In re C.C.

2021 Ohio 1066

• Court: Ohio Court of Appeals
• Decided: March 29, 2021
• Docket: L-20-1138, L-20-1139
• Status: Published

Opinion

[Cite as In re C.C., 2021-Ohio-1066.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re C.C. Court of Appeals Nos. L-20-1138 L-20-1139

Trial Court Nos. JC 18269710 JC 20280028

DECISION AND JUDGMENT

Decided: March 29, 2021

*****

Christopher S. Clark, for appellant.

Travelle D. Riley, for appellee.

DUHART, J.

{¶ 1} This is a consolidated appeal by appellant, the biological father of C.C.

(“father”), from the August 12, 2020 judgment of the Lucas County Court of Common

Pleas, Juvenile Division, granting permanent custody of C.C. to appellee Lucas County

Children’s Services (“the agency”). For the reasons that follow, we affirm the judgment. {¶ 2} Father sets forth one assignment of error:

The trial court erred in finding by clear and convincing evidence that

the child could not be placed with father within a reasonable time and that it

is in the best interest of the child to terminate appellant-father’s parental

rights and to award permanent custody of the children [sic] to Lucas

County Children’s Services (“LCCS”).

Background

{¶ 3} Father and mother were not married to each other when mother became

pregnant with C.C. After C.C. was born in June 2017, C.C. lived in a home with mother

and her husband, R.C., until July 16, 2018, when C.C. was removed from the home.

{¶ 4} On the night of July 15, 2018, mother was at a bar while her husband was at

the home with C.C., C.C.’s oldest half-brother and another child, when the other child

became unresponsive as a result of severe injuries. Mother and her husband were

arrested, charged and convicted. Mother’s was convicted of third-degree felony child

endangering and incarcerated.

{¶ 5} On July 16, 2018, the agency filed a complaint in dependency and neglect

regarding C.C. and a motion for shelter care hearing in Lucas County Court of Common

Pleas, Juvenile Division, case No. JC 18269710. An emergency hearing was held that

same day and the court awarded interim temporary custody of C.C. to the agency. C.C.

was placed in a foster home.

2. {¶ 6} On August 30, 2018, the adjudication/dispositional hearing was held. The

court found C.C. was a dependent child and awarded the agency temporary custody of

C.C. Thereafter, the agency filed a motion to extend temporary custody of C.C., which

the court granted on July 16, 2019.

{¶ 7} On January 28, 2020, the agency moved for permanent custody of C.C. and

requested an extension of temporary custody of C.C.

{¶ 8} On April 10, 2020, A.M., mother’s half-sister and C.C.’s aunt (“aunt”), filed

a pro se complaint for custody of C.C. in Lucas County Court of Common Pleas, Juvenile

Division, case No. JC 20280028.

{¶ 9} On June 29, 2020, mother filed a motion for legal custody of C.C. to a

relative, in the original case, case No. JC 18269710.

{¶ 10} On July 13 and 17, 2020, the permanent custody hearing was held for both

cases.

{¶ 11} On August 12, 2020, the juvenile court issued its judgment entry, granting

permanent custody of C.C. to the agency. Father appealed. Mother, who was

incarcerated throughout the juvenile court proceedings, did not appeal and she is not a

party to this appeal. Further, aunt did not appeal and she is not a party to this appeal.

The Hearing

{¶ 12} The agency called several witnesses at the permanent custody hearing: two

caseworkers and the Court Appointed Special Advocate/guardian ad litem

(“CASA/GAL” or “CASA” or “GAL”). Father testified at the hearing and called two

3. witnesses to testify on his behalf. In support of aunt’s request for custody of C.C., she

testified and C.C.’s maternal grandmother testified. The relevant testimony follows.

Caseworker Anthony Cardenas

{¶ 13} Cardenas testified he was an ongoing caseworker for the agency when the

agency became involved with C.C.’s family due to injury to another child who was in

mother and her husband’s care. Services were identified for mother, including substance

abuse treatment, parenting, housing and a mental health assessment, but the services were

not put into a case plan because the perpetrator who injured the child was not known.

{¶ 14} Cardenas started working with father in perhaps December 2018, until

about April or May 2019. There were concerns due to father’s rape conviction and

Cardenas was not comfortable sending C.C. to live with father based on the rape

conviction. If father had other criminal charges, Cardenas would have been even more

concerned, although “[n]ot much more is concerning than a rape conviction.” Cardenas

was aware father participated in treatment while in prison.

{¶ 15} Cardenas recalled father expressed a willingness to do anything asked of

him. During visits with C.C., which were supervised, father was very respectful, the

visits went well and there were no issues. Father would play with C.C., and C.C. was

getting more comfortable with father. Father and mother had a couple of visits together

with C.C.

4. {¶ 16} Cardenas did not remember aunt, or that she was interested as a possible

placement for C.C. Cardenas thought a person had to be 21 years old to be considered

for placement.

Caseworker Kari Vebenstad

{¶ 17} Vebenstad, an ongoing caseworker for the agency, testified she inherited

C.C.’s case in the fall of 2019. C.C. has been in the agency’s temporary custody since

July 2018, and father had a case plan which consisted of completing a dual diagnostic

assessment; father was compliant and there was no treatment recommendation. Father

requested and was referred to parenting classes, which he attended and completed.

{¶ 18} Vebenstad was aware of father’s criminal record, which included an OVI,

resisting arrest and two sexually related criminal offenses involving his stepdaughter.

The first sex offense occurred in Wisconsin, when he touched his stepdaughter. Father

was charged, placed on probation and was to receive family counseling. In addition,

father was not to have any contact with his stepdaughter until her therapist reported it was

safe. However, father’s family, including the stepdaughter, moved to Ohio, where the

second sex offense occurred. The offense was felony rape and father was sentenced to 10

to 25 years in prison. Father spent approximately 15 years in prison. Vebenstad was

concerned with father’s lack of candor with his background information, “unless he’s

asked, he didn’t tell.” Vebenstad noted father was also charged with a third sexual

offense.

