In re Z.P.

[Cite as In re Z.P., 2017-Ohio-6987.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: Z.P., Y.P., D.P., J.H., AND P.H. : APPEAL NOS. C-160572
C-160584
: C-160620
TRIAL NO. F11-2431Z
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: July 28, 2017
Raymond T. Faller, Hamilton County Public Defender, and Robert Adam Hardin,
Assistant Public Defender, Appellant Guardian ad Litem for Z.P., Y.P., D.P., J.H., and
P.H.,
Raymond Becker, for Appellee Mother,
The Barbanel Law Firm, LLC, and Roberta J. Barbanel, for Appellee P.H., father of
J.H., and P.H.,
James W. Costin, In re Williams attorney for the children, Z.P., Y.P., D.P., J.H., and
P.H.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Lee Slocum, Assistant
Prosecuting Attorney, for Hamilton County Department of Job and Family Services.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} The guardian ad litem (“GAL”) for the children, Z.P, Y.P., D.P., J.H., and
P.H., has appealed from the juvenile court’s judgment denying the motion filed by the
Hamilton County Department of Job and Family Services (“HCJFS”) for permanent
custody, and awarding legal custody of the children to their mother.
Background
{¶2} Mother has three children, Z.P., Y.P., and D.P., from her relationship
with Y.P., Sr. The father of her other two children, P.H. and J.H., is her husband, P.H.
(“stepfather”).
{¶3} On October 26, 2011, HCJFS filed a complaint alleging that mother’s
five children were abused and dependent, after mother refused to cooperate with an
investigation into allegations that stepfather had sexually abused her then five-year-old
daughter, D.P. HCJFS alleged that the child had tested positive for gonorrhea, as did
stepfather. A magistrate of the Hamilton County Juvenile Court granted temporary
custody of the children to HCJFS, and HCJFS implemented a case plan for the family.
{¶4} In March 2012, HCJFS filed an amended complaint seeking permanent
custody of the five children. M.F., a paternal aunt, filed a petition for custody of Z.P.,
Y.P., and D.P. Then P.B.C., the maternal grandmother, petitioned for custody of all five
children.
{¶5} In October 2013, D.P. was adjudicated abused and dependent, and the
other four children were adjudicated dependent. Over the next several months, the
magistrate conducted 13 evidentiary hearings, culminating on July 7, 2014.
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OHIO FIRST DISTRICT COURT OF APPEALS
The Magistrate’s Decision
{¶6} After continuing the matter numerous times, the magistrate issued a
decision in July 2015, awarding legal custody of Z.P., Y.P., and D.P. to M.F., and
awarding permanent custody of P.H. and J.H. to HCJFS.
{¶7} In his decision, the magistrate discussed the evidence that had been
presented. He noted that mother had completed all of the recommended case-plan
services, including parenting and domestic-violence education, as well as individual
therapy. According to the Family Nurturing Center (“FNC”), mother had visited
consistently with her children and there was no concern about her contact with or care
for the children. In addition, mother had participated in some of D.P.’s therapy
sessions and was highly supportive of the child.
{¶8} With respect to D.P.’s contraction of gonorrhea, the magistrate
determined that D.P. had been the victim of sexual abuse, noting that stepfather had
tested positive and had been treated for gonorrhea contemporaneously with the child’s
diagnosis and treatment. The magistrate noted that police had conducted an
investigation into the likely sexual abuse of D.P. The child had been subjected to
forensic interviews in which she had identified stepfather as the perpetrator. She also
identified a 17-year-old person named “D.J.” as a perpetrator. Police were unable to
identify anyone named “D.J.”
{¶9} Stepfather submitted to, and failed, a police polygraph examination
about sexual misconduct with D.P. Stepfather claimed that the test results had been
skewed because he had been emotionally agitated and upset at the time. He later
passed a polygraph administered by an independent examiner.
{¶10} The magistrate noted that Rachel Rigg, D.P.’s longtime therapist,
testified that D.P. had never disclosed abuse by anyone named D.J., and that the child
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OHIO FIRST DISTRICT COURT OF APPEALS
consistently discussed abuse by her “dad,” whom she identified as stepfather. Rigg said
that D.P. had identified no potential perpetrator other than stepfather.
{¶11} The magistrate concluded that stepfather had sexually abused D.P., and
that mother, stepfather, and Y.P., Sr., lacked fitness to care for their respective children.
