In re Z.C.

[Cite as In re Z.C., 2022-Ohio-3199.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
IN THE MATTER OF: CASE NO. 2022-A-0014
Z.C., DEPENDENT/NEGLECTED CHILD
Civil Appeal from the
Court of Common Pleas,
Juvenile Division
Trial Court No. 2019 JC 00015
OPINION
Decided: September 9, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Appellee, Ashtabula
County Children Services Board).
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Appellant,
D.C., Sr.).
Joseph K. Palazzo, Kurt Law Office, LLC, 4770 Beidler Road, Willoughby, OH 44094
(Guardian ad litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, D.C., Sr. (“Father”), appeals from the March 2, 2022 judgment of
the Ashtabula County Court of Common Pleas, Juvenile Division, granting permanent
custody of Z.C., a minor child, to the Ashtabula County Children Services Board
(“ACCSB”). For the reasons set forth herein, the judgment is affirmed.
{¶2} In January 2019, the Ashtabula County Children Services Board (“ACCSB”)
began looking into concerns related to eight children who lived with their mother and
Benjamin Tressler, Sr. Shortly thereafter, ACCSB was granted temporary custody of the
eight children. Father is the biological father of four of the eight children and did not reside
with them at any point during the ACCSB investigation and subsequent legal proceedings
as he and their mother were no longer together. This appeal pertains to only one of
Father’s children, Z.C.
{¶3} Father’s four children were initially placed with their paternal grandfather,
though they were later removed due to allegations of abuse. Six of the eight children, not
including Z.C. and his half-brother, L.T., were placed with kin; those families were
ultimately granted legal custody of the six children. Unfortunately, the families were
unable to take all the children, and Z.C. and L.T. were placed in foster case. They have
remained with the same foster family since March of 2020. ACCSB has since been
granted permanent custody of L.T., and the foster family wishes to adopt both L.T. and
Z.C.
{¶4} Father first contacted ACCSB in March 2019, and then again upon his
release from prison for a parole violation in April 2020. He demanded custody of his
children but declined to be added to the case plan. Instead, Father filed a motion for legal
custody of Z.C. on May 11, 2020 in the juvenile court. On August 13, 2020, ACCSB filed
a motion to modify temporary custody to permanent custody. Ultimately the court
terminated Father’s parental rights and granted permanent custody of Z.C. to ACCSB.
Father filed objections to the magistrate’s decisions, which the court overruled in March
2022. This appeal followed.
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{¶5} Father’s assigned errors are related and will be addressed together. They
state:
{¶6} [1.] The Ashtabula County Juvenile Court erred and abused its
discretion in finding that clear and convincing evidence supported
granting permanent custody of the subject child to the Ashtabula
County Department of Children and Family Services.
{¶7} [2.] The Juvenile Court erred to the prejudice of the appellant and
against the best interest of the child by granting permanent custody,
as permanent custody serves to permanently separate the child and
his siblings on both a legal and physical basis.
{¶8} Pursuant to R.C. 2151.414(B), before a juvenile court may terminate
parental rights and award permanent custody of a child to a proper moving agency, it
must find clear and convincing evidence of both prongs of the permanent custody test.
First, it must find one of the following factors applies: (1) that the child is abandoned;
orphaned; has been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period; the child or another child of the same parent has been
adjudicated abused, neglected, or dependent three times; or that the child cannot be
placed with either parent, based on an analysis under R.C. 2151.414(E). Second, the
court must determine that the grant of permanent custody to the agency is in the best
interest of the child. R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S.,
75 Ohio St.3d 95, 98-99 (1996).
{¶9} “In determining the child’s best interest under the second prong, R.C.
2151.414(D) requires that the juvenile court consider all relevant factors, including, but
not limited to, the following: (1) the interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) the wishes of the child as
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expressed directly by the child or through the child’s guardian ad litem, with due regard
for the maturity of the child; (3) the custodial history of the child; and (4) 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.” In re C.C., 11th Dist.
Trumbull No. 2016-T-0050, 2016-Ohio-7447, ¶80.
{¶10} If both prongs of the foregoing test are met by clear and convincing
evidence, the trial court may terminate the rights of a natural parent and grant custody of
the child to the moving party. “Clear and convincing evidence” is evidence sufficient to
“produce in the mind of the trier of fact 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, ¶42. We will not
substitute our judgment for that of the trial court applying a clear-and-convincing standard
where there is ample competent and credible evidence supporting the trial court’s
determination. See In re A.J.O. and M.N.O., 1st Dist. Hamilton No. C-180680, 2019-Ohio-
975, ¶6.
