In re E.H.

[Cite as In re E.H., 2022-Ohio-4701.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: E.H. : APPEAL NOS. C-220424
C-220428
: TRIAL NO. F08-1777-X
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: December 28, 2022
Kimberly V. Thomas, for Appellant Mother,
Christopher P. Kapsal, for Petitioner-Appellant Aunt,
Joseph T. Deters, Hamilton County Prosecuting Attorney, Silvia Beck, Assistant
Prosecuting Attorney, and Daniel Monk, Assistant Prosecuting Attorney, for Appellee
Hamilton County Department of Job and Family Services,
ProKids and Jeffrey A. McCormick, for Appellee Guardian ad Litem.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Mother and her sister (“aunt”) appeal from the Hamilton County
Juvenile Court’s judgment granting permanent custody of mother’s child E.H. to the
Hamilton County Department of Job and Family Services (“HCJFS”) and denying
aunt’s petition for legal custody. In these consolidated appeals, mother and aunt each
assign error to the juvenile court’s determination that permanent custody was in E.H.’s
best interest. For the following reasons, we affirm the judgments of the juvenile court.
Factual and Procedural Background
{¶2} E.H. was born in 2015 to mother and father. Father, though
sporadically involved in E.H.’s life in 2019, has not had any contact with E.H. or
HCJFS since 2020.
{¶3} E.H. became involved with HCJFS after mother called 241-KIDS in
September 2018 because she was homeless and stated that she was overwhelmed.
HCJFS subsequently did a wellness visit, and then on September 10, 2018, filed a
motion for interim custody of E.H., a complaint for permanent custody of E.H., and a
motion for a determination that reasonable efforts are not required based on mother’s
prior involvement with HCJFS. See R.C. 2151.419(A)(2) (directing the court to “make
a determination that the agency is not required to make reasonable efforts to * * *
eliminate the continued removal of the child from the child’s home, and return the
child to the child’s home” if the parent “has had parental rights involuntarily
terminated with respect to a sibling of the child.”). A hearing was held the following
day, and the magistrate granted the motion for interim custody and determined that
reasonable efforts were not required. Amended complaints were filed in October 2018
and November 2018.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} An adjudication hearing was held on December 6, 2018. E.H. was
adjudicated dependent, and an allegation of abuse against mother was dismissed on
December 19, 2018. A disposition hearing was held on January 3, 2019, wherein all
parties agreed to the disposition of temporary custody. Mother was homeless at the
time of this hearing.
{¶5} Case-plan services were instituted, and required mother to complete a
Diagnostic Assessment of Functioning and follow recommendations; obtain/maintain
housing and income; complete a psychological assessment and engage in
recommended treatment; participate in parenting classes; participate in the
therapeutic intervention program (“TIP”); and participate in visitation with E.H.
Father was ordered to cooperate with HCJFS, complete a DAF, and visit E.H.
{¶6} Temporary custody was extended twice on HCJFS’s motion—from
September 2019 through March 2020, and then from March 2020 to September 2020.
HCJFS then filed a motion for permanent custody on July 14, 2020. Five months later,
on December 10, 2020, aunt filed a motion for an emergency hearing and a petition
for custody of E.H. The court denied the motion for an emergency hearing. HCJFS
ordered an expedited home study for aunt in February 2021. The home study did not
approve aunt as a caregiver for E.H.
{¶7} A five-day trial was held between September 2021 and January 2022 on
HCJFS’s motion for permanent custody and aunt’s motion for legal custody. On May
31, 2022, the magistrate recommended denying aunt’s motion for legal custody and
granting HCJFS’s motion for permanent custody. Both mother and aunt timely
objected to the magistrate’s decision. On August 3, 2022, both objections were denied,
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OHIO FIRST DISTRICT COURT OF APPEALS
and the court approved and adopted the magistrate’s decision. Mother and aunt each
timely appealed.
