In re F.B.

2020 Ohio 5610

• Court: Ohio Court of Appeals
• Decided: December 9, 2020
• Docket: C-200320
• Status: Published

Opinion

[Cite as In re F.B., 2020-Ohio-5610.]

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

IN RE: F.B., S.B., and H.B. : APPEAL NO. C-200320 TRIAL NO. F11-582X :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 9, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

Kathleen Kenney, for Appellee Guardian ad Litem for S.B. and H.B.,

Ed Clore, In re Williams Attorney for F.B.,

James A. Anzelmo, for Appellant Father. OHIO FIRST DISTRICT COURT OF APPEALS

Z AYAS , Judge.

{¶1} Appellant A.B. (“Father”) appeals from a judgment of the Hamilton

County Juvenile Court that terminated his parental rights and placed his three

children, F.B., S.B. and H.B., in the permanent custody of the Hamilton County

Department of Job and Family Services (“HCJFS”). For the following reasons, we

affirm.

Facts and Procedural History

{¶2} F.B. (born on October 10, 2007), S.B. (born on December 1, 2008),

and H.B. (born on October 6, 2009) are the children of Father and D.B. (“Mother”),

who died from a terminal illness in February 2017. At the time of Mother’s death,

Father and Mother were separated and living apart. The children were living

exclusively with Mother in Cincinnati, Ohio, while Father was living in Michigan.

{¶3} Prior to Mother’s death, the children had been on an HCJFS safety

plan for several weeks due to the condition of their home, the children’s hygiene, and

the effects of Mother’s medication for her terminal illness. On January 31, 2017, the

children were removed from her care by HCJFS for a violation of this safety plan.

Specifically, the children were not to be in contact with their uncle, Vincent Hillman,

as Hillman had abused F.B. through “excessive physical discipline.” However,

HCJFS learned that Hillman was driving Mother and the children in his van when he

fell asleep at the wheel and crashed into a bus. All three children were hospitalized

as a result of this accident.

{¶4} Upon Mother’s passing, Father traveled to Cincinnati from Michigan

to attend the funeral service on February 17, 2017, but returned to Michigan

afterwards. At that time, Father had not seen his children since October 2016. While

in Cincinnati, Father asked HCJFS about completing a home study through the

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Interstate Compact on the Placement of Children (“ICPC”) to move the children to

Michigan and stayed in contact with an HCJFS caseworker named Stafford. For

unknown reasons, an ICPC was never completed. Stafford had left the agency.

{¶5} The children were adjudicated dependent on May 25, 2017, and

thereafter separated into different foster placements. All three children were

diagnosed with mental-health disorders. F.B. was diagnosed with PTSD and has

required multiple hospitalizations due to “outbursts.” She once expressed desires to

kill her foster mom and herself. S.B. was diagnosed with PTSD and has deficiencies

related to a traumatic brain injury that he suffered in the car accident. He has an IEP

for cognitive delays and behavioral issues. H.B. was diagnosed with PTSD and

enuresis. All three children are engaged in therapeutic services through HCJFS.

{¶6} On June 5, 2018, HCJFS moved to modify temporary custody to

permanent custody pursuant to R.C. 2151.413(A). Father first appeared in court on

October 24, 2018, for the hearing on HCJFS’s motion. At that time, the court

ordered visitation for Father, and also ordered him to complete services through the

agency, including a diagnostic assessment, to maintain consistent and positive

visitation, and to find stable income and housing.

{¶7} A trial on HCJFS’s motion for permanent custody was scheduled for

May 20, 2019, but was continued because Father requested new counsel. Father’s

counsel, who was initially appointed in September 2017, was permitted to withdraw.

The trial was rescheduled to August 2019. Father’s newly-appointed counsel

requested a continuance of the trial, and it was rescheduled to November 2019.

{¶8} At the start of trial on November 19, 2019, Father again requested new

counsel, citing communication problems with his current counsel. Father’s counsel

indicated that Father mailed him a copy of a lease for a new apartment but he did not

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receive it. Father’s counsel said that he and Father were “having problems

communicating,” and that he “may not be able to effectively represent him due to

[communication problems].” The magistrate denied Father’s request for new

counsel.