5. {¶ 19} Vebenstad acknowledged father had been involved in C.C.’s case since

January 2019. During C.C.’s first year of life, father’s paternity was not established, and

it was reported that mother’s husband was the alleged father of C.C. After father became

involved with C.C., father’s paternity was established.

{¶ 20} Vebenstad testified father began consistent visits with C.C. in June or

July 2019, when father received a one hour a week visitation time slot. Father had

Level 1 supervised visitation and regularly requested more visitation time, but the

scheduler did not have any available time. Vebenstad observed father’s visits with C.C.,

which always went well. Father was very bonded with C.C. and loves him very much.

There were no concerns with C.C.’s safety during supervised visits with father.

{¶ 21} On August 1, 2019, father underwent a second assessment, a sexual

offender assessment with Dr. Harden, in which the doctor identified father as having zero

risk of reoffending in the future. It was concerning to Vebenstad that “it was a self-

disclosure, and in that initial assessment * * * [father] did not disclose * * * his previous

charges in Wisconsin * * * either the one that was dismissed in the 70’s or the one that he

was convicted of in 1984.” Vebenstad acknowledged “[l]ater it was reported that he

[father] had, in fact, disclosed that and that he had been, in fact, very forthcoming * * *

during that assessment, but her write-ups would fail to -- to reflect that.”

{¶ 22} Vebenstad was also concerned about the nature of father’s relationship with

mother. They started off as friends, then mother needed a place to stay, so father offered

to let mother stay with him and “[i]t was almost * * * like a trade. That she would

6. provide him with a sexual relationship.” Another concern Vebenstad had was C.C. being

placed in father’s legal custody, since father is still a registered sex offender and C.C. was

only three years old, had some developmental delays and speech delays, and C.C. would

not be able to protect himself from abuse or neglect.

{¶ 23} With respect to C.C.’s aunt, Vebenstad was not aware that the family had

contacted caseworker Cardenas about aunt and her willingness to take C.C. Vebenstad

first became aware of aunt in January 2020, at a permanency planning conference, when

aunt’s name was brought up, but the agency would not move forward with exploring her

as a possible placement due to the agency’s policy to only look at people 21 years old and

older. After that, Vebenstad spoke with mother’s lawyer and mother’s mother

(“grandmother”) about aunt, and told them to have aunt contact her and maybe the

agency would explore aunt, since aunt was fairly close to 21 years old. Vebenstad never

heard from aunt.

{¶ 24} About two and one-half weeks before the hearing, Vebenstad reached out

to aunt “inquiring that if she was interested * * * based on her motion that she had filed

* * * that she would come down and complete some fingerprints” and background

checks, “and that I would set up a time to do a home study with her.” Aunt told

Vebenstad that she resided with just her two young children. Aunt did not come in for

fingerprinting or background checks. Nonetheless, Vebenstad scheduled a home visit

and went to aunt’s home on July 7, 2020, and found aunt, her boyfriend (“boyfriend”),

two children and two nephews. A home study was conducted and there were no safety

7. issues, the children were healthy and happy, the house was clean and there was food in

the cabinets. Boyfriend said he did not legally reside with aunt because he is not on her

Section 8 housing lease, but he stays there.

{¶ 25} Vebenstad thought aunt had the best of intentions, but there were concerns:

aunt and boyfriend had reported pretty regular marijuana smoking and aunt used

marijuana to self-medicate for anxiety and depression; boyfriend had a felony gun

conviction; aunt’s income was not stable, she started working as a clerk at 7-Eleven on

June 1, 2020, but before that she had not been employed for at least a year; aunt did not

believe mother would have hurt the child, despite mother being convicted and in prison;

aunt had a history with Fulton County Children Services (“FCCC”), as there was a

referral for domestic violence where aunt was the aggressor against boyfriend and

another referral when aunt’s daughter was positive for marijuana at birth.

{¶ 26} Vebenstad was aware that C.C. was placed in a foster home on July 16,

2018, then he was placed with grandmother from November 26, 2018, through

February 18, 2019. C.C. returned to the original foster home because grandmother could

no longer care for him. C.C. has remained in that foster home and had visitation with

grandmother at least once a month. Vebenstad said C.C. had services with Help Me

Grow, his speech improved and he thrived in his foster home. When C.C. was in

grandmother’s care, all of his skills declined.

{¶ 27} Vebenstad opined it was in C.C.’s best interest for the agency to be

awarded permanent custody, with the goal of adoption. Mother was in no position to take

8. custody of C.C. as she is in prison, due to be released in December 2020, and there were

concerns including housing, income and opiate addition, such that there should be a dual

assessment for mental health and substance abuse. Regarding father, there were concerns

with the lack of disclosure of his charges and minimizing the situation, since he stated the

charges were in the past and he did not believe they were relevant. The agency also

sought maternal and paternal relatives who lived out-of-state for C.C.’s placement, but

this was unsuccessful.

CASA/GAL

{¶ 28} Lee Ann Ayers testified she was the CASA/GAL appointed to represent

C.C. on March 15, 2019, after the previous CASA withdrew. Ayers continued the

independent investigation of C.C. and had monthly visits, observing him at daycare and

three times with father. Ayers thought father’s visits with C.C. went well, except father

brought sugary snacks to two of the earlier visits. Ayers collected reports, records and

home studies, and spoke with caseworkers, mother and father. Ayers also spoke with

aunt one time on the phone. Ayers monitored C.C.’s medical needs including his asthma.

Ayers knew father was employed full-time.

{¶ 29} Ayers authored a report and recommendation, filed on June 29, 2020, in

which she recommended it was in C.C.’s best interest that permanent custody be awarded

to the agency. Ayers testified mother is not able to care for C.C. due to her situation, and

Ayers was not comfortable with father taking custody of C.C. because of his criminal

history, his lack of parenting experience and C.C. not having another adult available.

9. {¶ 30} Regarding aunt, Ayers had only learned about her in April 2020, when aunt

filed for custody of C.C. Ayers was told aunt had never contacted the agency. Ayers’

concerns with aunt included the stress and commitment of adding another child to the

family and the possibility of allowing C.C. to return to mother in the future. Ayers

shared that mother had other children who were placed with relatives in the past, and one

of the relatives, grandmother, allowed mother to have unsupervised access to the oldest

child, which was not allowed. The oldest child was present when the child endangering

incident happened.