Divergent Standards of Review
{¶8} While mother and aunt articulate their assignments of error the same
way, each argument is slightly different because different rights are at stake. Mother’s
argument solely challenges the court’s grant of permanent of custody. She contends
that the decision is not based on sufficient evidence and is against the manifest weight
of the evidence. She asks this court to reverse the judgment, and to return E.H. to her
custody.
{¶9} Aunt also challenges the evidence underlying the permanent-custody
determination, and, at the same time, argues that the court erred in denying her
petition for legal custody. However, as E.H.’s aunt, she is only able to challenge the
court’s decision to deny her motion for legal custody. This is because “[r]elatives
seeking custody of a child do not have the same rights as natural parents” and “thus
they cannot challenge the juvenile court’s ruling on [the permanent-custody] issue.”
In re L & M Children, 1st Dist. Hamilton Nos. C-180598, C-180628 and C-180629,
2019 Ohio App. LEXIS 689, 21-22 (Feb. 22, 2019).
{¶10} Therefore, we review mother’s assignment of error as it relates to the
grant of permanent custody, and aunt’s as it relates to the denial of her petition for
legal custody.
{¶11} When this court addresses sufficiency-of-the-evidence challenges in the
permanent-custody context it, “tak[es] a fresh look at the evidence to see whether it
clearly and convincingly supports the court’s decision.” In re M/E, 1st Dist. Hamilton
No. C-200349, 2021-Ohio-450, ¶ 8. Clear and convincing evidence is evidence that
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OHIO FIRST DISTRICT COURT OF APPEALS
“ ‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established.’ ” In re L.H., 1st Dist. Hamilton No. C-220161,
2022-Ohio-2755, ¶ 38, quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118(1954). In applying the clear-and-convincing standard, where there is “ample
competent and credible evidence supporting the trial court’s determination,” this
court must not substitute its judgment for that of the juvenile court. In re A.M., 1st
Dist. Hamilton No. C-190027, 2019-Ohio-2028, ¶ 16.
{¶12} When this court addresses a manifest-weight challenge in the
permanent-custody context, it “consider[s] ‘whether the [juvenile] court lost its way
and created such a manifest miscarriage of justice in resolving conflicts in the evidence
that its judgment must be reversed.’ ” In re M/E at ¶ 8, quoting In re P/W Children,
1st Dist. Hamilton No. C-200103, 2020-Ohio-3513, ¶ 27.
{¶13} However, when it comes to the denial of aunt’s petition for legal custody,
the review is slightly different, and we instead review the court’s decision for an abuse
of discretion. In re D.Z.F., 1st Dist. Hamilton No. C-200260, 2020-Ohio-5246, ¶ 20;
see In re M/E at ¶ 18 (explaining that “[w]e measure weight and sufficiency challenges
to a legal custody determination differently” because residual parental rights are not
at stake). A trial court abuses its discretion in this context “when its best-interest
determination is not supported by competent and credible evidence.” In re F.B.D., 1st
Dist. Hamilton No. C-180356, 2019-Ohio-2562, ¶ 11.
Mother’s Assignment of Error: Permanent Custody
{¶14} Our analysis on the permanent-custody side of this case is guided by the
two-prong test of R.C. 2151.414(B)(1): A juvenile court may grant permanent custody
only if it determines that one of the conditions in R.C. 2151.414(B)(1)(a) through (e) is
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OHIO FIRST DISTRICT COURT OF APPEALS
satisfied, and that permanent custody is in the best interest of the child considering
“all relevant factors,” including those set forth in R.C. 2151.414(D)(1)(a)-(e).
{¶15} It is undisputed that the first prong of the test is satisfied because E.H.
has been in HCJFS custody for more than 12 months of a consecutive 22-month
period. R.C. 2151.414(B)(1)(d). However, the parties dispute whether permanent
custody is in E.H.’s best interest.