{¶12} The magistrate determined that mother was not an appropriate caregiver
for her children. The magistrate noted mother’s continuing insistence that D.P. had
contracted gonorrhea at birth, despite clear medical evidence to the contrary. Mother
disbelieved D.P.’s statements about sexual abuse and maintained that D.P.’s therapist
had influenced the child’s narrative of abuse. The magistrate found that mother would
not be dutiful in protecting D.P. from further abuse, and could not genuinely support or
participate in D.P.’s trauma therapy. The magistrate determined that mother was not
prepared to meet D.P.’s emotional and mental-health needs. In addition, mother
remained married to stepfather, despite her claim that they had separated. The
magistrate concluded that mother did not perceive stepfather as a risk to her children,
so it was unlikely that mother would adhere to court orders preventing stepfather from
having contact with the children.
{¶13} Consequently, the magistrate determined that an award of custody to
M.F. was in the best interest of Z.P., Y.P., and D.P. With respect to J.H. and P.H., the
magistrate determined, in accordance with R.C. 2151.414(D)(1), that an award of
permanent custody to HCJFS was in their best interest, and that the children should
not be placed with either parent, pursuant to R.C. 2151.414(E). Accordingly, the
magistrate awarded legal custody of Z.P., Y.P., and D.P. to M.F., and awarded
permanent custody of P.H. and J.H. to HCJFS.
{¶14} Objections to the magistrate’s decision were filed by mother, stepfather,
HCJFS, and the GAL. In addition, the GAL filed motions for in-camera interviews with
the children and to present additional evidence. The GAL noted that the last trial date
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OHIO FIRST DISTRICT COURT OF APPEALS
had been in July 2014 and that the magistrate had not issued his decision until a year
later. The juvenile court granted the GAL’s motions.
{¶15} Beginning in April 2016, the court took additional evidence over the
course of several more dates, and conducted in-camera interviews with the children.
The Juvenile Court’s Judgment
{¶16} On June 27, 2016, the court issued a judgment modifying the
magistrate’s decision. The court determined that M.F. was no longer a viable legal
custodian for Z.P., Y.P., and D.P., and that an award of permanent custody to HCJFS
was not in the best interest of any of the children. The court placed the children in the
legal custody of mother, with an order limiting the children’s contact with their fathers.
The trial court stayed its order pending appeal.
The Appeals
{¶17} The GAL and HCJFS appealed the court’s judgment, but HCJFS later
withdrew its appeal without explanation. In a single assignment of error, the GAL
argues that the juvenile court’s determination that mother had substantially remedied
the conditions that caused the children to be placed outside the home was contrary to
the weight of the evidence. The GAL argues that the trial court should have found that
mother failed to remedy the problems and that it was in the best interest of the children
to award permanent custody to HCJFS.
{¶18} A juvenile court’s determination on a motion for permanent custody
must be supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton
Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. “Clear and convincing evidence” is
evidence sufficient to “produce in the mind of the trier of fact[] a firm belief or
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OHIO FIRST DISTRICT COURT OF APPEALS
conviction as to the facts sought to be established.” Id., quoting In re K.H., 119 Ohio
St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42. In reviewing a juvenile court’s
determination on a permanent-custody motion, we must examine the record and
determine if the juvenile court had sufficient evidence before it to satisfy the clear-and-
convincing standard. Id.{¶19} R.C. 2151.414 governs the procedures a juvenile court must follow and
the findings it must make on a motion for permanent custody. Id. at ¶ 46. We will
apply the version that was in effect on the date that the motion for permanent custody
was filed, which in this case was March 8, 2012. See In re C.E.1, 1st Dist. Hamilton No.
C-140674, 2015-Ohio-5710; In re C.M., 1st Dist. Hamilton Nos. C-150365 and C-
150396, 2015-Ohio-3971, ¶ 13.
{¶20} Under former R.C. 2151.414(B)(1)(a), a juvenile court may grant
permanent custody of a child to the agency if the court determines by clear and
convincing evidence that the child cannot be placed with one of the child’s parents
within a reasonable time, or should not be placed with either parent, and determines
that permanent custody is in the child’s best interest.