{¶ 31} Ayers testified C.C. is a delightful, gentle child, who had issues with

speech, but he was evaluated in January 2020, and no services were recommended.

Dr. Tamara Harden

{¶ 32} Dr. Harden testified on father’s behalf as an expert witness, without

objection. She is a mental health and sexual behavior treatment and assessment provider,

and she earned a master’s degree in mental health counseling and a Ph.D. in counselor

education and supervision. The doctor testified father contacted A Renewed Mind, the

business where she was working, for a sexual behavior assessment, and she met with him

twice. The meetings went very well and the doctor believed father was forthcoming.

{¶ 33} Dr. Harden prepared two assessment reports for father where she opined

his risk level was low for sexually offending in the community, and no treatment was

recommended. She defined low risk as “it’s pretty unlikely that the person will

reoffend.” Two reports were prepared because she “made an error on the first report and

10. forgot to include one of the offenses that he had reported, and so that was my error.” She

testified once “my attention was brought to the error, I wanted to correct it. Because I

remembered clearly him reporting that.” When she prepared the second report, she stated

the earlier offense “did not have any effect on his risk assessment at all, but I did look at

it. It was a part of my assessment process.”

{¶ 34} Dr. Harden used the sexual offender treatment intervention and progress

scale (“SOTIPS”), which measures 16 factors “that predict risk statistically in someone

who has offended sexually.” It is “a dynamic risk assessment, and those are qualities that

a person can change. So those would be things like employment, financial status, sexual

behavior, attitudes, taking responsibility, things like that that can vary over time.” Father

scored a zero, where it is “[b]etter to have lower * * * [z]ero is the lowest score.”

{¶ 35} Dr. Harden felt father “took full responsibility and placed no blame

anywhere else which is what we’re evaluating. Criminal and rule breaking behavior and

attitudes. He has no criminal history, very stable life.” Father’s attorney then mentioned

“[w]ith the exception of the --,” to which the doctor replied “[r]ight. With the exceptions

of the sexual behavior. With that, I’m sorry, I should have explained that the two that are

criminal, rule breaking, we do not look at the sexual behavior in that, just criminal

activity. I’m sorry, I should have clarified that.”

{¶ 36} The doctor also used the Static-99 test which has “ten categories and you

score those. They are not able to be changed [in the future]. For instance, the age at

11. release from prison. If a person’s ever lived with a lover for two years.” Father scored a

one.

{¶ 37} Father provided the doctor with certificates for treatment that he completed.

She testified the certificates mean “the person actively participated in the class and

showed an understanding of the concepts.” To arrive at her risk level opinion, the doctor

used the assessment tools, certificates, factors including “[t]imeliness, responsibility,

coming to appointments, setting their appointments when they are supposed to, paying

for appointments, cooperation when they’re speaking to us[,] * * * [and] general attitude

about being assessed.”

{¶ 38} Dr. Harden explained she was “not qualified to speak to custody or

anything to that of his son.” She stated father’s age, amount of treatment, time in the

community offense-free and lack of evidence of crossover offenses are factors which

have the potential to reduce his risk of offending. “A crossover offense is when someone

offends against one gender and then offends later against the other gender.”

{¶ 39} On cross-examination, the doctor acknowledged that father was charged

with sexual offenses multiple times, his victim was a minor at least two times, and father

was sent to prison for rape. Yet, Dr. Harden explained father’s risk level for reoffense

was low because the offenses occurred about 30 years ago, he was out of prison in 2005,

and he spent time in the community without reoffending. She also stated father took

responsibility for everything, and disclosed to her that he was charged with a sex offense

in 1974. The doctor was asked if her opinion would change if she knew that father did

12. not disclose that offense to the agency; the doctor responded in the negative. She said

she did not know what specific question the agency asked father.

{¶ 40} Dr. Harden agreed she had to create a second report because the first report

was inaccurate and key information was left out. She also agreed that someone could

assume after reading the first report “that it was a one-time thing and that he [father]

won’t reoffend again.” The first report was written when she worked at A Renewed

Mind and the second report was written when she was in private practice. She was not

allowed to take all of the information from A Renewed Mind to her private practice, so

the information in the second report was from the first report and her memory, and she

trusted her memory. At the time she met father, her caseload was probably ten people.

{¶ 41} Dr. Harden’s assessment of father was based on self-disclosure and

information from the agency, but she could not recall if she received criminal docket

sheets. The doctor stated assessments have been found, through research studies, to be

very accurate.

{¶ 42} Dr. Harden acknowledged father’s aftercare took place about 20 years ago,

and “[a]ftercare is appropriate after you’ve had treatment,” but she was not aware if

father had completed full treatment before aftercare. The certificates for treatment she

obtained from father were for programs father attended while he was in prison for 18

years.

{¶ 43} The doctor was also asked if the age of the victim matters, and she stated it

does, and she looks primarily at “whether the victim was prepubescent or postpubescent

13. * * * because most of the time if someone offends against someone who is postpubescent

they don’t then have an attraction to someone who is prepubescent the research shows.”

Dr. Harden was aware that father’s 1984 offense involved his stepdaughter who was

prepubescent. The doctor was also aware father was to have no contact with the

stepdaughter, but the doctor did not know if there was a no contact order when father

moved to Ohio. Dr. Harden was not aware if father gave her information with respect to

a counselor releasing the stepdaughter to have contact with father.

{¶ 44} Regarding the doctor’s testimony that father has had no more offenses

committed in the community, she was asked if it made a difference that his offenses

occurred in the home to his own family member. Dr. Harden responded that is taken into

consideration with the Static-99 assessment.

Julie Bach

{¶ 45} Bach testified for father. She has known him for over ten years. She has

never met C.C., but she has met mother. Bach met father at a neighborhood picnic. Bach

said she needed some work done at her house and father spoke up and said he could help.