{¶16} R.C. 2151.414(D)(1) provides that when making a best-interest
determination, “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, including whether 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, * * *;
(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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} First, under R.C. 2151.414(D)(1)(a), the court considered E.H.’s
relationship with his mother. All parties agree that E.H. is bonded with mother, and
that mother was consistent with her visits. But, those visits were always supervised
and were not always without conflict. Grace Badger, an HCJFS caseworker testified
that at one visit in a local park mother grew very angry with E.H. and was yelling at
him and calling him names like “lame” and “ugly.” Badger testified that at another
visit at a local park, the police were called due to mother’s behavior. Deborah
Schneider, a JusticeWorks supervisor, testified about an August 2021 incident at
Smale Park that was “really bad” because mother “verbally abused” Schneider during
the visit. Mother did not dispute that this occurred, but explained that “I was really
hot and frustrated. * * * I felt like [Schneider] was overstepping a little bit.” In
response to these behaviors, the visits were periodically moved to a more supervised
level of visitation. Schneider testified that mother always came prepared to the visits,
could de-escalate when E.H. was upset, and that E.H. wanted to stay and play with his
mother when the visits were over. Badger testified that E.H. said he loves his mom
and his visits with her, and that he misses her, but sometimes said that “mom is mean.”
{¶18} There were also concerns about mother’s mental-health issues. The
“Diagnostic Assessment of Functioning” lists diagnoses for unspecified depressive
disorder, unspecified anxiety disorder, and a previous diagnosis of bipolar disorder.
Mother testified at the January 28, 2022 hearing that she continues to work on her
explosive behavior, but admitted on cross-examination that she continues to have
outbursts in reaction to certain, triggering things, such as attorneys asking her
questions during the trial. The court noted that on more than one occasion, security
was needed in the courtroom in response to these outbursts. Mother testified that
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OHIO FIRST DISTRICT COURT OF APPEALS
while she was prescribed medication for her mental-health issues, the medication
makes her too tired to work, so she only takes them as-needed. While the case plan
ordered mother to engage in talk therapy, mother admitted discontinuing therapy
after several sessions because therapy itself is triggering for her due to the time she
spent in the foster care system as a child. Francoise Pierredon, a clinical counselor
with TIP, testified that she met with mother for two therapy sessions, but at the second
session mother “was so upset that we had to call security.” After that, mother returned
for “a few sessions” with a different provider.
{¶19} Additional concerns were raised about mother’s relationship with P.K.,
whom E.H. knows as “Papa.” Badger testified that E.H. “reported some sexual
touching by [P.K.]” and that E.H. had exhibited sexualized behavior with other young
children in a foster home. Pierredon testified that E.H. had named P.K. as his abuser
when he was around three years old. Badger testified that mother claimed she was not
involved with P.K. any longer, but that he came to at least one visit to “help set up” and
would “have brief interactions with E.H.” Badger testified that mother did not see an
issue with P.K. being there, despite the allegations. Schneider testified that P.K. would
simply bring things to the visits to help mother.
{¶20} Mother explained that she thought that P.K. “was cleared” and that
“nothing was bad” and “nothing was going on.” Badger testified, however, that once
she realized mother had this impression, she clarified that the only way P.K. would not
be an issue was if mother was no longer involved with him. Mother testified that she
has since “cut all interactions with him.”
{¶21} Mother’s history of housing instability was also raised by the parties and
considered by the court. Badger testified that she once showed up to a home visit at
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OHIO FIRST DISTRICT COURT OF APPEALS
the address given to her by mother and another person was living there. Badger
testified that mother secured housing in the spring of 2021, but was evicted in May
“due to a nuisance behavior.” Then, mother said she had another apartment, but
Badger testified that it was not a valid lease, and that the owner of the building had no
record of her as a tenant. Currently though, mother has a two-bedroom apartment,
with a room for E.H., and according to Schneider it has “been painted and the carpet
is new. The furnishings are very nice. And she * * * takes a lot of pride in her
apartment.” While concerns were raised by HCJFS Supervisor Ralph Allen about
mother’s ability to afford the approximately $900 monthly rent, mother was working
two jobs at the time of trial.