{¶11} Moreover, an appellate court reviews a trial court’s determination of
permanent custody and the termination of parental rights for an abuse of discretion. In
re Snow, 11th Dist. Portage No. 2003-P-0080, 2004-Ohio-1519, ¶28. See also, In re D.F.,
2d Dist. Montgomery Nos. 29350 and 2016-CA028, 2022-Ohio-1781, ¶23; In re L.S., 8th
Dist. Cuyahoga No. 109995, 2021-Ohio-510, ¶51; Matter of T.L., 7th Dist. Jefferson No.
19 JE 0013, 2019-Ohio-4919, ¶18; and Matter of W.G., 7th Dist. Jefferson No. 22 JE
0002, 2022-Ohio-2342, ¶23. “Further, we review a judgment of the trial court adopting
the decision of its magistrate for an abuse of discretion.” Molzon v. Molzon, 11th Dist.
Ashtabula No. 2021-A-0024, 2022-Ohio-1634, ¶51. An abuse of discretion is the trial
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court’s “failure to exercise sound, reasonable, and legal decision-making.” State v.
Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law
Dictionary 11 (8 Ed.2004). “The highly deferential abuse of discretion standard is
particularly appropriate in allocation of parental rights and responsibilities cases since the
trial judge is in the best position to determine the credibility of the witnesses and there
‘“may be much that is evident in the parties’ demeanor and attitude that does not translate
well to the record.”’” Molzon, supra, at ¶53 quoting In re K.R., 11th Dist. Trumbull No.
2010-T-0050, 2011-Ohio-1454, ¶30, quoting Wyatt v. Wyatt, 11th Dist. Portage No. 2004-
P-0045, 2005-Ohio-2365, ¶13.
{¶12} In this case, as to the first prong of the test, there is no dispute that Z.C.
was in the temporary custody of ACCSB for more than 12 out of a consecutive 22-month
period at the time the court granted ACCSB permanent custody. Instead, Father’s
argument focuses on the determination that permanent placement was in Z.C.’s best
interest.
{¶13} Specifically, Father argues that ACCSB should have done more to help
engage Father; that the legal custodians of the six other children agree to keep the
children connected to each other and Father, and that the guardian ad litem (“GAL”) did
not recommend a grant of permanent custody. He argues, that taken together, the facts
do not support a firm belief that permanent custody is the appropriate disposition.
Additionally, Father argues that permanent placement is not in the best interest of Z.C.
primarily due to the risk of severing his relationship with his siblings. In support, he cites
In re D.F., 8th Dist. Cuyahoga No. 108055, 2019-Ohio-3046, which emphasized the
importance of maintaining sibling relationships.
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{¶14} However, In re D.F. is factually distinguishable from the case at bar.
Crucially, the mother in that case substantially complied with the case plan and had
consistent contact with her child all throughout the process. Id. at ¶11 and ¶38. The
reviewing court noted that it was not the case in which the children were at any point out
of contact with their mother. Id. at ¶38. Additionally, “[t]his family unit, when in Mother’s
care, is safe, happy and enjoys the company of one another. * * * The plan here was
always reunification. Mother had done all the work to have her children returned to her.
This family should be together.” Id. at ¶54 and ¶55. In short, the mother in that case had
consistent contact with her children and made substantial progress with the case plan,
could meet the children’s basic needs, was compliant with the mental health services,
and was very bonded to her children.
{¶15} The facts here are distinguishable. Father’s actions while the children were
in the custody of ACCSB support the juvenile court’s conclusion that permanent
placement was in Z.C.’s best interest. When Father reached out to ACCSB in March
2019, he informed them that he didn’t have a house big enough for all his children, and
that he had not had contact with them for approximately three years. Throughout the
pendency of the case, Father moved into a house that was under renovation but never
followed through on a home visit, purportedly due to COVID-19 concerns. He had some
contact with some of his children, though one of his sons declined to talk with him because
the child said Father had hurt his feelings. He did not have the technical requirements to
have video calls with Z.C. and declined to have telephone calls with Z.C. because they
were supervised. Father also stated that he wished to have visits with Z.C. but
consistently maintained he did not want to be added to the case plan. He did not
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cooperate with ACCSB and failed to keep appointments to meet with the case worker.
Even after Father was appointed counsel and was informed of the importance of being
included in the case plan, he did not follow through. On the other hand, Z.C. has been
with his foster family and half-brother since March of 2020 and is closely bonded with
them.
