In re F.F.

2023 Ohio 4166

• Court: Ohio Court of Appeals
• Decided: November 17, 2023
• Docket: E-23-027, E-23-028
• Status: Published

Opinion

[Cite as In re F.F., 2023-Ohio-4166.]

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

In re F.F., P.F. Court of Appeals Nos. E-23-027 E-23-028

Trial Court Nos. 2021JN0025 2021JA0004

DECISION AND JUDGMENT

Decided: November 17, 2023

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

Lorie K. Brobst, for appellant.

OSOWIK, J.

{¶ 1} This is a consolidated appeal from a judgment of the Erie County Court of

Common Pleas, Juvenile Division, which terminated the parental rights of appellant,

father, and granted custody of the above-captioned minor children, F.F. and P.F., to appellee, the Erie County Department of Job and Family Services (ECDJFS). For the

reasons set forth below, this court hereby affirms the judgment of the trial court.

{¶ 2} ECDJFS initially became involved in this matter in 2019, three years prior to

filing the July 25, 2022 motion for permanent custody of the children from which this

appeal arises. On May 3, 2021, ECDJFS reunified the children with appellant and their

mother, following temporary custody and the provision of support services from June,

2019 through May 3, 2021.

{¶ 3} On May 4, 2021, the day after reunification, it was reported to ECDJFS by

law enforcement that appellant and the mother had both relapsed into drug abuse, the

predominant issue underlying this case. Appellant was arrested and charged with child

endangerment, domestic violence, a community control violation, and tested positive for

fentanyl. Appellant had consumed fentanyl and alcohol, and threw, or alternatively,

dropped, P.F., who was approximately six-months old at the time. The mother, who is

not a party to this appeal, also tested positive for drugs. She refused to cooperate with

law enforcement or ECDJFS following the above-described incident.

{¶ 4} On May 14, 2021, following the investigation into the May 4, 2021 incident,

ECDJFS filed a complaint in neglect and dependency regarding the minor child F.F., and

a complaint in abuse, neglect, and dependency regarding the minor child, P.F. On

June 18, 2021, the trial court adjudicated F.F. to be neglected and dependent, and

adjudicated P.F. to be abused, neglected, and dependent. On July 21, 2021, ECDJFS

2. approved a case plan outlining the support services being implemented. The case plan

was incorporated into the dispositional orders. On May 24, 2022, the trial court extended

the jurisdiction of ECDJFS for an additional six months.

{¶ 5} On July 25, 2022, ECDJFS filed a motion requesting permanent custody of

the children. The record reflects that ECDJFS was involved in the provision of services

since F.F. was approximately eight months of age, and was involved in the provision of

services for the entirety of P.F.’s life. On November 2, 2022, the trial court extended the

jurisdiction of ECDJFS for an additional six months.

{¶ 6} On February 9, 2023, the trial court began a two-day permanent custody

hearing. Appellee first offered the testimony of Lauren Miller, the ECDJFS caseworker

assigned to the case. Miller testified that her initial involvement began in June 2019,

following the report of an incident in which the mother sold drugs from the family

residence in the presence of F.F., and additional incidents in which F.F. was left alone at

the family residence, while the parents were at other locations engaged in drug-related

activities. Miller next testified that P.F. was born during the pendency of F.F.’s case, and

P.F. was also placed into ECDJFS protective custody and supervision.

{¶ 7} Miller testified that on May 4, 2021, the day after reunification, law

enforcement reported to ECDJFS that a serious, new incident had taken place. Both

parents relapsed, consumed fentanyl, became embattled in domestic violence, and in the

course of these events, appellant either threw or dropped P.F. on the floor. Appellant was

3. subsequently charged with child endangerment, domestic violence, and a community

control violation. Both parents tested positive for drug consumption.

{¶ 8} Miller’s testimony detailed appellant’s unabated pattern of participating in

substance abuse services, including placement in multiple residential drug treatment

facilities, but relapsing after short periods of sobriety. Miller testified that following the

commission of a probation violation in July, 2022, appellant was placed into another

residential drug and alcohol treatment facility. Appellant tested positive for fentanyl,

cocaine, and methamphetamines. Miller testified that in January 2023, shortly before the

permanent custody motion underlying this appeal was filed, appellant relapsed again,

testing positive for fentanyl and cocaine. Miller testified that despite the provision of

numerous drug and alcohol related services over a time period spanning nearly four

years, appellant had not secured sustained sobriety.