{¶22} The court also considered E.H.’s wishes, with regard to his age and
maturity pursuant to R.C. 2151.414(D)(1)(b). The court found that E.H. had expressed
an interest in returning to mother’s home and E.H.’s In re Williams attorney
advocated accordingly at trial, given the conflicting recommendation of the guardian
ad litem (“GAL”). See In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805
N.E.2d 1110. However, in a case involving similarly young children, we stated that this
“factor is of minimal value in determining [a child’s] best interest,” given their young
ages. In re P. & H., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637,
¶ 38.
{¶23} Under R.C. 2151.414(D)(1)(c), the court found that E.H. had been in the
temporary custody of HCJFS for 38 months at the time of trial. This finding is
well-supported in the record and is not in dispute.
{¶24} The court also considered E.H.’s need for a legally secure placement
under R.C. 2151.414(D)(1)(d). A legally secure placement refers to more than just a
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OHIO FIRST DISTRICT COURT OF APPEALS
roof over one’s head, rather, a legally secure placement, “ ‘encompasses a stable
environment where a child will live in safety with one or more dependable adults who
will provide for the child’s needs.’ ” In re P. & H., 1st Dist. Hamilton Nos. C-190309
and C-190310, 2019-Ohio-3637, at ¶ 42, quoting In re K.W., 2018-Ohio-1933, 111
N.E.3d 368, ¶ 87 (4th Dist.) (“Mother’s failure to comply with her case plan, along with
the presence of grandmother at the home, provided clear and convincing evidence that
mother was unable to provide a legally secure permanent placement.”); see In re J.H.,
11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (record supported a finding that
parents were unable to provide a legally secure placement where parents were not
grasping parenting concepts and were not truthful in mental-health evaluations.).
{¶25} The court considered that E.H. had been in multiple kinship and foster
placements through the pendency of the case. Mother contends that E.H.’s numerous
foster placements demonstrate that permanent HCJFS custody does not provide a
legally secure placement, but the state contends that much of the disruption was due
to mother’s behavior. Badger testified that the high number of placements for E.H. is
“[p]artially due to his behavior, partially due to some providers not wanting to engage
with mother anymore.” Allen testified at the January 24, 2022 hearing that E.H. was
back in the same foster home that he previously had been in. Allen explained that he
was only displaced from that home due to a fire.
{¶26} The court also considered testimony about E.H.’s mental-health
challenges. Pierredon testified that, in addition to the sexualized behaviors, he
exhibited “very clear symptoms of post-traumatic stress disorder” and was also
diagnosed with ADHD and intermittent explosive disorder. In Pierredon’s view, many
of E.H.’s challenges come from a lack of stability. Mother’s hesitancy to engage in
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OHIO FIRST DISTRICT COURT OF APPEALS
therapy was also considered. And while the record demonstrates that mother
completed parenting classes, she did not fully participate in E.H.’s therapy, and did
not complete her own therapy as directed by the case plan.
{¶27} Under R.C. 2151.414(E)(1o), the court found that E.H.’s legal father had
abandoned him, having not visited him since September 2020. This finding is
well-supported in the record and is not in dispute. Similarly, under R.C.
2151.414(E)(11), the court found that mother had her parental rights terminated with
regard to a sibling of E.H. This finding is also supported in the record and is not in
dispute.
{¶28} After thoroughly reviewing the record and the trial court’s analysis, we
conclude that the trial court’s judgment was based on sufficient evidence and was not
against the manifest weight of the evidence. The record clearly and convincingly
supports the court’s decision to grant permanent custody to HCJFS. Moreover, in
resolving the few conflicts that there were in the evidence, we cannot say that the trial
court lost its way. For these reasons, mother’s assignment of error is overruled.