He remodeled her bathroom and kitchen, and did other odd jobs. She described father as

very trustworthy, honest, reliable, straight forward and a good guy. Bach also had father

stay at her house and watch her dogs while she was away, and her dogs are like her kids.

Bach has a son and father has been at the house when her son was there.

{¶ 46} Father told Bach about his criminal history right away, in the first few

hours that they met. He told her he was going through a divorce and “about the issue

14. with the minor” the sexual contact with the stepdaughter, and that he was a registered sex

offender. He said he went to jail. Over the years, Bach learned more information, like

how long father was in prison, but she “didn’t ask * * * didn’t care.” She said it did not

affect the work he was doing with her. Bach has seen father disclose his registration

status with people. She has never seen him engage in criminal activity.

{¶ 47} Bach knew father had a grown daughter who lives in the Wisconsin area.

Bach was aware father dated two people since she has known him, mother and someone

else. Bach knew mother was married when mother was with father and staying at his

house.

{¶ 48} Bach did not know that father had a conviction in another state, but she

knew there was another offense. She thought his offense was against a teenager, not a ten

year old.

{¶ 49} Bach has seen father around kids at picnics, and he has always been good.

She recalled that father babysat C.C. at least three times while mother had problems at

home or needed someone to watch the baby. Mother would bring C.C. to father’s house

and father would watch C.C. for the afternoon. Father would send Bach videos. This

was before the blood test confirmed father’s paternity and before the agency was

involved. Bach said mother knew about father’s “offense.”

{¶ 50} Bach and father discussed if father did get custody of C.C., she would help

out with school if father is not allowed on school grounds.

15. Father

{¶ 51} Father testified he is originally from Wisconsin. He found out he was

C.C.’s father through a DNA test on December 13, 2018.

{¶ 52} In 1976, in Wisconsin, father was charged with, he thought, statutory rape,

but the charge was dismissed and there was no conviction. Father said he was charged

because he “met her at a tavern. Back in the bars in Wisconsin it was 18 years old. And

she had her sister’s ID, and that’s why I met her in a bar.” One day, father was with her

in “one bar where her sister worked, and that’s when her sister jumped on me and asked

me what I was doing. And I said, what, we’re just having a couple of drinks. She said,

do you know that’s my sister and she’s under 18? I says, no, she had an ID[,] we’ve been

in four or five different bars for the past month or so.” Father said he had seen the fake

ID while he was seeing her because they were carded, and he believed she was 18 years

old.

{¶ 53} In 1984, father was charged with another crime after his wife turned him in.

He said he “discussed it with the detective and he felt that I should turn myself in, which

I did.” Father confessed and was charged with sexual assault. He did not do any jail

time, but was obligated to see a counselor, three or four times, and he was on three years

of probation. Father said he had no violations.

{¶ 54} In 1985, father said he sought and received permission from his probation

officer to move to Toledo. Father had separated from his wife as “[w]e were

recommended when I had that ’84 charge that I would not live in the house until I was

16. deemed, you know, fit to come back.” At a point, father got back together with his wife,

which he said was approved by the courts.

{¶ 55} In 1986, father was charged with the rape of his “step-daughter, same one.”

At that time, father said he was living with his wife “[o]ff and on.”

{¶ 56} In October 1987, father was sentenced to 10 to 25 years in prison. He said

he worked while in prison and also attended sex offender treatment classes, when

available, which were recommended by the counselor. Father said the classes had a great

impact on him, especially the empathy class. When asked if he thought he learned

everything that he needed to learn from the classes, father stated “I felt very confident in

myself.”

{¶ 57} In 2005, father was released from prison, and he “was required to take

another sexual evaluation during [his] parole,” which was “basically a 10 to 12-week

program to -- basically an assessment.” Father was asked if that was a condition of his

parole, and he stated “[n]o, it wasn’t. The parole officer recommended it.” Father

testified he has not been charged with any crimes since 2005.

{¶ 58} Father said he has always worked since he was released from prison, and

had his own place when he was able to afford it. When father first became involved with

the agency, he was in Florida, and worked with caseworker Cardenas.

{¶ 59} In early 2019, father began visits with C.C. Father was asked if he talked

to Cardenas about his criminal history and father said “[h]e was aware of my first one. I

informed him of my first charge. * * * I mean this previous charge, the charge I have in

17. Ohio.” Father said Cardenas did not ask for more information about the charge or any

other charges, nor did Cardenas ask father for a background check. Cardenas did

recommend father undergo a sexual evaluation; father complied.

{¶ 60} In June 2019, father’s job in Florida was completed, and he moved back to

Ohio. Father informed the agency he wanted to start regular weekly visits with C.C.

Weekly visits commenced and father only missed one visit, which was when C.C. went

out of town with the foster parents. The visits were excellent until COVID. After

COVID, video visits were set up and father made all of those visits. In-person visits

started again, and father visited with C.C. three times. The only issue with visits, of

which father was aware, was he brought sugary snacks which upset C.C.’s stomach.

Caseworker Vebenstad talked to father once or twice about this issue, and father stopped

bringing candy. The foster parents gave father a list of foods to bring to visits.

{¶ 61} Father brought toys to visits for C.C. and bought clothes for C.C. Father

was not paying child support for C.C., but was willing to do so. Father lived in a one-

bedroom apartment, but realized he probably needed a two-bedroom, so he contacted

management and was put on the list for a two-bedroom apartment. Father said “if I get

my son, I have full intentions within three to four, maybe six months to move to a two-

bedroom apartment.” The caseworker had been to father’s apartment.

{¶ 62} To meet C.C.’s day-to-day needs, father has Julie Bach as one of his

biggest back-ups. To get C.C. to school, Bach “would provide, if they required or

whatever - - I have two vehicles. One vehicle is solely designed for him so that there is

18. no smoking – nobody smokes in my place, but that vehicle is totally there and available

for him.” Father attempted to provide medical coverage for C.C., but was unable since

father does not have custody. If father was awarded custody of C.C., father would have

coverage.

{¶ 63} Father wants custody of C.C. and will foster relationships between C.C.

and his siblings and maternal family. If father is not awarded custody, he wants aunt to

be granted custody. He met aunt “only a few times briefly, maybe 10, 15 minutes.”