{¶ 9} Miller further testified that appellant failed to comply with case plan services

regarding marriage counseling sessions, which were required due to appellant’s stated

intent of reuniting with the mother, with whom appellant shares a history of mutual drug

and alcohol abuse and domestic violence.

{¶ 10} Miller next testified that the children have been placed together, since

May 14, 2021, in the same foster home. The placement has been successful, with the

children thriving, and the foster family demonstrating the ability to meeting the special

needs of the children, including F.F.’s autism, and expressing a desire to adopt both of

4. the children. Miller concluded that although appellant loves his children, he has not

demonstrated the ability to provide a safe, permanent home environment for them. As

such, Miller testified that it is in the best interest of the children for permanent custody to

be granted to ECDJFS.

{¶ 11} Nicholas Smith, the court appointed guardian ad litem, next testified.

Smith emphasized his concerns about the recurrence of appellant’s drug abuse relapses,

and with appellant’s engagement in criminal activity subsequent to relapses, and how that

impacts appellant’s ability to safely parent the children. Smith noted that appellant has

been on community control on an ongoing basis since September 2019, and that his

felony convictions include drug offenses, burglary, domestic violence, and community

control violations. Smith testified that although it ideally would be his preference to

furnish appellant additional time to work on his issues, he concurred that it is in the best

interest of the children for permanent custody to be granted to ECDJFS.

{¶ 12} Patricia James, the CASA coordinator, next testified that although appellant

loves his children, based upon the ramifications of appellant’s unresolved drug abuse

issues, she likewise concurred that it is in the best interest of the children for permanent

custody to be granted to ECDJFS.

{¶ 13} Appellant next testified to the trial court. Appellant testified that he

became a heroin addict when he was in his 20s. Appellant testified that he first entered a

residential drug treatment facility in 2016, seven years prior to the instant case.

5. Appellant enumerated the most recent residential drug treatment facilities in which he

had been placed by ECDJFS, including Surest Path in Fremont, Road to Hope in

Sandusky, Road to Hope in Elyria, and OneEighty in Wooster. Appellant conceded that

he has been unable to retain sobriety, and that he continues to relapse when he

experiences stress. Appellant further testified that although he recognizes that his

relationship with the mother, to whom he is still married, is toxic and triggering, he

nevertheless still loves her and does not rule out reuniting with her. Appellant conceded

that he had relapsed and consumed drugs on multiple occasions, particularly during the

timeframe of December, 2022, through January, 2023. Appellant attributed his recurring

relapses to experiencing stress. Appellant acknowledged that he has never served as a

caregiver for his children for more than a two-day period of time. Appellant

acknowledged F.F.’s autism diagnosis, but expressed uncertainty about the validity of the

diagnosis.

{¶ 14} Lee Jacobs, appellant’s drug court coordinator, next testified that although

appellant had been compliant with participating in drug court services, appellant

accumulated five positive drug test results during the period of his drug court oversight.

Christina Kaman, appellant’s probation officer, likewise testified as to appellant’s

unbroken pattern of drug abuse relapsing.

{¶ 15} Dawn Peters, appellant’s substance abuse counselor, next testified that

appellant was diagnosed to have severe opioid use disorder, mild cannabis use disorder,

6. and chronic viral hepatitis. Peters testified that appellant attributed his December, 2022

drug relapse to having “a feeling” that the trial court would not find in his favor on the

then-pending motion for permanent custody. Appellant tested positive for cocaine and

fentanyl. Peters testified that appellant relapsed again in January, 2023, testing positive

for cocaine, fentanyl, and methamphetamines.

{¶ 16} Appellant’s sister next testified that while she would support appellant if

custody of the children was returned to him, she conceded that she had declined to

complete paperwork provided to her regarding same by ECDJFS because she, “already

has four children of her own.”

{¶ 17} On April 24, 2023, the trial court found, pursuant to R.C. 2151.414(D)(1),

that it was in the best interest of the children to grant permanent custody of them to

ECDJFS. In support, the trial court noted that the children are, “[I]ntegrated into [their]

foster home and appear comfortable and happy there. Despite her autism diagnosis,

[F.F.] has made significant developmental improvements while residing with foster

parents.” R.C. 2151.414(D)(1)(a). The trial court next noted that both the G.A.L. report

and the CASA report consistently concluded that granting permanent custody of the

children to ECDJFS was in their best interest. R.C. 2151.414(D)(1)(b). The trial court

further noted that both of the children had been in the custody of ECDJFS for 12 or more

months of a consecutive 22-month period. In conjunction, the trial court noted that the

children had been in the custody of ECDJFS for the bulk of their respective lifetimes.