Aunt’s Assignment of Error: Legal Custody
{¶29} On the legal-custody side, when a child has already been adjudicated
abused, neglected, or dependent—as is the case here—the court’s focus is on the child’s
best interest. In re M/E, 1st Dist. Hamilton No. C-200349, 2021-Ohio-450, at ¶ 19.
To make this best-interest determination, “courts are permitted to use R.C.
2151.414(D)(1) (the permanent-custody factors discussed above) or R.C. 3109.04(F)
(factors used for private custody disputes).” Id., citing In re E.R.M., 1st Dist. Hamilton
No. C-190391, 2020-Ohio-2806, ¶ 16.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} In this case, the court reviewed the factors set forth in R.C. 2151.414(D),
starting first with E.H.’s relationship with aunt. Under this factor, the court found that
while aunt had stable employment and housing, her failed home study, prior
involvement with HCJFS, and lack of insight into the tumult in E.H.’s life disqualified
her from obtaining legal custody. The record supports these findings.
{¶31} Central to the failed home study was aunt’s prior HCJFS involvement
and trouble with the law. The home study report explains that aunt had instances of
substantiated physical abuse in 2005 and 2007, including a SWAT call to her
then-partner M.D.’s home “due to an allegation that drugs were being sold out of the
home. [M.D.’s] children were present at the time. [Aunt] was found with cocaine and
2 guns in her possession. Prior to SWAT coming to the home, [Aunt] sold drugs to an
undercover officer.” In 2008, an unsubstantiated allegation of abuse was documented
wherein M.D.’s daughter “reported that she was slammed into a door by [aunt]
resulting in her losing her tooth.” The home study report detailed additional criminal
history associated with felony drug sales in 2007, drug trafficking in 2012, and a
criminal damaging misdemeanor in 2009. Aunt testified that her time in prison
changed her, and she has since been living a law-abiding life. She added that she has
cut ties with M.D. since then, however, Stephanie Hunter, the home study assessor,
noted in the home study report that aunt was on a FaceTime call with M.D. during the
home visit, and listed M.D. as a collateral source and support. Also concerning to the
court was aunt’s lack of insight into E.H.’s life, including the fact that aunt did not
know, for several years, that E.H. was even in foster care.
{¶32} On the other hand, aunt testified that she has lived in the same
apartment for four years and works two well-paying jobs. Schneider testified that aunt
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OHIO FIRST DISTRICT COURT OF APPEALS
has “always been a calming presence * * * always been positive.” Aunt testified about
one such visit she attended with mother, where she was able to help mother and E.H.
calm down and avoid a conflict. Mother testified aunt would be a great mom for E.H.
And while aunt testified “I don’t know how to be a mom,” she added that “I do know
what it feels like to be loved, and that’s what—that’s the biggest thing here.” She also
expressed a desire to continue E.H.’s involvement in therapy. She testified that she
had not researched options for daycare or schooling.
{¶33} When considering E.H.’s need for a legally secure placement, the court
noted concern with aunt’s lack of insight into the severity of mother’s and E.H.’s
mental-health challenges. Aunt testified, “I don’t know anything about [mother’s]
mental health.” Overall, the record demonstrates that aunt had little to no insight into
the current state of E.H.’s or mother’s therapy, but Aunt admitted that this was
because she does not have a strong relationship with mother and because HCJFS
would not tell her any information about E.H.
{¶34} Based on our review of the record as it relates to aunt, we cannot say
that the trial court abused its discretion in denying aunt’s petition for legal custody.
While aunt certainly seems to have a strong relationship with E.H. and has turned her
life around, the court’s best-interest determination was supported by competent and
credible evidence.
Conclusion
{¶35} In light of the foregoing analysis, both mother’s and aunt’s assignments
of error are overruled. The judgments of the juvenile court are affirmed.
Judgments affirmed.
ZAYAS, P. J., and WINKLER, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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