In re A.W.

2021 Ohio 3914

Opinion

[Cite as In re A.W., 2021-Ohio-3914.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: A.W. : APPEAL NO. C-210420 TRIAL NO. F18-597Z :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 3, 2021

Treleven & Kingensmith LLC and John Treleven, for Appellant Father,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nichlas C. Varney, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Belinda S. Gullette, Assistant Public Defender, Guardian ad Litem for A.W. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} Father appeals the Hamilton County Juvenile Court’s judgment

granting permanent custody of his child to the Hamilton County Department of Job

and Family Services (“HCJFS”). The child’s guardian ad litem (“GAL”) and HCJFS

ask this court to affirm the juvenile court’s judgment.

{¶2} In April 2018, the juvenile court granted interim custody of ten-

month-old A.W. to HCJFS after his mother was admitted to the hospital for mental-

health and substance-abuse issues. HCJFS filed a complaint for temporary custody,

naming father only by his first name, Tracy.

{¶3} In May 2018, HCJFS amended its complaint to name father by his full

name, and another man, M.D., as alleged fathers of A.W. In June 2018, A.W. was

adjudicated abused, neglected, and dependent, and mother agreed to his placement

in the temporary custody of HCJFS.

{¶4} In December 2018, the magistrate conducted a review hearing, noting

that father, who was in prison in Illinois, had contacted HCJFS to indicate his

support of mother’s reunification with A.W.

{¶5} In February 2020, HCJFS moved for permanent custody under R.C.

2151.413, naming three men, including father, M.D., and a third man as A.W.’s

alleged fathers.

{¶6} In April 2020, M.D., who was also incarcerated, wrote to the court to

request that an attorney be appointed for him. One of M.D.’s relatives filed a petition

for custody of A.W., and M.D. submitted to genetic testing to determine if he was

A.W.’s biological father.

{¶7} In October 2020, mother signed a permanent surrender of her

parental rights. The matter was continued for the results of M.D.’s genetic test.

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{¶8} On December 11, 2020, the court ordered HCJFS to proceed with a

motherless genetic test for father, because mother’s whereabouts were unknown.

The matter was continued for the status of the genetic tests.

{¶9} On December 17, 2020, the court noted that father, who was still

incarcerated in Illinois, had written to the court to request that an attorney be

appointed for him. No such letter from father appears in the record. The court

referred the matter to the public defender’s office for the appointment of an attorney

for father.

{¶10} Counsel for father appeared at a pretrial hearing on January 6, 2021,

and the matter was continued for the status of genetic testing for father and M.D.

{¶11} On January 6, 2021, the court held a hearing at which counsel for

father appeared. An HCJFS supervisor stated that genetic testing revealed that

father was A.W.’s father. In its entry following that hearing, however, the court

continued the matter to January 15, 2021, for the status of the genetic tests for M.D.

and father.

{¶12} At a hearing on January 15, 2021, counsel for father appeared. An

HCJFS supervisor informed the court that genetic testing had revealed that father

was A.W.’s father. In its entry, however, the court noted only that genetic testing

revealed that M.D. was not A.W.’s father. The court dismissed the custody petition

filed by M.D.’s relative, who indicated that she would no longer pursue her petition.

{¶13} At the February 2021 hearing on HCJFS’s permanent-custody motion,

the HCJFS caseworker testified that A.W., who had remained in the same foster

placement since April 2018, was well bonded to his foster parents, who wished to

adopt A.W. should permanent custody be granted. In closing argument, counsel for

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father indicated that father would like his sister to have custody of A.W. Counsel

stated that he reached out to father’s sister, but received no response.

{¶14} The magistrate determined, for the first time, that father was A.W.’s

legal father and granted the permanent-custody motion. The juvenile court

overruled father’s objections to the magistrate’s decision and awarded permanent

custody of A.W. to HCJFS. This appeal followed.

{¶15} In his sole assignment of error, father argues that the juvenile court

erred in granting permanent custody of A.W. to HCJFS.