7. R.C. 2151.414(D)(1)(c). The trial court also noted that appellant’s chronic drug abuse

issues, the lack of an available relative placement, and the fact that the May 3, 2021

reunification lasted a day, all reflect the need for a legally secure placement for the

children. R.C. 2151.414(D)(1)(d).

{¶ 18} The trial court highlighted that, despite four years of ongoing services

being provided through ECDJFS, appellant’s most recent drug relapse had occurred after

appellant elected to reach out to one of his former drug dealers, ostensibly for assistance

in finding a car to purchase. Although appellant did not acquire a car, appellant did

secure drugs and relapse.

{¶ 19} Lastly, the trial court delineated the many services furnished to appellant

by ECDJFS, in an attempt to achieve a second reunification, including substitute care

services, counseling services, drug and alcohol assessments and residential treatment

services, visitation services, autism services, and case management services. Given these

facts and circumstances, the trial court found that, “reasonable efforts were made to make

it possible for the [children] to return home.”

{¶ 20} Accordingly, the trial court determined it to be in the best interest of the

children for permanent custody of them to be granted to ECDJFS, holding, “[P]ermanent

commitment * * * [to ECDJFS] is in the best interest of the child[ren].” Mother did not

appeal. Appellant timely appealed.

8. {¶ 21} In the sole assignment of error, appellant maintains that the trial court erred

in finding it in the best interest of the children to grant permanent custody to ECDJFS

and, in conjunction, in finding that ECDJFS had undertaken reasonable efforts towards

reunification with appellant. Appellant argues that the trial court’s granting of the motion

for permanent custody to ECDJFS was against the manifest weight of the evidence.

{¶ 22} R.C. 2151.414(B) establishes that in order for a trial court to grant a motion

for permanent custody it must be shown by clear and convincing evidence that,

(1) one or more of the conditions in R.C. 2151.414(B)(1)(a) through (e)

applies and (2) a grant of permanent custody is in the child’s best interest.”

As applied to the instant case, appellant’s appeal challenges the second,

best-interest prong of the above-quoted evidentiary threshold. As applied

to permanent custody cases, the Ohio Supreme Court has defined clear and

convincing evidence as evidence sufficient for the trier of fact to form a

firm conviction or belief that the essential statutory elements for a

termination of parental rights have been established. Cross v. Ledford, 161

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

{¶ 23} The corresponding statute defining best interest of the child considerations,

R.C. 2151.414(D)(1), establishes that,

In determining the best interest of a child * * * the court shall consider all

relevant factors, including, but not limited to, the following: (a) The

9. interaction and interrelationship of the child with the child’s parents,

siblings, relatives, foster caregivers and out-of-home providers, and any

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

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

litem, with due regard for the maturity of the child; (c) The custodial

history of the child; (d) The child’s need for a legally secure placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency; (e) Whether any of the factors in

divisions (E)(7) to (11) of this section apply in relation to the parents and

child.

{¶ 24} In conjunction with the above-quoted statutory predicate best interest of the

child analysis, as held by this court in In re T.J., 180 N.E.3d 706, 2021-Ohio-4085, ¶ 40

(6th Dist.),

We review a trial court’s determination any permanent custody case under a

manifest-weight- of-the-evidence standard. In re P.W., 6th Dist. Lucas No.

L-12-1060, 2012-Ohio-3556, 2012 WL 3199395, ¶ 20. In doing so, we

must weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether the trier of fact clearly

lost its way in resolving evidentiary conflicts so as to create such a manifest

miscarriage of justice that the decision must be reversed. State v.

10. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). But, while we

review the evidence and consider the witness’ credibility, we must be

mindful that the juvenile court, as the trier of fact, is in the best position to

weigh the evidence and evaluate testimony. In re P.W. at ¶ 20. Its

discretion in determining whether an order of permanent custody is in the

best interest of the child ‘should be accorded the utmost respect, given the

nature of the proceeding and the impact the court’s determination will have

on the lives of the parties concerned.’ (Internal quotation marks and

citations omitted.) In re C.P., 10th Dist. Franklin No. 08AP-1128, 2009-

Ohio-2760, 2009 WL 1653556, ¶ 10.

{¶ 25} In support of this appeal, appellant argues that the trial court’s best interest

of the children finding was not shown by clear and convincing evidence. We do not

concur.

{¶ 26} Appellant asserts, “It is simply not in the children’s best interest to be

placed in the permanent custody of ECDJFS.” Appellant simultaneously concedes that,

“The children were removed * * * due to serious [drug] addiction and placed in foster

care.”

