In re Z.H.

[Cite as In re Z.H., 2015-Ohio-3209.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: Z.H. : APPEAL NOS. C-150301
C-150305
: TRIAL NO. F06-2497z
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From is: Affirmed
Date of Judgment Entry on Appeal: August 12, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Phyllis Schiff, for Appellant Mother,
Erika N. Dority, Guardian Ad Litem for Appellant Mother,
Christopher P. Kapsal, for Appellant Z.H.,
Kacy C. Eaves, Guardian Ad Litem for Appellant Z.H.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S TAUTBERG , Judge.
{¶1} Z.H. and his mother each appeal the judgment of the Hamilton County
Juvenile Court granting the Hamilton County Department of Job and Family
Services (“HCJFS”) permanent custody of Z.H.
Z.H.’s Standing to Appeal
{¶2} This court has not addressed the issue of whether a child has standing
to appeal the termination of his parents’ parental rights.
{¶3} It is well-settled that any party who attempts to appeal a judgment
must have standing to invoke the jurisdiction of the appellate court. Ohio Contract
Carriers Assn. v. Pub. Util. Comm. of Ohio, 140 Ohio St. 160, 161, 42 N.E.2d 758(1942). To establish standing, appellant must show (1) an injury that is (2) fairly
traceable to the opposing party’s allegedly unlawful conduct, and (3) that is likely to
be redressed by the requested relief. Moore v. Middleton, 133 Ohio St.3d 55, 2012-
Ohio-3897, 975 N.E.2d 977, ¶ 22, citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “These three factors—injury,
causation, and redressability—constitute ‘the irreducible constitutional minimum of
standing.’ ” Moore, citing Lujan at 560.
{¶4} Here, Z.H. argues that he has standing to appeal the trial court’s
decision because his rights were prejudiced by the trial court’s decision. While Z.H.
does not elaborate on what “right” was affected, he does cite R.C. 2151.01(A) in
support of his position that children have a right to be raised by their natural
families. In pertinent part, R.C. 2151.01(A) provides that children subject to R.C.
Chapter 2151 should be cared for “in a family environment, separating the child from
the child’s parents only when necessary for the child’s welfare or in the interests of
public safety.” Based on this code section, we hold that a child that is the subject of a
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OHIO FIRST DISTRICT COURT OF APPEALS
permanent-custody proceeding has a legal interest in being cared for by his or her
natural parents.
{¶5} In this case, Z.H. had had counsel appointed for him pursuant to In re
Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110. At trial, Z.H.
advocated against a grant of permanent custody to HCJFS. He argued that his desire
to maintain a positive relationship with his mother would be adversely affected by a
termination of mother’s parental rights. Z.H.’s interest in being cared for by his
mother was injured when the trial court awarded custody to HCJFS, an opposing
party, thereby terminating mother’s parental rights. And Z.H.’s injury could be
redressed by this court if we were to reverse the trial court’s judgment. We therefore
hold that Z.H. has standing to bring this appeal.
{¶6} We note that this case is distinguishable from In re A.W., 1st Dist.
Hamilton No. C-120787, 2013-Ohio-909, and In re T.W., 1st Dist. Hamilton No. C-
130080, 2013-Ohio-1754. In each of those cases, we determined that appellants
lacked standing to appeal the granting of permanent custody to HCJFS because the
appellants in each case argued that a nonappealing third party should have been
granted legal custody of the children at issue. In other words, appellants in those
cases were attempting to assert someone else’s injury as the basis for their appeals.
Here, Z.H. is asserting his own injury.
The Merits of Mother’s and Z.H.’s Appeals
{¶7} In Z.H.’s single assignment of error, he contends that the trial court’s
judgment awarding permanent custody to HCJFS is not supported by sufficient
evidence. In mother’s sole assignment of error, she contends that the trial court’s
judgment is not supported by sufficient evidence, and is against the manifest weight
of the evidence. We address these assignments of error, together.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} A juvenile court may terminate parental rights and grant permanent
custody of a child to a children’s services agency if it finds by clear and convincing
evidence that (1) the child’s best interest would be served by a grant of permanent
custody to the agency, and that (2) one of the conditions enumerated in R.C.
2151.414(B)(1)(a) through (e) has been met. R.C. 2151.414(B); In re W.W., 1st Dist.
Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 48. Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶9} “Sufficiency of the evidence” is a term of art meaning that legal
standard which is applied to determine whether evidence is legally sufficient to
support a judgment. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541,
(1997). It is a test of adequacy. Id.; see Eastly v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517.
