In re C.P.

2021 Ohio 4504

Opinion

[Cite as In re C.P., 2021-Ohio-4504.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: C.P. and G.P. : : : Appellate Case Nos. 29209 and 29210 : : Trial Court Case Nos. : F-2013-005274-0K, 0L, 0O and : F-2019-002065-0F, 0G, 0J : : (Appeal from Common Pleas Court- : Juvenile Division)

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OPINION

Rendered on the 22nd day of December, 2021.

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470 and J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorneys, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Appellee, Montgomery County Children Services

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Dayton, Ohio 45422 Attorney for Appellant, Father

P.J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Appellant, Mother

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TUCKER, P.J. -2-

{¶ 1} The Montgomery County Court of Common Pleas, Juvenile Division, granted

permanent custody of Mother and Father's two minor children, C.P. and G.P., to

Montgomery County Children Services (“MCCS”). Both parents appeal, arguing that the

court’s decision was not supported by the evidence. After reviewing the record, we

disagree, and we affirm the trial court's judgments.

I. Factual and Procedural History

{¶ 2} Mother and Father are an unmarried couple who appear to have lived

together on and off for a number of years. In May 2013, when Mother gave birth to C.P.,

both Mother and C.P. tested positive for opiates. MCCS filed a complaint alleging C.P.

to be abused and dependent. Following an adjudication finding that C.P. was abused

and dependent, she was placed in the legal custody of Father. On January 3, 2019,

following a law enforcement removal, C.P. was placed in the temporary custody of MCCS.

C.P. is severely autistic and has limited verbalization ability.

{¶ 3} Mother gave birth to G.P. on March 13, 2019. The birth took place in a home

in Dayton. After giving birth, Mother tied the umbilical cord with a shoe lace and called

911. Mother and G.P. were transported by ambulance to Miami Valley Hospital, where

the child tested positive for drugs. G.P. weighed only three pounds and her body

temperature was dangerously low. G.P. required two days of medical intervention in

order to stabilize her temperature. She remained hospitalized until she reached the

approximate gestational age of 35 weeks and no longer required supplemental oxygen.

Mother left the hospital against medical advice on the day of the birth. G.P. was

discharged from the hospital on April 23, 2019 and was placed in the temporary custody -3-

of MCCS. MCCS filed a dependency and abuse complaint. G.P. was adjudicated

abused and dependent on November 1, 2019, and the court ordered her to remain in the

temporary custody of MCCS.

{¶ 4} On October 21, 2020, MCCS filed a motion for permanent custody of both

children. A hearing was conducted on June 10, 2021.

{¶ 5} At the hearing, the guardian ad litem (GAL) testified that he was appointed

to the case in May 2020. From the time of his appointment until the hearing, the GAL

had not been able to contact Mother and, thus, had not seen her with the children. The

GAL testified he had visited Father’s home four times, with the most recent visit being on

May 28, 2021, approximately two weeks prior to the hearing. According to the GAL,

Father’s home was cluttered and had cords and wires lying loose around the house. The

GAL also testified that the floors were loose and chipped in numerous places and that

carpet strip tacks were exposed in some places. There was no mattress for the bed

Father planned to use for C.P. The GAL testified that Father would not permit him to

view the entire home. The GAL testified that, despite receiving instructions about how

to make the home safe for the children, Father had made no progress in doing so.

{¶ 6} The GAL testified that Father had made threats of violence against the

prosecutor, the magistrate originally assigned to the case, and the staff at MCCS

throughout the course of the proceedings. He testified that Father had not completed

treatment for his mental health issues. Further, Father continued to have contact with

Mother despite her continued substance abuse.

{¶ 7} The GAL further testified that, during visitations, he had observed Father

speak inappropriately to the children and threaten them with corporal punishment. The -4-

GAL heard Father tell C.P. he wanted to, but could not, “beat” her “a**” while in the

presence of the GAL and a caseworker. The GAL also testified that he had observed

Father dragging C.P. by the arm during visitations. The GAL testified that the children

were “familiar” with Father, but not bonded to him. Tr. p. 31. The children were doing

well in foster care and were bonded to the foster family. The GAL recommended that

the court award permanent custody to MCCS.

{¶ 8} Beth Pfoutz also testified at the hearing. Pfoutz had been the caseworker

for the family since December 2018. According to Pfoutz, Father’s case plan required

him to do the following: (1) maintain clean, safe housing; (2) not allow drug use or have

drug paraphernalia at the house; (3) consistently exercise visitation; (4) attend parenting

classes; (5) undergo a psychiatric evaluation and follow all recommendations stemming

therefrom; (6) refrain from verbal aggression and threats; and (7) sign releases for

information. Pfoutz testified she made all referrals necessary for completion of the case

plan.

{¶ 9} Pfoutz corroborated the GAL’s testimony regarding Father’s failure to

maintain safe housing. Pfoutz testified that the house was dirty, cluttered, and not safe

for small children. For instance, she testified that she observed a mirrored closet door

that was propped up against a wall. She also testified there were cords and wires

exposed in the home.