Father is not aware of the agency’s concerns about aunt.

{¶ 64} Father’s long-term goals include retiring when he turns 66 years old in

March 2021, since he gets his full social security. He may get a full-time job while C.C.

is in school so he could spend more time with C.C.

{¶ 65} Father must continue to register as a sex offender until 2025, and

“[b]asically the only restriction is that I cannot live within 1000 feet of a school. That’s

the last I learned.” Father does not have to report to neighbors, but does have to register

with the sheriff once a year. Father has not been in violation of failing to report or

register.

{¶ 66} On cross-examination, father was asked with how many sex offenses he

was charged, and he replied “[t]wo. Well, three but it was dismissed.” All of the charges

involved minor victims, and two charges were against his stepdaughter in separate states.

For the first charge against his stepdaughter, the counseling did not have anything to do

with recidivism or reoffending, it was for the family. After he was convicted of rape in

19. Ohio and sent to prison, he received aftercare, which he remembered “pretty well, very

well.” Father recalled the programs were for empathy, “[s]tress management, how to

control it.”

{¶ 67} Father acknowledged he had said that the conduct with his stepdaughter

was consensual. He explained “[a]t that time I talked her into it and she agreed to it, but

during the case, I mean, the programs and everything I learned to realize that I was the

adult. It was my fault and I accept full responsibility. She was young.”

{¶ 68} Father disclosed his Ohio conviction to the agency but did not disclose his

Wisconsin conviction to the agency because “I figured the most recent conviction,

they’re well aware of my conviction. And truthfully, I don’t want to lie, if they would

have asked, I would have disclosed it.” Father was asked if it was correct that the agency

did not ask about the first conviction, and father relied “[n]o, I informed them which I

turned around and found out that [C.C.] was my biological family. I felt they had the

right to know.” Regarding the first conviction, father said “[t]hey never asked me, sir. I

was giving [sic] them aware of the charge in Ohio. If they would have asked me for any

previous or anything, I reluctantly would have not held anything from them.”

{¶ 69} With respect to mother, father met her through a friend, and their

relationship started out as a friendship. “We were off and on. I mean, there were times

that she needed a place to stay. I invited her to stay when I was out of town and she

looked after my stuff. * * * She lived at times, off and on. * * * [s]he did housework.”

When asked about mother being married, father said “I basically didn’t know. She said

20. she was separated and he was living in Georgia.” Father did not know the age difference

between him and mother, but conceded he was 66 years old and thought she was about 30

or 31 years old, so the age difference was about 36 years.

{¶ 70} Father said the statutory rape charge from 1976 involved a sixteen year old,

and the sexual assault victim in Wisconsin was “I think 10 or 11.” The same victim was

raped in 1986 when she was 13 years old.

{¶ 71} Father has a daughter who is “about 36” and lives in Wisconsin. He does

not have a relationship with her because “[p]art of the empathy thing is how an adult

raises a kid. I had the feeling that it was her mother that brought her up that, you know, I

was bad, that she shouldn’t associate with me.” The mother of his daughter is his ex-

wife, and the ex-wife is also the mother of the victim father raped. Father’s ex-wife

raised his daughter.

{¶ 72} Father agreed he told Bach about his background right away as “that’s part

of -- that’s me. That’s why I felt that any lady should be comfortable to be with me or

not. I mean, it’s just the way I felt.” He did not tell her his whole criminal background in

the beginning, he “just informed her that [he] was a registered sex offender for rape.”

She did not ask him with how many crimes he was charged, he volunteered it. But, he

did not volunteer all of the sexual charges to the agency. Father stated he “didn’t

minimize. All they had to do was ask. I’m sorry. I probably should have divulged it, but

at that moment I basically was informing them of this, you know, charge in the state of

Ohio.”

21. {¶ 73} When father was asked how he would get C.C. to school, be involved in

school and register him for school, father said “As Julie Bach stated, she is willing to help

me to places that I cannot be. And there are other friends that are volunteering that said

that they would, but, you know, I don’t care. You know, if they want to bring

outstanding lists to this court, there is quite a few people that are willing to help me.”

Father also stated “[a]nd I kind of figured maybe once we get together, her family.”

{¶ 74} Father knew about the permanent custody hearing for about a month.

Father did not know if he was allowed to drop C.C. off at school or pick him up from

school, and he has not contacted the school to find out if there were restrictions. He

looked into daycares and babysitters for C.C., but did not find out if there were any

restrictions based on his sex offender registration.

{¶ 75} The court asked father when he got sex offender treatment and he

responded while he was incarcerated. The court thought that was aftercare, and asked

when father got the treatment that leads up to aftercare. Father asked what aftercare was,

and the court referenced the certificates that say he had aftercare in prison. Father replied

“[t]here were programs in the institution and when you complete all the programs in the

institution, then you can continue with the aftercare program to make sure that -- they’ll

help you and guide you as, you know, upon release that nothing will reoffend.”

{¶ 76} Father had a prevention plan, which was “[s]eek counseling if you feel

down or whatever, talk with family, friends * * * and be able to be open-minded and be

able to display and express if there is something wrong.” Father informed the caseworker

22. about the plan but did not provide her with a copy. When asked if he talked to the agency

about his specific prevention plan, he said “[t]hey basically never asked me for one.”

{¶ 77} With respect to the assessment by Dr. Tamara Harden, father was asked if

he was aware that the doctor found his symptoms were out of proportion regarding stress,

and as a result father was diagnosed with adjustment disorder with anxious mood. He

said “the reason why he [sic] asked me about the stress * * * is I told him [sic] yes

because I did not know exactly how it was going with me and my son. Any person

would be stressed.”

{¶ 78} Father did not know the name of C.C.’s doctor because the agency “has

control which I, you know, I have no control over.” Father asked the foster parents

“every time, well, how is he doing,” and father was informed about C.C.’s health. Father

did not contact a pediatrician before the hearing to find out if he could personally take

C.C. there.

