In re H.J.

[Cite as In re H.J., 2018-Ohio-206.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION
H.J., NEGLECTED CHILD :
CASE NO. 2017-A-0068
:
Civil Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division,
Case No. 2016 JC 00084.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047, and Margaret A. Draper, Assistant Prosecutor, Ashtabula County Children
Services Board, 3914 C Court, Ashtabula, OH 44004 (For Appellee, Ashtabula County
Children Services Board).
Judith M. Kowalksi, 333 Babbitt Road, #323, Euclid, OH 44123 (For Appellant, Joshua
Javis).
Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor,
OH 44060 (Guardian ad Litem).
DIANE V. GRENDELL, J.
{¶1} Appellant, Joshua Javis, appeals the decision of the Ashtabula County
Court of Common Pleas, Juvenile Division, granting appellee, Ashtabula County
Children Services Board’s, motion for permanent custody. The issue before this court is
whether a parent may be found to have abandoned his child when he has failed to visit
or maintain contact with the child for over ninety days due to repeated hospitalizations
for mental illness and/or incarcerations in the county jail. For the following reasons, we
affirm the decision of the court below.
{¶2} On April 5, 2016, when H.J. was six days old, the juvenile court granted
Ashtabula County Children Services Board ex parte emergency temporary custody of
the child.
{¶3} On April 6, 2016, the Children Services Board filed a Verified Complaint
for Temporary Custody on the grounds of neglect, specifically that her mother, Desiree
Davis, “tested positive for marijuana at the [time of her] birth”; “all three of [H.J.’s]
siblings are currently in the Temporary Custody of ACCSB”; and “Desiree is currently
homeless and there are concerns of domestic violence between Desiree and Joshua
Javis (alleged father).”
{¶4} On the same day: “Mother stipulated to a finding of Probable Cause, and
stipulated that paternity has not been established for the child and that the alleged
father has not established any relationship with the child.”
{¶5} On May 2, 2016, H.J. was adjudicated a dependent child pursuant to R.C.
2151.04(C).
{¶6} On June 1, 2016, a dispositional hearing was held. The juvenile court
ordered H.J. to continue in the temporary custody of the Children Services Board. It
was noted that Javis had “failed to appear and had failed to submit to paternity testing.”
{¶7} On January 10, 2017, the Children Services Board filed a Motion
Requesting Modification of Temporary Custody to Permanent Custody.
{¶8} On April 18, 2017, the Guardian ad Litem Report was filed.
{¶9} On August 8, 2017, the permanent custody hearing was held.
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{¶10} On August 17, 2017, the juvenile court granted the Children Services
Board’s Motion for Permanent Custody. The court made the following relevant findings:
At the time of the child’s birth [March 31, 2016], Mother and
Father had one other child, J., who was in the Temporary Custody
of ACCSB. The child’s two half-siblings were also in the Temporary
Custody of the agency as of March 31, 2016.
Father was present at the child’s birth. Although he had
been arrested two days prior to her birth, Father had been released
on bond prior to the delivery. Mother was homeless at that time,
and no evidence was presented that Father had a stable residence
for the child.
Mother, who had been required to address drug and alcohol
concerns in the siblings’ existing case, tested positive for marijuana
when this child was born.
In addition to the drug and alcohol treatment and housing
issues addressed in the siblings’ case plan for Mother, Mother was
also required to address her mental health needs and complete a
parenting class. She had not done so by March 31, 2016.
Father was in and out of hospitals, and had been
incarcerated multiple times during this case. Father’s mental health
issues included bipolar disorder and post traumatic stress disorder.
He last saw the child in the Summer of 2016.
While in local jail, Father testified that he was not provided
any opportunities to satisfy any case plan goals. Father was
sentenced in felony cases, one of which was related to the
manufacturing of methamphetamine, in May 2017.
Since being incarcerated in prison in May 2017, Father
testified that he now has access to multiple programs. Father
explained that he is now demonstrating the initiative to participate in
drug treatment and 12-step meetings, parenting group, domestic
violence classes, anger management, and other programming
available to him. Father has received mental health services and is
taking medications. With medication, Father testified that he is
more stable and better able to function.
