear that I am not to have contact
with him.” At a preliminary hearing before the permanent-custody trial—the only
hearing at which father appeared—when asked whether he thought “it might be a
good idea to sign the release of information,” father responded, “[n]o, I’m not gonna
sign them.” Father’s documented refusal to sign the release of information prevented
him from visiting D.S. and accessing case-plan services.
{¶12} Second, the court noted that father has “some mental health and
substance abuse issues that remain outstanding.” R.C. 2151.414(E)(2). Father argues
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OHIO FIRST DISTRICT COURT OF APPEALS
that there was no evidence of a particular mental-health diagnosis that would impact
his parenting, though he does not dispute his substance-abuse history. Lewis
testified that in November 2019, father was admitted to the University of Cincinnati
Psychiatric Emergency Services for hallucinations, and tested positive for
methamphetamines. David Goldey, father’s probation officer, also testified that
father tested positive for “amphetamines” on March 9, 2021. Grandmother testified
that she had tried several times to get father into substance-abuse and mental-health
treatment, but he refused. Grandmother also testified that father refused to follow
the recommendations of psychiatric providers. Drizin testified about father’s mental-
health struggles as well, noting that after being charged with theft and trespassing in
October 2020, he was transferred from the Hamilton County Justice Center to
Summit Behavioral Health for competency restoration. Goldey also testified that
father failed to participate in mental-health services as required by the mental-health
court. Father did not introduce any evidence demonstrating that he was addressing
either his mental-health or substance-abuse issues.
{¶13} Third, the court found father had not visited D.S. since September
2020. R.C. 2151.414(E)(4). This was largely due to father’s refusal to sign the release
of information. Drizin testified that father did not contact the agency “for an
extended period of time,” had not provided any financial support for D.S., and had
not communicated with D.S. or the foster family. At a preliminary hearing, father
demonstrated that he did not have a plan for housing if he were to get custody of
D.S., stating, “I figured JFS would help with housing.”
{¶14} Finally, the court found father had not contacted D.S. for more than
nine months. R.C. 2151.414(E)(10). The testimony above demonstrates that father’s
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refusal to sign the release of information prevented him from contacting D.S., and
that father was aware of this.
{¶15} After a thorough review of the record, we find that the court’s grant of
permanent custody to HCJFS was based on clear and convincing evidence. Father
does not dispute that permanent custody is in the child’s best interest, and the record
is replete with evidence that D.S. cannot be placed with father within a reasonable
time, or should not be placed with father.
{¶16} The trial court had sufficient evidence to satisfy the clear-and-
convincing standard in this case, and it did not lose its way in resolving conflicts in
the evidence. In light of the foregoing analysis, we overrule father’s assignment of
error and affirm the judgment of the trial court.
Judgment affirmed.
BERGERON, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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