Cannot or Should Not be Placed with Mother
{¶21} Under former R.C. 2151.414(E), the juvenile court must enter a finding
that a child cannot be placed with either parent within a reasonable time or should not
be placed with either parent if it determines by clear and convincing evidence that one
of the factors listed in former R.C. 2151.414(E)(1) through (16) exists as to each of the
child’s parents.
{¶22} In this case, the juvenile court found by clear and convincing evidence
that one or more of the factors in former R.C. 2151.414(E) existed as to each of the
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OHIO FIRST DISTRICT COURT OF APPEALS
fathers, but not as to mother. After considering each of the factors, the court concluded
that the children could be placed with mother, with orders limiting the fathers’ contact
with the children.
{¶23} The GAL contends that the juvenile court’s determination that the
children should be placed with mother was against the weight of the evidence.
Specifically, the GAL asserts that the evidence supported a finding under former R.C.
2151.414(E)(1) that mother had failed to remedy the conditions causing the children to
be placed outside the home. In addition, the GAL asserts that mother’s demonstrated
unwillingness and inability to provide a safe and adequate home for her children and to
prevent her children from suffering physical, emotional, or sexual abuse, supported
findings under former R.C. 2151.414(E)(4) and (14). We agree.
{¶24} As the juvenile court pointed out in its decision:
The main issue in this case throughout and the main issue still remaining
is whether the mother is capable of or willing to protect her children
from the fathers. This has been particularly true regarding [stepfather].
* * * The mother has held out from the beginning of this case, and still
does, that her husband did not commit that act. The concern of child
caring authorities is that the mother will not protect the children from
further abuse by [stepfather] and will cover up for him.
{¶25} The court determined that strong evidence indicated that stepfather had
“sexually abused his stepchild [D.P.] when she was 5 years old and that he sexually
transmitted the disease of gonorrhea to her,” but then stated that the evidence was “not
conclusive.” The court found, however, that “[t]he fact that the step-father lived with
the child; that both he and [D.P.] had gonorrhea at near the same time; and his
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OHIO FIRST DISTRICT COURT OF APPEALS
deception at the hospital and other times is strong evidence against him; especially
when coupled with [D.P.’s] statements.”
{¶26} The court noted that mother is still married to stepfather and continued
a close relationship with him, even though she “lamely” claimed to be separated from
him and living apart. The court noted that much of the concern regarding mother’s
willingness and ability to protect her children from stepfather stemmed from her
history of ignoring protective orders and her ongoing deceptive behavior. Early on in
the case, mother and stepfather had both violated an order that they have no
unsupervised contact with the children when they took D.P. to the hospital to demand a
rape kit, and then lied about their reason for the hospital trip. An early safety plan
required a family supervisor to be present at all times, but when HCJFS caseworkers
went to the home, no supervisor had been present. Mother and maternal grandmother
had actively attempted to thwart the physical removal of the children from the home.
Also, stepfather had visited with mother and the children, despite orders prohibiting
him from having contact with them, and mother had inappropriately recorded
statements by stepfather to be played for the children during her visits with them.
{¶27} Even after mother claimed to have separated from stepfather, the two
had been seen together on multiple occasions, including hospital visits, court hearings,
and visitation appointments. Mother and stepfather had arrived at an HCJFS meeting
together but had entered separately so as to appear not to be together. In addition, the
court noted, the two had appeared to “be in some type of financial arrangement along
with the grandmother in the purchase of the mother’s current home.” The court also
stated, “There were many other examples of mother’s and [stepfather’s] deceptive
actions that created HCJFS distrust regarding the mother’s willingness to overlook the
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OHIO FIRST DISTRICT COURT OF APPEALS
safety of her children in favor of her relationship with [stepfather] and hide it from
authorities.”
{¶28} In addition, the court recognized:
But the mother never satisfied the main requirement expected by
[HCJFS]; that is, to acknowledge that her husband sexually abused
[D.P.] and that she would discontinue association with him, forbid him
to be near the children and protect them from him. Throughout the
hearings, testimony and reports[,] there were indications that the
children would have been returned to the mother if she would
acknowledge her husband’s culpability with [D.P.].
{¶29} The court also noted that “mother still supports her husband and does
not believe that he sexually abused her daughter.” We note that mother has
consistently insisted that stepfather is not the perpetrator and therefore, we do not
believe she is capable of, or willing to, protect her children from him. This is true even
with court orders in place.