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Father expressed a strong desire to be a part of his
children’s lives. The sibling, [J.J.], is now in the legal custody of a
third party.
Father testified that it was in the best interest of the child that
she should have a chance to know her parents and her siblings.
Although Father expressed an appreciation for the child being
cared for in the foster home, Father recounted his difficult childhood
and his commitment to putting his life together. Father asked for
consideration from the Court, explaining that he deserves a chance.
Father denied having any contact with Mother in the three
months prior to the Permanent Custody hearing.
Father testified that his mother, the child’s Paternal
Grandmother, Patricia Pulsifer, is a potential placement for the
child. Paternal Grandmother, Patricia Pulsifer, is/was known to the
agency, and was determined not to be an appropriate placement
for the child. Paternal Grandmother was convicted of a felony for
taking drugs to Father while he was incarcerated. Father has no
other family except for a brother who was unable to care for this
child.
Sadie Duris, the ACCSB caseworker, worked with the family
since November 2016 when the case was transferred from the prior
caseworker, Dorothy Russell. Father acknowledged contact with
Ms. Duris on one occasion when he was in the county jail.
Ms. Duris testified that Mother failed to address her drug
abuse and mental health needs, failed to obtain stable housing and
income, and failed to complete a parenting class. Mother did not
complete any case plan requirements. The caseworker last saw
Mother in person on February 8, 2017.
Mother completed a mental health assessment on
September 24, 2015. The caseworker testified that Mother,
however, failed to comply with recommendations.
Mother made multiple attempts at drug treatment. After
failed attempts at treatment, Mother completed a residential
Turning Point program on June 29, 2016. It was recommended
that she complete additional outpatient treatment upon her release,
but she failed to comply with the recommendation when she
attended only ten sessions of an Intensive Outpatient Program.
The caseworker testified that Mother failed to help herself by
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addressing her substance abuse issue as required by the case
plan.
Mother did not complete a parenting class.
Mother does not have stable income or housing. Mother’s
whereabouts are unknown. On May 9, 2017, Mother refused to
provide the caseworker with a current address but did inform her
caseworker that Mother no longer lived at her parents’ home.
The caseworker had additional contact with Mother on
August 3, 2017 by messaging Mother on Facebook. Mother did not
wish to meet with the caseworker, and informed the caseworker
that Mother did not intend to appear at the Permanent Custody
hearing.
The child is doing well in the foster home where she resides
with a foster mother. The child plays and interacts with two other
foster children and the foster mother’s biological daughter, all of
whom reside in the home. There are no concerns with the home or
the care provided to the child in her foster home.
The child has biological siblings and she was provided visits
with her sibling [J.J.] until he was placed in legal custody of the third
party. The child no longer visits with her sibling [J.J.] or other
siblings.
Although the caseworker remained willing to work with
Father, Father remained incarcerated throughout this case with
continued incarceration through his anticipated release date of April
9, 2019. Father believes he will be able to earn an early release,
and has informed himself of programs that will assist him in
attaining stability within 90 days of his release.
Father understands that he made poor choices that led to his
incarceration.
Ms. Duris and the Guardian ad litem testified that the
children [sic] need legally secure permanent placement only
possible with the grant of permanent custody, and that the foster
mother expressed a commitment to adopt the child.
{¶11} On September 19, 2017, Javis filed a notice of appeal. On appeal, he
raises the following assignments of error:
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{¶12} “[1.] The decision to award permanent custody was against the manifest
weight of the evidence.”
{¶13} “[2.] The juvenile court erred to the prejudice of the appellant by finding
that the father had abandoned the child.”
{¶14} Upon the motion of a public children services agency requesting
permanent custody of a child pursuant to R.C. 2151.413, the juvenile court may grant
the motion “if the court determines at the hearing held pursuant to [R.C. 2151.414(A)],
by clear and convincing evidence, that it is in the best interest of the child to grant
permanent custody of the child to the agency that filed the motion for permanent
custody and * * * [t]he child is abandoned.” R.C. 2151.414(B)(1)(b); In re C.W., 104
Ohio St. 3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 8-22.
(1) In determining the best interest of a child * * *, the court shall consider
all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D).