{¶9} A trial took place over two days, on November 19, 2019, and January

28, 2020. On February 7, 2020, the magistrate granted HCJFS’s motion for

permanent custody of F.B., S.B. and H.B. and denied Father’s motion for custody.

Father filed a one-paragraph objection to the magistrate’s decision, alleging

insufficient proof to support the grant of permanent custody to HCJFS. In lieu of

oral arguments on the objection, the trial court considered written arguments filed

by the parties, in addition to the transcripts and evidence made part of the record.

On August 5, 2020, the trial court adopted the findings of the magistrate and wrote

its own lengthy decision. The trial court denied Father’s objection and approved the

magistrate’s decision.

{¶10} Father now appeals, asserting two assignments of error.

Analysis

{¶11} In his first assignment of error, Father argues that the trial court erred

in denying his motion to discharge his second court-appointed attorney.

{¶12} Appellate review of the trial court’s decision as to the replacement of

counsel is normally for an abuse of discretion. See State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48 (2006). However, Father did not object to the

magistrate’s denial of his request for new counsel in accordance with the Ohio Rules

of Juvenile Procedure. “An objection to a magistrate’s decision shall be specific and

state with particularity all grounds for the objection.” Juv.R. 40(D)(3)(b)(ii).

Because Father failed to raise this issue in his objection, he has waived all but plain

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error. See In re Jones, 1st Dist. Hamilton Nos. C-090497, C-090498 and C-090499,

2010-Ohio-3994, ¶ 31-33; In re J.G.S., 1st Dist. Hamilton No. C-180611, 2019-Ohio-

802, ¶ 23. Plain error “is not favored and may be applied only in the extremely rare

case involving exceptional circumstances where error, to which no objection was

made at the trial court, seriously affects the basic fairness, integrity, or public

reputation of the judicial process, thereby challenging the legitimacy of the

underlying judicial process itself.” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-

7565, 103 N.E.3d 784, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d

1099 (1997).

{¶13} On the record below, Father cannot establish error, much less plain

error, in the trial court’s decision not to permit new counsel. “To discharge a court-

appointed attorney, the defendant must show a breakdown in the attorney-client

relationship of such magnitude as to jeopardize the defendant’s right to effective

assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988),

paragraph four of the syllabus. In this case, Father was represented by counsel for

the entirety of the permanent-custody trial, and counsel was actively involved in

representing his interests on cross-examination and direct examination. That is,

Father’s counsel appears to have been fully prepared. There was no evidence

presented below to demonstrate a breakdown in the attorney-client relationship such

that it jeopardized Father’s right to effective counsel. Moreover, Father does not

argue, nor is it evident, how different counsel might have produced a different

outcome. Accordingly, we overrule Father’s first assignment of error.

{¶14} In his second assignment of error, Father argues that HCJFS failed to

establish by clear and convincing evidence that it should be granted permanent

custody of Father’s children. Father contends that the trial court’s determination

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that he is not bonded with his children and that H.B. and S.B. had indicated a desire

not to be placed with him is not supported by the record.

{¶15} “Because parents have a paramount right to the custody of their

children, the juvenile court’s determination to grant permanent custody to HCJFS

must be supported by ‘clear and convincing’ evidence.” In re X.M.W., 1st Dist.

Hamilton No. C-190568, 2020-Ohio-449, ¶ 7, citing In re A.M.Z., 1st Dist. Hamilton

Nos. C-190292, C-190317 and C-190326, 2019-Ohio-3499, ¶ 5. Clear and convincing

evidence is sufficient evidence to “ ‘produce in the mind of the trier of fact a firm

belief or conviction as to the facts sought to be established.’ ” In re L.D., 1st Dist.

Hamilton No. C-190470, 2019-Ohio-4990, ¶ 4, quoting In re W.W., 1st Dist.

Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46.