{¶ 27} The record of evidence reflects that ECDJFS initially became involved in

June 2019, upon drug abuse and trafficking issues impacting F.F. first being reported.

ECDJFS provided services to the family from June 7, 2019 through December 20, 2020.

11. During that timeframe, P.F. was born and incorporated into the orders and services. On

May 3, 2021, following this 18-month period of ECDJFS involvement and services, the

children were reunified with the parents and ECDJFS closed the case.

{¶ 28} Unfortunately, on May 4, 2021, the day after reunification, it was reported

to ECDJFS that both parents had relapsed and were consuming drugs again. Appellant

had dropped or thrown P.F. during an altercation with the mother and was arrested for

child endangerment, domestic violence, and probation violations. Appellant tested

positive for fentanyl the day after reunification.

{¶ 29} The record reflects that case plan services for appellant were implemented

encompassing the range of unresolved issues, including drug and alcohol services,

domestic violence services, and housing services. The record reflects that despite the

resumption of intensive services for appellant, appellant’s drug abuse relapses continued

to regularly recur. In July 2022, following a drug-related probation violation, appellant

tested positive for cocaine, methamphetamines, and fentanyl. Testimony demonstrates

that ECDJFS continued to work with appellant, placing appellant in at least four

additional residential drug treatment facilities, without success. It is undisputed that

appellant relapsed again in January, 2023, shortly before the subject motion for

permanent custody action was filed by ECDJFS. According to his own testimony,

appellant would not foreclose the possibility of reuniting with the mother, despite his

12. acknowledgment that their relationship has consistently been accompanied by drug abuse

and domestic violence.

{¶ 30} Unrefuted evidence was presented to the trial court demonstrating that the

minor children are thriving in their foster home, are bonded to the foster parents, have

successfully been in this foster home for the majority of their lives, are receiving needed

specialized care from the foster parents, and the foster parents would like to adopt both of

the children. The record establishes R.C. 2151.414(D)(1)(a) evidence favoring the best

interest of the child determination.

{¶ 31} The testimony of the ECDJFS caseworker, the G.A.L., and the CASA

coordinator, all consistently establish that, based upon their involvement in this case, it is

in the best interest of the children for permanent custody to be granted to ECDJFS. The

record therefore also establishes R.C. 2151.414(D)(1)(b) evidence favoring the best

{¶ 32} The record also establishes that ECDJFS first took temporary custody of

F.F. on June 7, 2019, when F.F. was approximately eight-months old and that P.F. was

subsequently born and taken into temporary custody. Other than the May 3, 2021 one-

day reunification, the children have been in ECDJFS custody and foster care placement

for nearly the entirety of their lives. The record therefore reflects R.C. 2151.414(D)(1)(c)

evidence favoring the best interest of the child determination.

13. {¶ 33} As previously stated, the record of this case reflects that appellant’s drug

abuse and addiction, marked by recurring relapses despite 4 years of ECDJFS services

and placement in numerous residential drug treatment facilities, persists. Efforts to find a

viable alternative relative placement were unsuccessful. Appellant’s sister declined to fill

out agency paperwork, stating that she has, “four children of my own.” The record

therefore reflects R.C. 2151.414(D)(1)(d) evidence favoring the best interest of the child

determination.

{¶ 34} Lastly, the trial court found that (E)(7) to (11) factors were not applicable

and that ECDJFS did undertake reasonable efforts towards reunification, including, but

not limited to, drug and alcohol assessment, services, and residential treatment, domestic

violence related services, visitation related services, specialized autism treatment related

services, substitute care services, and case management services, including efforts to

secure an alternative relative placement.

{¶ 35} We have carefully reviewed and considered this matter. We find that the

trial court’s R.C. 2151.414 best interest determination, and the reasonable efforts

determination, were supported by clear and convincing evidence. Upon weighing the

evidence, reasonable inferences, and considering witness’ credibility, we find that

appellant has not demonstrated that the trial court clearly lost its way in resolving

evidentiary conflicts so as to cause a manifest miscarriage of justice. Accordingly, we

14. find that the trial court’s decision was not against the manifest weight of the evidence.

Appellant’s assignment of error is found not well-taken.

{¶ 36} On consideration whereof, the judgment of the Erie County Court of

Common Pleas, Juvenile Division, is hereby affirmed. Pursuant to App.R. 24, costs of

this appeal are assessed to appellant.

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.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, 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/.

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