{¶30} We agree with the GAL that the evidence supported a finding by clear
and convincing evidence that mother failed to remedy the underlying problem that
initially caused her children to be removed from their home because she failed to
acknowledge the overwhelming evidence that stepfather had sexually abused her child.
See former R.C. 2151.414(E)(1). Mother’s conduct demonstrated her unwillingness to
provide an adequate permanent home for the children or to prevent them from
suffering abuse. See former R.C. 2151.414(E)(4) and (14). The record contained ample
evidence that the children should not be placed with mother. Moreover, given mother’s
well-documented history of ignoring court orders concerning stepfather’s contact with
the children and her deception about his ongoing involvement in their lives, the
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OHIO FIRST DISTRICT COURT OF APPEALS
likelihood of mother’s adhering to another order limiting stepfather’s contact with the
children was, at best, remote. The juvenile court should have entered a finding that the
children cannot be placed with mother. See former R.C. 2151.414(E).
Best Interest
{¶31} For the same reasons that the children should not be returned to their
mother, their best interest would not be served by returning them to her. In assessing
the best interest of a child for purposes of a permanent-custody determination, a
juvenile court must consider all relevant factors, including: (a) the child’s interaction
with parents, siblings, relatives, foster caregivers and out-0f-home providers, and any
other person who may significantly affect the child; (b) the wishes of the child; (c) the
custodial history of the child; (d) the child’s need for a legally secure placement and
whether that type of placement can be achieved without a grant of permanent custody;
and (e) whether any of the factors under former R.C. 2151.414(E)(7) to (11) apply.
Former R.C. 2151.414(D)(1)(a)-(e); In re K.G. at ¶ 16.
{¶32} In this case, the juvenile court discussed each of the best-interest factors
in its decision. With respect to the children’s interaction with significant others, the
court noted that the children had lived with mother until they were removed from her
home in 2011. At the time of removal, the children were ages eight, six, five, two, and 11
months. By the time of the court’s decision in 2016, the children had been out of
mother’s home for four and a half years. The court noted that the children love their
mother and are bonded to her.
{¶33} Mother’s three oldest children had a tumultuous relationship with their
father, Y.P., Sr. During their early years living with mother and Y.P., Sr., the children
witnessed incidents of domestic violence and sexual assault. Y.P., Sr., had been
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OHIO FIRST DISTRICT COURT OF APPEALS
incarcerated for much of his children’s lives, and had demonstrated no interest in his
children in recent years. The court noted that his children wanted nothing to do with
Y.P., Sr., and that they considered stepfather to be their “daddy.” Although mother’s
two youngest children had been removed from her care when they were two years old
and 11 months old, respectively, stepfather had visited with them and they had become
bonded to him.
{¶34} The court noted that the children’s current foster mother has a very close
relationship with the children and that the children are bonded to her. At the time of
the court’s decision, D.P. had been in the foster mother’s care for four years, and the
other children had been in her care for at least two years. The court noted that the
children have thrived in her home because she and her husband have addressed their
many needs. The court noted that the foster mother and her husband are willing to
adopt the children if permanent custody was awarded to HCJFS.
{¶35} In considering the wishes of the children, the court noted that the four
oldest children wanted to return to their mother and to stepfather. Although the
youngest was not sufficiently able to express his wishes, he clearly indicated that he felt
a part of the family with his father, siblings, and mother. The court further noted that
the children want to be adopted by their foster mother, “who they like and trust,” if they
cannot return to their mother and to stepfather.
{¶36} The court considered the custodial history of the children, reiterating
that the children had been in foster care since 2011 when the allegations of sexual abuse
arose. The court determined that the children no longer qualified for temporary
custody.
{¶37} Given our determination that the evidence supported a finding that the
children should not be returned to their mother, and considering the factors of former
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2151.414(D)(1), the court’s conclusion that the best interest of the children would
be served by returning them to mother was against the weight of the evidence.
Conclusion
{¶38} Following our review of the record, we hold that the juvenile court’s
determination to deny permanent custody to HCJFS was contrary to the evidence. See
In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46.
Accordingly, we hold that the juvenile court erred by denying HCJFS’s motion for
permanent custody and by remanding custody to mother. We sustain the assignment
of error. Consequently, we reverse the judgment of the juvenile court and remand this
matter for the court to enter judgment in favor of HCJFS on its motion for permanent
custody.
Judgment accordingly.
MOCK, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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