{¶16} “Although the termination of the rights of a natural parent should be

an alternative of ‘last resort,’ such an extreme disposition is nevertheless expressly

sanctioned [under R.C. 2151.353] when it is necessary for the ‘welfare’ of the child.”

In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979), quoting In re

Fassinger, 42 Ohio St.2d 505, 330 N.E.2d 431 (1975). Pursuant to R.C.

2151.353(A)(2), when a child has been previously adjudicated dependent and

temporary custody has been granted to HCJFS, the agency may move for permanent

custody of the child under R.C. 2151.413(A) and 2151.414. The juvenile court will

then grant permanent custody to the agency if a two-prong test is satisfied. See R.C.

2151.414(B). Under R.C. 2151.414(B)(1), clear and convincing evidence must

demonstrate that (1) the grant of permanent custody is in the child’s best interest

and (2) one of the factors under R.C. 2151.414(B)(1)(a) through (e) is also met. See

R.C. 2151.414 (B)(1) and (D)(1); In re M., 1st Dist. Hamilton No. C-170008, 2017-

Ohio-1431, ¶ 17.

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First Prong—R.C. 2151.414(B)

{¶17} Under the first prong, the requisite R.C. 2151.414(B)(1)(a) through (e)

finding, Father properly concedes that R.C. 2151.414(B)(1)(d) is satisfied in this case.

R.C. 2151.414(B)(1)(d) involves a finding by the juvenile court that the “[t]he child

has been in the temporary custody of one or more public children services agencies *

* * for twelve or more months of a consecutive twenty-two month period[.]” For

purposes of calculating this time, this period runs from the earlier of the date that the

child was adjudicated dependent or 60 days from the date that the child was

removed from the home. R.C. 2151.413(D)(1). The earlier date for all three children

in this case was 60 days after the date they were removed from the home and placed

in the temporary custody of HCJFS. That date was April 1, 2017. Therefore, at the

time that HCJFS moved for permanent custody in June 2018, the children had been

in the temporary care of the agency for 14 months of the consecutive 22-month

period.

Second Prong—R.C. 2151.414(D)(1)

{¶18} Under the second prong, the trial court must determine whether

granting permanent custody to the agency is in the best interest of the child. See R.C.

2151.414(B)(1). Pursuant to R.C. 2151.414(D)(1), the court may find that permanent

custody is in the best interest of the child upon consideration of all relevant factors,

including: (a) the child’s relationships with the parents, siblings, foster caregivers,

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

child, as expressed directly by the child or through the child’s guardian ad litem, with

consideration granted for the child’s maturity; (c) the custodial history of the child,

including whether the child has been in the custody of a public child services agency

for 12 or more months in a consecutive 22-month period; (d) the child’s need for a

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legally secure permanent placement; and (e) whether any of the factors in R.C.

2151.414(E)(7) to (11) apply in relation to the parents and child.

{¶19} In conducting the best-interest analysis “[n]o single factor is given

greater weight or heightened significance.” In re P., 1st Dist. Hamilton Nos. C-

190309 and C-190310, 2019-Ohio-3637, ¶ 35, citing In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.

{¶20} The first factor, R.C. 2151.414(D)(1)(a), addresses the “interaction and

interrelationship of the child with the child’s parents, siblings, relatives, foster

caregivers and out-of-home providers, and any other person who may significantly

affect the child[.]” Father claims that the juvenile court did not fully appreciate the

bond that the children shared with him in its determination.

{¶21} Father testified that before Mother had passed away, the children

visited him up to three to four times a year, which included some school breaks and

weekends. However, the juvenile court’s determination that S.B. and H.B. “do not

have a strong emotional bond with father” is supported by the record. Prior to

Mother’s funeral in February 2017, Father had not seen his children since October

2016. After the funeral, Father did not have contact with the children for a 20-

month period. The court also recognized that S.B. and H.B. had displayed hesitation

in wanting to visit Father, which is supported by the guardian ad litem’s testimony,

as discussed below.