{¶ 10} Pfoutz testified that Father had not completed the psychiatric treatment

requirements because he was terminated from a treatment program when he could not

be contacted to schedule appointments. Pfoutz also testified that Father was not able to

self-regulate and got angry and made threats of physical violence. According to Pfoutz, -5-

Father conducted on-line research regarding all the people working on this case, including

the magistrate originally assigned to the case. Father made threats toward the

magistrate and her children and asked Pfoutz how she thought “certain individuals would

act if he put a gun in their child’s mouth and pulled the trigger.” Tr. p. 117. Thereafter,

the magistrate was removed from the case for her safety. Pfoutz also testified that

Father was trespassed from Miami Valley Hospital due to his behavior during G.P.’s

hospitalization. He also had been trespassed from Dayton Children’s Hospital due to

unacceptable behavior when C.P. underwent surgery to insert tubes into her ears. 1

Finally, he was trespassed from MCCS premises after making threatening statements

toward staff.

{¶ 11} According to Pfoutz, two adults died from drug overdoses while in Father’s

home, and Mother used drugs while living in that home. Pfoutz testified that despite the

requirement he not permit drug use in the home, Father continued to have a relationship

with Mother. We note that Father testified at the hearing that he would not allow Mother

into the home, but his testimony appeared to admit that he had not actively barred her

from the home as of the date of the hearing.

{¶ 12} Pfoutz testified that Father had been consistent in attending visitation and

that he had attended parenting classes. However, Father continued to act

inappropriately in the presence of the children. According to Pfoutz, Father got frustrated

when C.P., who, as noted, is severely autistic, did not mind him or acted out, and the

more frustrated or angry Father became, the more C.P. acted out. The record supported

1 Father informed the caseworker that he would have the tubes removed when C.P. was returned to his custody. -6-

a finding that Father hit C.P. during a visitation, although he disputed this. Additionally,

Pfoutz testified that she had heard Father ask C.P. why she was having a “retard fit?”

Tr. p. 114. She further had heard Father intimate to the children that he was going to

cause the people involved with the case to die. Pfoutz testified that she observed C.P.

refer to the foster mother as “mom” during a visitation, and she then overheard Father

state to C.P., “I’m gonna have to whoop [your] a** for weeks when you get home to break

you of these behaviors.” Pfoutz testified that Father continued to engage in this type of

behavior despite being advised it was not acceptable.

{¶ 13} Further, although not a part of the case plan, Pfoutz testified that Father had

no source of income. She testified that he informed her that he was employed by two

federal agencies, but she had been unable to verify this claim. Father also claimed to

own a food truck, but the truck was not registered and was not then being used.

{¶ 14} Finally, Pfoutz testified that she thought Father and the children were

bonded. However, she also testified that the children were doing very well in their foster

home and the foster parents were willing to adopt them.

{¶ 15} Father also testified at the hearing. He stated he had cleaned the house

and that he planned to carpet the girls’ bedroom and get a mattress for C.P. He further

testified that he was preparing the food truck for use in order to generate an income.

{¶ 16} Father testified that he was “aggravated” and “mad” that C.P. had had

surgery to place tubes in her ears and that she had been taken to the dentist. Father

stated that, if C.P. were returned to him, he planned to take her to a “marijuana doctor”

because he had read that marijuana oil would help her to verbalize. He further stated

that after he sued everyone involved in taking his children out of his home, he would have -7-

C.P. privately tutored at home. He then stated he was going to purchase a home in

Canada.

{¶ 17} On cross-examination, Father admitted the water in his home had recently

been shut off, but he claimed it had been turned back on. Father also denied having a

criminal history. When confronted with a question regarding a conviction for aggravated

menacing, he admitted the conviction but opined that he did not do anything wrong.

Father further admitted that he had been required to undergo a psychiatric evaluation as

part of his probation for the criminal case, but he intimated he did not cooperate because

he thought the evaluator was “sticking her nose in where it didn’t belong.” Tr. p. 201.

Father also claimed he was shot in Afghanistan during the 1980s when he was “looking

for Bin Laden.” Tr. p. 202. Finally, Father admitted his stepson and Mother’s sister had

both died in his home by overdosing on drugs.

{¶ 18} Following the hearing, the juvenile court awarded permanent custody of

both children to MCCS. Both Mother and Father appeal.

II. Analysis

{¶ 19} Although stated differently in their separate assignments of error, both

Mother and Father assert that the juvenile court’s decision awarding permanent custody

to MCCS was not supported by the record.