{¶16} Father also argues that the court erred in granting permanent placement
because the GAL did not recommend permanent placement with ACCSB; however, the
GAL was also unable to recommend placement with Father because he was not able to
see them interact. The juvenile court was not convinced that placement with Father was
better for the children than a grant of permanent custody to ACCSB, and in light of the
evidence in the record, we discern no error.
{¶17} Finally, as Father correctly points out, in Ohio there is no statute that
provides protections for relationships between adopted children and their biological
siblings. However, adoption does not automatically or necessarily preclude contact
between an adopted child and their biological siblings. The families who have custody of
six of Z.C.’s siblings have expressed a willingness to keep the children in contact. Though
there was some concern expressed about their present ability to connect with Z.C., the
record shows some contact between Z.C. and his siblings during the pendency of these
proceedings. The juvenile court ultimately gave greater weight to the past practice of the
adoptive families than Father’s promise of future behavior in keeping the family together.
{¶18} After careful consideration of the record before us, we cannot agree that the
trial court abused its discretion in adopting the magistrate’s decision, terminating Father’s
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parental rights and granting ACCSB’s motion for permanent placement. Accordingly,
Father’s assigned errors are without merit.
{¶19} We recognize that by applying an abuse of discretion standard of review
our decision is in conflict with the judgment of the Sixth District Court of Appeals in In re
S.V., 6th Dist. Wood No. WD-13-060, 2014-Ohio-422; the Fifth District Court of Appeals
in Matter of Y.M., 5th Dist. Tuscarawas Nos. 2021 AP 09 0020 through 0023, 2022-Ohio-
677; and the Fourth District Court of Appeals in Matter of Ca.S., 4th Dist. Pickaway Nos.
21CA9 and 21CA10, 2021-Ohio-3874, ¶44, which apply a manifest weight of the evidence
standard, and the First District in In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-
110402, 2011-Ohio-4912, which applies a clear and convincing evidence standard, and
the Twelfth District in In re R.B., 12th Dist. Butler Nos. CA2022-01-003 and CA2022-01-
004, 2022-Ohio-1705, which applies a sufficiency of the evidence standard.
{¶20} Section 3(B)(4), Article IV of the Ohio Constitution provides “[w]henever the
judges of a court of appeals find that a judgment upon which they have agreed is in conflict
with a judgment pronounced upon the same question by any other court of appeals of the
state, the judges shall certify the record of the case to the supreme court for review and
final determination.” Id. The Ohio Supreme Court set forth three requirements which must
be met in order to certify a case:
{¶21} First, the certifying court must find that its judgment is in conflict with
the judgment of a court of appeals of another district and the asserted
conflict must be “upon the same question.” Second, the alleged
conflict must be on a rule of law-not facts. Third, the journal entry or
opinion of the certifying court must clearly set forth that rule of law
which the certifying court contends in conflict with the judgment on
the same question by other district courts of appeals. (Emphasis
original.) Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596
(1993).
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{¶22} Therefore, we sua sponte certify a conflict to the Supreme Court of Ohio,
pursuant to Article IV, Section 3(B)(4), Ohio Constitution. We certify the following question
for review:
{¶23} When reviewing a trial court’s decision to terminate parental rights,
is the appellant standard of review abuse of discretion, manifest
weight of the evidence, clear and convincing evidence, or sufficiency
of the evidence?
{¶24} In light of the foregoing, the judgment of the Ashtabula County Court of
Common Pleas, Juvenile Division, is affirmed. We certify a conflict to the Ohio Supreme
Court.
MATT LYNCH, J., concurs,
MARY JANE TRAPP, J., concurs in judgment only with a Concurring Opinion.
_______________________
MARY JANE TRAPP, J., concurs in judgment only with a Concurring Opinion.
{¶25} I concur in judgment only and write to clarify and confirm the standard of
review in cases involving the termination of parental rights.
{¶26} We begin with the recognition that “the right to raise a child is an ‘“essential”’
and ‘“basic”’ civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting
In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Furthermore, a parent’s right
to the custody of his or her own child has been deemed “‘paramount.’” Id., quoting In re
Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977). Permanent termination of
parental rights has been described as “‘the family law equivalent of the death penalty in
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a criminal case.’” Id., quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th
Dist.1991). The Supreme Court of Ohio has determined, based upon these principles,
that a parent must be afforded every procedural and substantive protection the law allows.