{¶22} The court also noted the accounts of Father’s visitation at the Family

Nurturing Center:

[Father] had to be redirected on multiple occasions. The redirection

was attempted to prevent new trauma to the children. Although the

children have been without a parent for years, [Father] informed the

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children that he had adopted another child. His play with S.B. became

conflictual and he held his phone in the child’s face threatening to have

the foster parents come and get him. The child reacted so poorly to

this threat that he became angered and removed himself from the visit.

[Father] became angered because the child, in his view, was

controlling the visit. [Father’s] basketball play with [H.B.] had to be

redirected due to the risk of physical injury. At the post visit

processing the visitation observer state the father smelled of alcohol,

had “glossy” eyes, and kept repeating himself multiple times.

{¶23} The court recognized that F.B. had telephonic communication with

Father and has expressed a desired to be placed with Father. However, the court also

noted that Father provided inconsistent accounts on how often the telephone

communications occurred, and Father had not consistently visited with F.B. since the

end of 2018. Thus, while Father might have some bond with his children, the record

contains countervailing evidence against Father’s interaction and interrelationship

with the children.

{¶24} The juvenile court also took into account the wishes of the children,

through the position of the children’s guardian ad litem (“GAL”), who supported a

grant of permanent custody to HCJFS. See R.C. 2151.414(D)(1)(b). The GAL

emphasized Father’s abandonment of his children and the effect that that had on

them, particularly S.B. and H.B. She explained that S.B. and H.B. displayed

indifference and did not want to participate in the visits, and said that “[d]uring

numerous visits, the children would appear standoffish, fearful of their safety, or

become visibly upset as a result of Father’s comments and behavior.” The GAL noted

that both children have a significant bond with their foster families, and also that

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they have made significant progress addressing medical and cognitive issues. For

example, she said that S.B. displayed more control over his emotions, while H.B. had

decreased instances of bed-wetting. With regard to F.B., the GAL noted that Father

testified that he had regular communication with her, but an agency caseworker

testified that he was not given the necessary passcode to speak with her while she

was residing at a treatment facility. F.B. indicated through her In re Williams

attorney that she desired placement with her father.

{¶25} Considering the custodial history of the children pursuant to R.C.

2151.414(D)(1)(c), the juvenile court found that the children were in the temporary

custody of HCJFS for over 12 months of a consecutive 22-month period, which as

discussed above, was supported by the record. The children had spent no

appreciable time living with their father in the last several years, during the time he

resided in Michigan.

{¶26} R.C. 2151.414(D)(1)(d) concerns “[t]he 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 [HCJFS].” The juvenile court concluded that Father

could not adequately care for the children, requiring a legally secure placement with

HCJFS, primarily due to the children’s need for ongoing mental-and-behavioral

health services. The record supports this conclusion. For example, through the case

plan Father was ordered to engage in individual therapy and he failed to do so

despite admittedly struggling with mental-health issues since he was a young child.

Additionally, up until the trial, Father was living in an apartment in which he could

not have his children living with him.

{¶27} R.C. 2151.414(D)(1)(e) requires the court to consider whether any

factor listed in R.C. 2151.414(E)(7) through (11) applies. The court found that (E)(10)

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applies because Father had abandoned his children “prior to his involvement in the

case in October 2018.” See R.C. 2151.414(E)(10) (“The parent has abandoned the

child.”). Under R.C. 2151.011(C), a child must be “presumed abandoned when the

parents of the child have failed to visit or maintain contact with the child for more

than ninety days, regardless of whether the parents resume contact with the child

after that period of ninety days.” As discussed above, the record of Father’s lack of

contact with his children supports the trial court’s finding of abandonment.

{¶28} Based on the foregoing, the record reflects that the juvenile court

engaged in proper consideration of the relevant statutory factors, finding by clear

and convincing evidence that the grant of permanent custody was in the children’s

best interest. Father’s second assignment of error is overruled.

Conclusion

{¶29} Accordingly, we affirm the judgment of the juvenile court.

Judgment affirmed.

M YERS and W INKLER , JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.