Grandmother

{¶ 79} Grandmother testified her daughter, C.C.’s mother, has three children.

Grandmother is raising the oldest child, who is 11 years old, grandmother’s sister is

raising the middle child, who is almost 6 years old, and C.C. is with foster parents. The

oldest child has been in grandmother’s care since he was 4 years old, and grandmother

has legal custody of him, and mother had supervised visits. Grandmother is seeking legal

custody of the middle child and mother signed a waiver of conflict in agreeance. No one

has been able to locate the middle child’s father.

23. {¶ 80} Grandmother has not been able to see the middle child “[s]ince this all has

occurred with mother.” The oldest and middle child had a relationship before the case

started but grandmother’s sister will not let the middle child see the oldest child or C.C.

{¶ 81} Regarding mother’s supervised visits with the oldest child, grandmother’s

understanding was that someone over 18 years old could supervise. Grandmother let

mother’s husband supervise the oldest child because the husband did not have a criminal

background and he lived with mother. Grandmother “didn’t realize that the attorney had

put names of certain people” who could supervised the oldest child until mother “got into

trouble and [the agency] came over to the house to investigate and talk to us.”

{¶ 82} Grandmother is employed and does not have a criminal history. She said

C.C. was removed from mother’s care in 2018, when he was one, and went “with [the

agency] and I’m assuming into foster care.” C.C. was then placed with grandmother, in

November 2018, while he was still one. C.C. was not yet talking, but grandmother did

not think he had a speech issue. She read to C.C. at bedtime, which is what the foster

parents said they did. Grandmother sought legal custody of C.C. and was working with

caseworker Cardenas. She was told she would get help paying for daycare, clothing and

food for C.C., and get cash assistance. Grandmother applied for those benefits but she

did not quality because she earned too much money. Grandmother gave C.C. back to the

agency in March of 2019, because she could not take care of him. She visits with C.C.

once a month for about an hour. She has a good relationship with C.C.’s foster parents.

24. {¶ 83} Grandmother talked to Cardenas about placements for C.C. including a

friend, another sister and aunt; Cardenas said the agency would not look at anybody

under the age of 21. Grandmother stated when C.C. was placed with her, Cardenas had

aunt come down and get fingerprinted, and he said she could babysit for C.C. Aunt did

babysit C.C. when grandmother went to work and aunt did a good job. When Kari

Vebenstad was working as the caseworker, grandmother told Vebenstad that aunt “was

interested in getting him. But she’s not of age.”

{¶ 84} Grandmother said mother and aunt are about nine years apart and love each

other but do not “hang out or do anything.” Mother has had issues with drugs and

alcohol since high school, which caused problems in the family.

{¶ 85} Mother’s oldest child is a straight A student and likes sports, and he goes to

visits when grandmother sees C.C., so he can see his little brother. The oldest child talks

to mother on the phone, but grandmother will not allow him to be alone with mother.

{¶ 86} On cross-examination, grandmother was asked if she lost visitation with

C.C. because she kept asking Vebenstad about mother’s husband visiting with C.C.

Grandmother responded that husband has taken care of C.C. and has been the father

figure in C.C.’s life. Grandmother was also asked if she told the agency the aunt was

interested in C.C. before aunt’s domestic violence charges. Grandmother was unsure but

aunt was fingerprinted and babysat C.C. prior to the domestic violence charges.

{¶ 87} Grandmother had concerns regarding C.C.’s safety if father were awarded

custody because of father’s record. She was aware father is a sex offender, as she looked

25. him up on the internet. Grandmother would not want C.C. to be unsupervised with

father.

{¶ 88} Regarding grandmother’s sister, who has the middle child, grandmother

said her sister has held a grudge ever since grandmother informed the court, during a case

between mother and grandmother’s sister regarding the middle child, that “my dad

[C.C.’s great-grandfather] had just got out of jail and [was] living with my sister, and he’s

a sex offender and just got out of jail.”

Aunt

{¶ 89} Aunt testified she has two children, a three year old and a 10 month old;

her three year old and C.C. are eight days apart. She works at the 7-Eleven on the

turnpike, and has been there since June 1, 2020. Before that, aunt worked at a Sunoco

and a greenhouse, but “quit those jobs to go back to the turnpike because it pays more.”

{¶ 90} Aunt acknowledged she has a history with FCCC, and “[t]he first reason

for involvement was a domestic violence on my son’s dad [boyfriend] when I was

pregnant with my daughter.” “[T]he second one was for me testing positive for

marijuana at the hospital with my daughter.”

{¶ 91} Regarding the domestic violence charge, aunt did not have to do any

classes or services with FCCC, but she was visited frequently “for the domestic violence

to make sure nothing was majorly wrong at home. And they basically observed how me

and [boyfriend] were together and with the kids.” Boyfriend is the father of her children.

26. {¶ 92} When aunt was charged with domestic violence, she was “very hormonal

with the pregnancy and stressed out and irritated quick.” As a result of the charge, she

“had went to CCNO for a couple of days * * * [a]nd then we were going to court together

for that case, and they had dismissed the charge there.”

{¶ 93} With respect to smoking marijuana, “[FCCC] had the case open for maybe

a month after I tested positive. They visited me at my home three times * * * [a]nd they

had mouth swabbed me and [boyfriend] all the times. And basically we made an

agreement that we don’t smoke around the kids and don’t smoke often, and she basically

closed the case after that.”

{¶ 94} Aunt smokes marijuana to help with anxiety and depression. She has been

prescribed two kinds of medicines which she “didn’t feel like that helped at all. It

actually made me worse. And I talked to both doctors about my marijuana use for my

anxiety and things, and they’re willing to go further to try to get me legal * * *.”

{¶ 95} Aunt said in some respects, mother has ruined aunt’s life, as aunt did not

really have a childhood because aunt had to help grandmother raise mother’s oldest child

since aunt was nine years old. Aunt does love mother. Aunt would not trust mother

alone with C.C. or aunt’s children, “[a] big part of it is because I do not want to end up

where she is over a little mishap happening, and it could be bigger than that because of

other reasons. And I’m trying to have stability for my kids and my nephew and not to

have people in and out of their lives like she kind of had with [mother’s oldest child].”