In re M.D., 11th Dist. Geauga No. 2021-G-0038, 2022-Ohio-1462, ¶ 42.
{¶27} R.C. 2151.414 sets forth the guidelines that a juvenile court must follow
when deciding a motion for permanent custody. Id. at ¶ 43. R.C. 2151.414(A)(1)
mandates that the juvenile court must schedule a hearing and provide notice upon the
filing of a motion for permanent custody of a child by a public children services agency or
private child placing agency that has temporary custody of the child or has placed the
child in long-term foster care. Id.
{¶28} Following the hearing, R.C. 2151.414(B)(1) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, that it is in the best interest of the child to
grant permanent custody to the agency and that any of the following apply: “(d) The child
has been in the temporary custody of one or more public children services agencies or
private child placement agencies for twelve or more months of a consecutive twenty-two
month period * * *.” Id. at ¶ 44.
{¶29} Therefore, R.C. 2151.414(B)(1) establishes a two-pronged analysis that the
juvenile court must apply when ruling on a motion for permanent custody. Id. at ¶ 45. In
practice, the juvenile court will usually determine whether one of the four circumstances
delineated in R.C. 2151.414(B)(1)(a) through (d) is present before proceeding to a
determination regarding the best interest of the child. Id.
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{¶30} Assuming the juvenile court ascertains that one of the four circumstances
listed in R.C. 2151.414(B)(1)(a) through (d) is present, then the court proceeds to an
analysis of the child’s best interest. Id. at ¶ 46. In determining the best interest of the
child at a permanent custody hearing, R.C. 2151.414(D)(1) mandates that the juvenile
court must 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 parents 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;
and (e) whether any of the factors in divisions (E)(7) to (11) of this section apply in relation
to the parents and child. Id.
{¶31} “‘“The juvenile court may terminate the rights of a natural parent and grant
permanent custody of the child to the moving party only if it determines, by clear and
convincing evidence, that it is in the best interest of the child to grant permanent custody
to the agency that filed the motion, and that one of the four circumstances delineated in
R.C. 2151.414(B)(1)(a) through (d) is present. Clear and convincing evidence is more
than a mere preponderance of the evidence; it is evidence sufficient to produce in the
mind of the trier of fact a firm belief or conviction as to the facts sought to be established.”’”
Id. at ¶ 47, quoting In re T.B., 11th Dist. Lake No. 2008-L-055, 2008-Ohio-4415, ¶ 35,
quoting In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985).
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{¶32} Our review of the juvenile court’s determination to terminate parental rights
and award permanent custody to an agency is, in recognition of the paramount interests
at stake, the necessarily heightened clear and convincing standard of review, a standard
which this court has long applied. See In re Kirksey, 11th Dist. Trumbull No. 3808, 1988
WL 61450, *2 (June 10, 1988); In re T.B. at ¶ 36; In re M.D. at ¶ 48.
{¶33} We explicitly clarified and confirmed the clear and convincing standard of
review in In re J.S.E., 11th Dist. Portage Nos. 2009-P-0091 & 2009-P-0094, 2010-Ohio-
2412, wherein we stated, “to clarify, the appropriate standard of review is that ‘“we will not
reverse a juvenile court’s termination of parental rights and award of permanent custody
to an agency if the judgment is supported by clear and convincing evidence.”’” (Emphasis
added.) Id. at ¶ 25, quoting In re T.B. at ¶ 36, quoting In re Lambert, 11th Dist. Geauga
No. 2007-G-2751, 2007-Ohio-2857, ¶ 75.
{¶34} In In re Adoption of Holcomb, the Supreme Court of Ohio explained that this
heightened standard is to be applied in cases that may involve the termination of
fundamental parental rights, which in that case was an adoption case without parental
consent. Id. at 368. Thus, the court stated: “Because cases such as these may involve
the termination of fundamental parental rights, the party petitioning for adoption has the
burden of proving, by clear and convincing evidence * * *.” (Emphasis added.) Id. The
petitioner’s allegations must be proved by clear and convincing evidence to the
“satisfaction” of the lower court. Id.
{¶35} This burden of proof, however, is not to be confused with the appellate
standard of review, where we “examine the record and determine if the trier of fact had
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sufficient evidence before it to satisfy this burden of proof,” which we will not overturn
“unless it is unsupported by clear and convincing evidence.” (Emphasis added.) Id.
{¶36} Because the majority misapprehends the standard of review that was
clarified in In re J.S.E., I concur in judgment only.
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