{¶15} The Ohio Supreme Court “has defined clear and convincing evidence as
‘that measure or degree of proof which is more than a mere “preponderance of the
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evidence,” but not to the extent of such certainty as is required “beyond a reasonable
doubt” in criminal cases, and which will 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, quoting Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶16} When reviewing the weight of the evidence, the reviewing court “weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost
its way and created such a manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.” (Citation omitted.) Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. “In weighing the evidence, the court
of appeals must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶17} For clarity, we shall address the second assignment of error first.
{¶18} Javis claims the juvenile court erred by finding that he had abandoned the
child.
{¶19} “For the purposes of this chapter [R.C. Chapter 2151], 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.” R.C. 2151.011(C).
{¶20} In the present case, it is undisputed that Javis has not seen or otherwise
had any contact with H.J. since the summer of 2016 (about six months prior to the filing
of the motion for permanent custody). Javis asserts that his “inability to communicate or
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visit with her was beyond his control” inasmuch as he “was incarcerated [and] also
underwent hospitalization for mental illness during this time period.” Appellant’s brief at
12.
{¶21} The record before this court supports the finding of abandonment.
Beyond failing to maintain contact with H.J., Javis has contributed nothing to her
support. Javis has not attended a single hearing (except the permanent custody
hearing) or case review relating to H.J. Javis was dilatory in establishing paternity of
H.J. Despite being ordered to submit to a paternity test in April 2016, Javis did not
formally establish paternity until 2017. Javis did not request visitation with H.J.
{¶22} Javis was in contact with H.J.’s mother during this time, and she would “let
[him] know how the visits were going with the kids” before they eventually “just stopped
talking” (about three months before the permanent custody hearing). Javis was at least
aware of who the caseworker and the guardian ad litem for H.J. were, but made no
effort to be involved with H.J. through them.1 Javis testified that he was “placed in North
Coast Behavioral Hospital a couple of times” and had “been in and out of the County
Jail for bond revocations and re-bonding and back and forth.” Javis’ legal and mental
health issues do not negate his failure to make any positive effort to care for or
otherwise be involved in H.J.’s life. In re Bailey Children, 5th Dist. Stark No. 2004 CA
00386, 2005-Ohio-2981, ¶ 32 (“[a]lthough appellant was aware that the children had
been removed from their mother’s care and had been possibly placed in foster care, he
1. The guardian testified: “I haven’t seen Mr. Javis since the birth of [H.J.]. I saw him briefly with one of
his other children, [J.J.], the one that was taken into temporary custody. He appeared at the Court and
rapidly left before the hearing, and I haven’t seen him since then.” The caseworker testified: “I met with
[Javis] once kind of accidental in the County Jail and talked with him there.”
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admitted to making no attempt to contact SCDJFS or the mother to determine their
status”).
{¶23} The case of In re C.S., 9th Dist. Summit No. 25344, 2010-Ohio-4463,
relied upon by Javis, is wholly distinguishable inasmuch as the mother was not found to
have abandoned her child but, rather, “was not permitted to have any visitation or other
contact with her daughter for nearly eighteen months during this case.” Id. at ¶ 9. Javis
cannot claim to have been denied visitation if he never sought visitation in the first
place.
{¶24} The second assignment of error is without merit.
{¶25} In the first assignment of error, Javis argues in general that the decision to
terminate his parental rights was against the weight of the evidence. He notes that “the
State presented very little evidence in support of its motion for permanent custody.”
Appellant’s brief at 9.
{¶26} The dearth of evidentiary material in the present case reflects Javis’ own
failure to establish any relationship with the minor child. There was sufficient evidence,
particularly in regard to H.J.’s need for a legally secure permanent placement, for the
juvenile court to have made a valid determination of H.J.’s best interests. The court
determined “by clear and convincing evidence that the best interests of the child are
served by granting permanent custody to ACCSB.” The evidence duly supports this
determination.
{¶27} The first assignment of error is without merit.
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{¶28} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, Juvenile Division, granting permanent custody of H.J. to the Ashtabula
County Children Services Board is affirmed. Costs to be taxed against the appellant.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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