{¶ 20} R.C. 2151.414(B)(1) sets forth a two-part test to be used when deciding

motions seeking an award of permanent custody to a public services agency. This

statute requires courts “to find, by clear and convincing evidence, that: (1) granting

permanent custody of the child to the agency is in the best interest of the child; and (2) -8-

either the child (a) cannot be placed with either parent within a reasonable period of time

or should not be placed with either parent if any one of the factors in R.C. 2151.414(E)

are present; (b) is abandoned; (c) is orphaned and no relatives are able to take permanent

custody of the child; or (d) has been in the temporary custody of one or more public or

private children services agencies for twelve or more months of a consecutive twenty-two

month period.” In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing

In re K.M., 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8.

{¶ 21} There is no dispute the children were in the custody of MCCS for 12 or more

months of a consecutive 22-month period. As a result, the only issue before us is

whether awarding permanent custody to MCCS was in the best interest of the children.

In this regard, “R.C. 2151.414(D) directs the trial court to consider all relevant factors

when determining the best interest of the child, including but not limited to: (1) the

interaction and interrelationship of the child with the child's parents, relatives, foster

parents and any other person who may significantly affect the child; (2) the wishes of the

child; (3) 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;

(4) the child's need for a legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody to the agency; and (5)

whether any of the factors in R.C. 2151.414(E)(7) through (11) are applicable.” S.J. at ¶

15.

{¶ 22} We begin by noting that Mother did not seek custody of the children and

does not assert on appeal that the court erred by terminating her parental rights. Instead, -9-

Mother’s entire appeal is directed to her claim that the court should have granted custody

to Father. Thus, we will not address the juvenile court’s best interest findings as they

pertain to Mother except to note that the record supports a finding that Mother continued

to use drugs, had failed to comply with her case plan, and had no interaction or

relationship with the children. Indeed, the record supports the juvenile court’s finding

that Mother had abandoned the children. R.C. 2151.414(E)(10) and R.C. 2151.011(C).

{¶ 23} The evidence in the record supported findings that Father loved the children

and had consistently exercised his visitation with them. However, both the GAL and the

caseworker expressed concerns regarding Father’s behavior and interactions with the

children during visitation. The GAL testified that the children were not bonded to Father.

While the caseworker testified that the children appeared to be bonded with him, she

qualified her statement by noting that G.P. appeared comfortable around Father, but C.P.

did not like to be around him when he yelled. Indeed, the caseworker testified that C.P.

would cover her ears and try to comfort herself when Father shouted. The caseworker

noted that Father’s poor behavior often caused C.P. to act out, which, in turn, caused

Father to become more agitated. Both the caseworker and the GAL testified that the

children were bonded with the foster family and were doing well in that setting. The foster

parents were meeting C.P.’s special needs as well as her medical needs.

{¶ 24} The wishes of the children were not ascertainable. C.P. was unable to

adequately relate her wishes due to her autism and inability to verbalize. G.P., who was

only two at the time of the dispositional hearing, was too young to express her wishes.

The GAL made a recommendation that MCCS be awarded permanent custody of the

children. -10-

{¶ 25} At the time of the dispositional hearing, the children had been residing with

the foster family for more than two years. Neither child returned to Father’s home or had

overnight visitation with him during that time. Thus, as stated above, the children had

been in the temporary custody of MCCS for 12 or more months out of a consecutive 22-

month period.

{¶ 26} The court found that the children were in need of a legally secure

placement. Although Father wished to be reunified with the children and had completed

some of his case plan, the court found “multiple barriers to reunification exist.”

Specifically, the court found that Father’s home was not suitable for the children and that

Father had failed to remedy the issues with the house despite having more than a year

to do so. The court further found Father’s interactions with the children to be

problematic. The court also called into question Father’s medical choices regarding C.P.

The court found Father’s failure to complete mental health treatment troubling, given his

inability to control his behavior around the children and his use of threats toward others.

Based upon these findings, the court concluded a legally secure placement could only be

achieved by a grant of permanent custody to MCCS.

{¶ 27} A juvenile court's decision to terminate parental rights and to grant

permanent custody to a children services agency must be supported by clear and

convincing evidence. In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14.

“Clear and convincing evidence is that measure or degree of proof which is more than a

mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. -11-

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. We

apply an abuse-of-discretion standard, and we will not disturb a permanent custody

decision “if the record contains competent, credible evidence by which the court could

have formed a firm belief or conviction that the essential statutory elements for a

termination of parental rights have been established.” (Citation omitted.) Id. The phrase

“abuse of discretion” implies a decision that is unreasonable, arbitrary, or unconscionable.

In re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-5697, ¶ 7.

{¶ 28} After a review of the record in this case, we cannot say the juvenile court

abused its discretion. The record contains competent and credible evidence supporting

the court’s finding that the interests of the children are best served by awarding permanent

custody to MCCS. Accordingly, Mother’s and Father’s assignments of error are

overruled.

III. Conclusion

{¶ 29} The judgments of the juvenile court are affirmed.

WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter J. Joshua Rizzo Robert Alan Brenner P.J. Conboy, II John C. Meehling Michael Porter Hon. Helen C. Wallace