When asked what she meant, aunt said “I don’t honestly know everything about this case,

27. and I don’t really know. I just feel like if a kid were to be injured that I’m fully

responsible for[,] out of my supervision, then it would all go back on me because I have

custody. It’s all my responsibility so therefore, no, I wouldn’t let him go without my

supervision.”

{¶ 96} Aunt did not recall speaking with caseworker Cardenas, but she did get

fingerprinted because “[the agency] wanted me to be a babysitter for my mother when

she got custody of him [C.C.].” When aunt was asked if she ever asked for custody of

C.C., she responded “I told them [the agency] I would be willing to take [C.C.] * * *

[but] [t]heir policy was you couldn’t basically get the kid in your custody until you were

21.” Aunt was fingerprinted before the domestic violence charge.

{¶ 97} Concerning boyfriend, he does not live with aunt, but he often spends time

at aunt’s home. Boyfriend lives with his parents, and aunt and the children spend time

with him there. Aunt’s rent is set at zero, as she has subsidized housing through “Fulton

County Section 8.” She has a two-bedroom, one bathroom apartment. While aunt works,

usually boyfriend watches the children. Boyfriend is “by [aunt’s] side through

everything,” specifically getting C.C. Boyfriend has a felony conviction involving a gun

when “he got in a conflict at the park, and then the police found a gun * * * [a]nd then

they gave him probation * * * and he messed up probation for not going into a hearing

with the probation officer. And then they sent him to prison for nine months for that

charge.” Boyfriend was in prison about four years ago, while aunt was pregnant with

their son. Boyfriend is 24 years old, unemployed, but looking for work.

28. {¶ 98} Aunt did not know how to go about getting custody of C.C., although she

wanted C.C. from the beginning, meaning “[t]he day I found out my sister was in prison

and her kids got taken from her” or after C.C. was removed from grandmother’s care.

Aunt talked to grandmother, who talked to the lawyer “and that’s when I was informed

that I had to go down to the courts and get a motion for full custody. And that’s what I

did.” Aunt thought the motion was filed in May or June, and she was shown the pro se

complaint for custody, which was filed April 10, 2020.

{¶ 99} Aunt said caseworker Vebenstad came out to aunt’s home on July 7, 2020,

and asked aunt why mother was in prison and why C.C. was in the agency’s care.

Vebenstad asked if aunt “had CSB cases,” and aunt disclosed her marijuana use. Aunt

has not asked to see C.C. because of COVID, but she video-chatted with him on his

birthday.

{¶ 100} On cross-examination, aunt testified she has never been to counseling for

her anxiety or depression. When asked if it could have been important to speak with a

counselor before self-medicating with marijuana, aunt answered “[i]n a way, but I

honestly am not the type of person to come out about all of my issues. So I just kind of

cope by myself with anything and I don’t use marijuana for everything.” Boyfriend also

smokes marijuana, but she does not know exactly why he smokes, although “he does to

calm down his ADHD.”

{¶ 101} Aunt was asked if she had an opinion about whether or not mother could

be responsible for the injuries to the child, and aunt said “I don’t really have an opinion.”

29. Juvenile Court’s Decision

{¶ 102} Immediately following the hearing on July 17, 2020, the juvenile court

announced that it found there was clear and convincing evidence that it was in C.C.’s best

interest for permanent custody to be granted to the agency. The court supported its

finding by citing to R.C. 2151.414(B)(1)(a), (D)(1)(a) and (d), and (E)(7)(d). The court

said it was not comfortable placing a small child with father because of his crime. The

court also stated C.C. would be “8 or 9 when you [father] get off the registry. And he’s

going to start school with restrictions about what you’re allowed to do with him at school.

He’s going to start school with a stigma attached, unfortunately, because believe me

parents will know that he’s the son of a sex offender registrant. And from [C.C.’s]

standpoint that’s not in his best interest.” The court observed “the professional here

today felt that you posed no risk in the community, but you never did pose a risk in the

community. It was in your own home.”

{¶ 103} On August 12, 2020, the juvenile court issued its judgment entry, in case

Nos. JC 18269710 and JC 20280028, in which it granted permanent custody of C.C. to

the agency. The court made the following findings, by clear and convincing evidence,

with respect to father: he has not taken the appropriate steps to prepare for the possibility

of obtaining custody of C.C.; C.C. cannot be placed with father within a reasonable time

and should not be placed with father; and father cannot provide an adequate, safe and

permanent home for C.C.

30. {¶ 104} The court observed, as it relates to father, that Dr. Harden made no

reference in her initial sexual offender assessment report to father’s prior out-of-state

conviction for sexual assault, but when the doctor released a subsequent report, she

indicated father had disclosed the conviction to her. The court noted “it was pointed out

that Dr. Harden did not have access to her old records when she completed the update

several months later * * * from memory. It was also brought up that she had

approximately ten clients when she completed [father’s] initial assessment. Nevertheless,

the testimony from Ms. Harden was that [father] was a ‘low risk’ in the community.”

{¶ 105} The court further noted there was “no evidence that [father] has been in

any type of sex offender counseling, programs, or aftercare since 2002. Given that his

prior sexual based criminal convictions were for acts committed against a child in his

own home, this court still has concerns and is not convinced he offers no risk to a child

inside his home.”

{¶ 106} The court also observed that the GAL voiced concerns about father’s

criminal history and the GAL did not feel C.C. would be safe in father’s home.

{¶ 107} The court further found, based on C.C.’s custodial history, C.C. has been

in the agency’s custody for 12 of the past 22 consecutive months, and permanent custody

is in C.C.’s best interest. The court also found the agency made reasonable efforts to:

avoid C.C.’s continued removal from the home; implement and finalize a permanent plan

by providing case plan services and requesting permanent custody with a case plan goal

of adopting; and explore multiple placements, including out-of-state relatives. The court

31. found C.C. is thriving in his foster home, all his needs are met and delaying permanency

does not serve C.C.’s best interest as the agency has identified the foster parents as a

potential adoptive home.