{¶10} When evaluating a claim that a judgment was contrary to the manifest
weight of the evidence, we must review the record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in the evidence, the trier 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. Thompkins at 387; State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1983). We note that deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
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OHIO FIRST DISTRICT COURT OF APPEALS
Best-Interest Factors
{¶11} In determining a child’s best interest, the court must consider “all
relevant factors,” including (1) the child’s interaction with parents, relatives, foster
caregivers, out-of-home providers, and any other person who may significantly affect
the child, (2) the wishes of the child, as expressed by the child or a guardian ad litem,
(3) the custodial history of the child, (4) the child's need for legally secure placement
and whether that type of placement can be achieved without a grant of permanent
custody, and (5) whether any of the factors under R.C. 2151.414(E)(7) through (11)
apply. R.C. 2151.414(D)(1)(a) through (e).
{¶12} Here, the trial court made detailed findings in regard to each factor.
Among other things, the court found that, while Z.H. is bonded with and loves his
mother, mother was unstable and struggled with what appears to be severe mental-
health issues. Mother had exhibited suicidal, manipulative, and delusional behavior,
some of which Z.H. had witnessed. Mother did not take part in the permanent-
custody proceedings. Moreover, she had apparently left the jurisdiction and had
refused to supply an address to the juvenile court. She had not seen Z.H. for over a
year at the time of trial. Father was not involved in Z.H.’s life.
{¶13} As for his custodial history, Z.H. had lived with his paternal
grandfather from birth until age three. He lived with mother for the next three years,
until she attempted suicide. HCJFS was then granted interim custody. During that
time, Z.H. was in and out of foster care, was difficult to control, and was hospitalized
for suicidal behaviors. When Z.H. was discharged from the hospital, HCJFS placed
him with his aunt, where he thrived. The court found that the time that Z.H. had
lived with aunt had been the most stable of his life. Aunt wishes to adopt Z.H., and
this cannot be done without first granting HCJFS permanent custody of Z.H.
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2151.414(B)(1)(a) Factor
{¶14} As to the R.C. 2151.414(B)(1)(a) through (e) factors, the court found
that R.C. 2151.414(B)(1)(a) existed in this case. R.C. 2151.414(B)(1)(a) provides that a
court may not grant a children’s services agency permanent custody of a child
without first determining that the child cannot be placed with either parent within a
reasonable time, or should not be placed with either parent. In making such a
determination, the court must find that at least one of the factors listed in R.C.
2151.414(E) has been established by clear and convincing evidence.
{¶15} Here, the court found that multiple R.C. 2151.414(E) factors existed.
Regarding father, the court found that father has had no involvement in Z.H.’s life,
and has not financially supported or regularly visited or communicated with his son.
See R.C. 2151.414(E)(4) and (10). As to mother, the court found that mother has
mental-health issues that have substantially interfered with her ability to parent
Z.H., and that were unlikely to be resolved within a year from the court’s custody
hearing. See R.C. 2151.414(E)(2). The court also found that mother had failed to
remedy the circumstances that had led to Z.H.’s removal from her home. See R.C.
2151.414(E)(1). Specifically, mother failed to engage in services, failed to attain
treatment for her mental-health issues, and continuously engaged in suicidal,
manipulative and delusion behaviors. See id. The court further determined that
mother’s behavior had had a negative impact on Z.H., because Z.H. had witnessed
mother arguing and fighting with neighbors and police. He also witnessed at least
one of mother’s attempts to commit suicide. See R.C. 2151.414(E)(16).
{¶16} Upon a review of the record, we hold that all of the court’s findings
under the best-interest factors and the R.C. 2151.414(B)(1)(a) factor were based on
sufficient evidence. Therefore, Z.H.’s assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} In regard to the weight of the evidence, mother claims that the trial
court should have afforded more weight to the fact that her son loves her, and wants
to be with her. Mother also points out that she has never physically harmed Z.H.
{¶18} We cannot say that the trial court so lost its way in weighing the
evidence presented as to create a manifest miscarriage of justice. We note that while
there is no evidence that mother ever physically harmed Z.H., Z.H. has been
adversely affected by witnessing several instances of aggression and suicidal ideation
by mother. Mother’s sole assignment of error is overruled.
{¶19} The trial court’s judgment is affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., and MOCK, J., concur.
Please note:
The court has recorded its own entry this date.
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