{¶16} A juvenile court’s determination on a permanent-custody motion must

be supported by clear and convincing evidence. In re B.J., 1st Dist. Hamilton Nos. C-

200372 and C-200376, 2021-Ohio-373, ¶ 14. Clear and convincing evidence is

evidence sufficient to “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. We must examine the record and

determine if the juvenile court had sufficient evidence before it to satisfy the clear-

and-convincing standard. In re B.J. at ¶ 14. In reviewing a challenge to the weight of

the evidence, we review the record to determine if 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. Id.

{¶17} A juvenile court may grant permanent custody if it finds that

permanent custody is in the child’s best interest and that one of the conditions in

R.C. 2151.414(B)(1) applies. Id. at ¶ 15. Here, father does not challenge the juvenile

court’s finding that the condition in R.C. 2151.414(B)(1)(d) was satisfied because the

child was in the temporary custody of HCJFS for 12 or more months of a consecutive

22-month period.

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{¶18} The juvenile court found that clear and convincing evidence supported

the conclusion that permanent custody was in the child’s best interest under R.C.

2151.414(D)(2), which provides:

If all of the following apply, permanent custody is in the best interest

of the child, and the court shall commit the child to the permanent

custody of a public children services agency or private child placing

agency:

(a) The court determines by clear and convincing evidence that one or

more of the factors in division (E) of this section exist and the child

cannot be placed with one of the child’s parents within a reasonable

time or should not be placed with either parent.

(b) The child has been in an agency’s custody for two years or longer,

and no longer qualifies for temporary custody pursuant to [R.C.

2151.415(D)].

(c) The child does not meet the requirements for a planned permanent

living arrangement pursuant to [R.C. 2151.353(A)(5)].

(d) Prior to the dispositional hearing, no relative or other interested

person has filed, or has been identified in, a motion for legal custody of

the child.

{¶19} The juvenile court found that each of the four conditions in R.C.

2151.414(D)(2) was satisfied. With respect to the condition in R.C.

2151.414(D)(2)(a), the court found that three of the factors in R.C. 2151.414(E)

existed, specifically those in (E)(4), (10), and (12), even though only one of the

factors would have sufficed. Those conditions are:

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(4) The parent has demonstrated a lack of commitment toward the

child by failing to regularly support, visit, or communicate with the

child when able to do so, or by other actions showing an unwillingness

to provide an adequate permanent home for the child;

(10) The parent has abandoned the child; and

(12) The parent is incarcerated at the time of the filing of the motion

for permanent custody or the dispositional hearing of the child and

will not be available to care for the child for at least eighteen months

after the filing of the motion for permanent custody or the

dispositional hearing.

R.C. 2151.414(E)(4), (10), and (12).

{¶20} With respect to the factor in R.C. 2151.414(E)(4), the juvenile court

found that A.W.’s mother had executed a voluntary permanent surrender of her

parental rights. The court also found that father had failed to have any contact with

the child, which was supported by the caseworker’s testimony that father had never

met or spoken with A.W.

{¶21} Because of the same lack of contact, the juvenile court found that

father had abandoned A.W., with respect to the factor in R.C. 2151.414(E)(10). A

child is presumed abandoned when the parents of the child have failed to visit or

maintain contact with the child for more than 90 days. R.C. 2151.011. Nothing in the

record rebuts the presumption of abandonment—the child was born in June 2017

and in the custody of HCJFS since April 2018, but father never had contact with the

child. Father acknowledges that he was incarcerated during the entirety of the

proceedings, and admits he received notice of the proceedings as early as October

2018. But he made no efforts to have contact with the child.

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{¶22} The juvenile court found that the factor in R.C. 2151.414(E)(12) existed

because father was incarcerated and would not be available to care for the child for at

least 18 months after the filing of the permanent-custody motion or the dispositional

hearing, finding that his prison sentence did not end until July 2025. This finding

was supported by the caseworker’s testimony that father was incarcerated on a

narcotics-possession charge, and that he would go before the parole board in July

2022, but if denied parole, his projected release date would be July 2025. The

permanent-custody motion was filed in February 2020, and the dispositional hearing

occurred in February 2021. The court properly determined that father would not be

available to care for the child within 18 months of either the filing of the motion or

the dispositional hearing.