The Appeal

Standard - Permanent Custody

{¶ 108} A juvenile court’s decision in a permanent custody case will not be

reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,

6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th

Dist. Franklin Nos. 03AP-1167 and 03AP-1231, 2004-Ohio-3312, ¶ 28. “The underlying

rationale of giving deference to the findings of the juvenile court rests with the

knowledge that the juvenile judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984). Furthermore, “[e]very reasonable presumption must be

made in favor of the judgment and the findings of facts [of the juvenile court].” Karches

v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). Therefore, a judgment

supported by some competent, credible evidence going to all essential elements of the

case is not against the manifest weight of the evidence. Id.; C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 109} The juvenile court may grant permanent custody of a child to a children

services agency if the court finds, by clear and convincing evidence: (1) the existence of

32. at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the

child’s best interest is served by granting permanent custody to the agency. In re M.B.,

10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6; R.C. 2151.353(A)(4).

{¶ 110} R.C. 2151.414(B)(1)(a) provides that “the child cannot be placed with

either parent within a reasonable period of time or should not be placed with either

parent.” R.C. 2151.414(E) requires a juvenile court to find that a child cannot be placed

with either of the child’s parents within a reasonable time or should not be placed with

either parent if any one of sixteen factors are met. R.C. 2151.414(E)(1)-(16). R.C.

2151.414 (E)(7)(d) states in relevant part, “The parent has been convicted of or pleaded

guilty to * * * [a]n offense under section [R.C.] 2907.02 [rape], * * * and the victim of

the offense is * * * another child who lived in the parent’s household at the time of the

offense.”

{¶ 111} To satisfy the best interest prong of the permanent custody test, the

agency must establish, by clear and convincing evidence, that permanent custody to the

agency is in the best interest of the child based on an analysis under R.C. 2151.414(D).

The juvenile court must consider all relevant factors, including: the interaction and

interrelationship of the child with parents, siblings, relatives and foster caregivers; the

custodial history of the child; and, the child’s need for permanence. See R.C.

2151.414(D)(1)(a), (c) and (d).

{¶ 112} Clear and convincing evidence requires proof which “produce[s] in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

33. established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus. In order to determine whether a juvenile court based its judgment

on clear and convincing evidence, the reviewing court examines the record to decide

whether the trier of fact had sufficient evidence before it to satisfy the appropriate degree

of proof. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).

Father’s Assignment of Error

{¶ 113} Father argues the juvenile court’s decision to deny him custody of C.C.

and terminate his parental rights was based primarily on his actions in 1984 and 1986,

which resulted in convictions for very serious sex crimes. Father was in prison for 18

years during which he made numerous efforts to obtain treatment which would prevent

reoffending, including sex offender treatment and aftercare. Father contends he also

made numerous efforts to obtain treatment upon his release from prison, which consisted

of a voluntary sexual conduct evaluation program.

{¶ 114} Father submits he sought to establish paternity when he became aware

that he may be C.C.’s father, and he then made every effort to involve himself in C.C.’s

life by visiting with C.C. Father will provide for his son financially and emotionally.

{¶ 115} Father asserts the assessment which Dr. Harden performed provides an

expert opinion that he poses a low risk “of any recurrence of his past behavior.”

{¶ 116} Father maintains the agency failed to meet its burden by proving, by clear

and convincing evidence, that it is in C.C.’s best interest to terminate father’s parental

rights and award permanent custody to the agency.

34. {¶ 117} The agency counters that based on father’s criminal history and his failure

to disclose his prior sex offenses to the agency, it was properly determined it was not in

C.C.’s best interest to be placed with father. Relative placements were investigated, but

were not successful.

Analysis

{¶ 118} Upon review, the juvenile court found, pursuant to R.C. 2151.414(B)(1)(a),

that C.C. could not be placed with father within a reasonable time or should not be placed

with father, and also found R.C. 2151.414 (E)(7)(d) applied, as father was convicted of the

rape of a child who lived in his household.

{¶ 119} Based on our review of the record, as summarized above, we conclude

there is clear and convincing evidence in the record to support the juvenile court’s

determination that C.C. could not and should not be placed with father. In particular, the

record shows father only became involved in C.C.’s life when the child was one and

one-half years old, as father was not aware until then that he was C.C.’s biological father

since mother was married to someone else when C.C. was conceived. Father is a

registered sex offender until 2025 and he has not undergone treatment since being

released from prison in 2005. Father plans to use his friend, who has never met C.C., to

help with C.C. in the event father is precluded from participating due to his sex offender

status. And C.C. would have a stigma attached to him due to father’s sex offender status.

Further, father was not forthcoming in disclosing his full history of sex crimes against

minors to the agency.

35. {¶ 120} We also conclude there is clear and convincing evidence in the record to

support the juvenile court’s finding that father was convicted of raping his minor

stepdaughter.

{¶ 121} As to the best interest prong of the permanent custody analysis, the

juvenile court considered, pursuant to R.C. 2151.414(D)(1)(a), (c) and (d), the interaction

and interrelationship of C.C. with his parents, siblings, relatives and foster parents, C.C.’s

custodial history and C.C.’s need for permanence. The juvenile court found, by clear and

convincing evidence, that an award of permanent custody was in C.C.’s best interest.

{¶ 122} Upon this record, we conclude there is clear and convincing evidence to

support the court’s determination that an award of permanent custody to the agency is in

C.C.’s best interest. Specifically, the record reveals C.C. has been in his foster home for

the majority of his life, and was doing very well and thriving in the foster home. C.C.’s

foster parents were a potential adoptive home for C.C. Given C.C.’s young age, he was

not able to express his wishes, but the GAL did not feel C.C. would be safe in father’s

home. While C.C. and father’s interaction during supervised visitations was appropriate,

the court was concerned about father’s risk to C.C. in father’s home, since father’s

sexual-based criminal convictions were for acts committed in the home.

{¶ 123} Based on the foregoing, father’s assignment of error is found not

well-taken.

36. {¶ 124} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court

costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Gene A. Zmuda, P.J. _______________________________ Myron C. Duhart, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

37.