{¶23} Although father now asserts for the first time in his brief that he will be

eligible for parole in March 2022, and not July 2022, he put on no evidence at the

hearing to support this. Nevertheless, parole is not guaranteed. In re Lenix, 5th

Dist. Ashland No. 05-COA-039, 2006-Ohio-1294, ¶ 47. Courts have rejected

speculative release dates as establishing that a parent will be available to care for a

child within the 18-month timeframe in R.C. 2151.414(E)(12). Matters of J.F., 4th

Dist. Nos. 21CA2 and 21CA3, 2021-Ohio-2713, ¶ 48; Lenix at ¶ 47.

{¶24} Father does not dispute that each of the conditions in R.C.

2151.414(D)(2)(b) (that the child has been in agency custody for more than two years

and no longer qualifies for temporary custody) or R.C. 2151.414(D)(2)(c) (that the

child does not qualify for a planned permanent living arrangement) existed.

{¶25} Father does not specifically dispute the juvenile court’s finding that the

condition in R.C. 2151.414(D)(2)(d) existed, that is, that prior to the dispositional

hearing, no relative or other interested person filed a motion for custody. However,

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to the extent that father asserts that the court should not have found that HCJFS

made reasonable efforts to return A.W. to his biological family, we address that

contention here.

{¶26} The term “reasonable efforts” describes “[t]he state’s efforts to resolve

the threat to the child before removing the child or to permit the child to return

home after the threat is removed.” (Citation omitted.) In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 28.

No one section of the Revised Code addresses the concept of

reasonable efforts. Overall, Ohio’s child-welfare laws are designed to

care for and protect children, “whenever possible, 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.”

R.C. 2151.01(A). To that end, various sections of the Revised Code

refer to the agency’s duty to make reasonable efforts to preserve or

reunify the family unit.

Id. at ¶ 29.

{¶27} In particular, under R.C. 2151.419(A)(1), when a trial court removes a

child from the child’s home or continues the removal of a child from the child’s

home, the court must determine whether the agency “made reasonable efforts to

prevent the removal of the child from the child’s home, to eliminate the continued

removal of the child from the child’s home, or to make it possible for the child to

return safely home.” However, the statute applies only to various stages of the child-

custody proceeding, “all of which occur prior to a decision transferring permanent

custody to the state.” Id. at ¶ 41. Although father asserts that the statute required

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HCJFS “to seek reunification with the paternal family of A.W.,” the statute requires

only reasonable efforts to return a child to “the child’s home.”

{¶28} The Supreme Court of Ohio has held that the requirement to make

reasonable efforts set forth in R.C. 2151.419(A)(1) does not apply to a hearing on an

R.C. 2151.413 motion for permanent custody. Id. In addition, the court noted that

under the circumstances identified in R.C. 2151.419(A)(2), “the law dispenses with

the duty to make reasonable efforts to reunify the family.” Id. at ¶ 34. One of those

circumstances is when “[t]he parent from whom the child was removed has

abandoned the child.” Id.; R.C. 2151.419(A)(2)(d). Here, HCJFS was not required to

make reasonable efforts to return the child to the child’s home or, assuming for the

sake of father’s argument, to the child’s family because, as the juvenile court found,

father abandoned A.W. See R.C. 2151.414(A)(2)(d). Father does not specifically

challenge that finding on appeal.

{¶29} In addition, father acknowledges that in this case, prior to the hearing

on the permanent-custody motion, the juvenile court made several findings under

R.C. 2151.419 that the agency had made reasonable efforts to return A.W. to his

home. The court, therefore, was not required to make a reasonable-efforts finding in

its entry granting permanent custody of the child to HCJFS. See In re C.F. at ¶ 42-

43.

{¶30} Following our review of the record, we hold that the juvenile court’s

determination that A.W.’s best interest is served by a grant of permanent custody is

supported by clear and convincing evidence, and is not against the manifest weight of

the evidence. Therefore, we overrule father’s assignment of error and affirm the

judgment of the juvenile court.

Judgment affirmed.

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BERGERON and CROUSE, JJ., concur.

Please note: The court has recorded its own entry this date.