In re J.A.

2022 Ohio 1132

• Court: Ohio Court of Appeals
• Decided: April 4, 2022
• Docket: 5-21-20
• Status: Published

Opinion

[Cite as In re J.A., 2022-Ohio-1132.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

IN RE: CASE NO. 5-21-20 J.A.,

DEPENDENT CHILD.

[BRANDY F. - APPELLANT] OPINION [JAMES A. - APPELLANT]

Appeal from Hancock County Common Pleas Court Juvenile Division Trial Court No. 20193033

Judgment Affirmed

Date of Decision: April 4, 2022

APPEARANCES:

Laurel A. Kendall for Appellant James A.

Linda Gabriele for Appellant Brandy F.

Justin J. Kahle for Appellee Case No. 5-21-20

WILLAMOWSKI, J.

{¶1} Appellants Brandy F. (“Brandy”) and James A. (“James”) bring this

appeal from the judgment of the Court of Common Pleas of Hancock County,

Juvenile Division, granting the motion of the Hancock County Job and Family

Services, Children Protective Services Unit (“the Agency”) for permanent custody

of the minor child, J.A. On appeal, appellants argue that the judgment of the trial

court was not supported by sufficient evidence and was against the manifest weight

of the evidence. For the reasons set forth below, the judgment is affirmed.

{¶2} Brandy and James are the parents of J.A., who was born in 2017. Doc.

1. On April 1, 2019, Brandy and J.A. were taking a Greyhound bus to Michigan

when the driver stopped the bus and notified the police regarding a domestic

violence issue. Doc. 1. Brandy reportedly struck J.A. in the face multiple times

after he threw her cellphone causing it to break. Doc. 1. Upon the arrival at the rest

stop where the bus had stopped, Sergeant Justin Powell observed the child with

blood on his nose, mouth, and shirt. Doc. 1. Brandy was arrested for domestic

violence and J.A. was taken into the emergency custody of the Agency as there was

no one in Ohio with whom J.A. could be placed. Doc. 1. The Agency filed a

complaint alleging that J.A. was a neglected, abused, and dependent child. Doc. 1.

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Notice of the hearing for James was provided by publication in the Findlay Courier

as his address was not known the Agency.1 Doc. 5.

{¶3} On April 9, 2019, the trial court granted emergency temporary custody

of J.A. to the Agency. Doc. 12. Neither Brandy nor James were at the hearing.

Doc. 12. The trial court also appointed Erika Long (“Long”) as the Guardian ad

Litem for J.A. on that same day. Doc. 11. On May 9, 2019, the Agency filed a case

plan. Doc. 16. Although the case plan set forth goals for J.A. and visitation, it had

no specific goals for Brandy, other than she comply with the case plan. Doc. 16.

No mention of James was in the case plan. Doc. 16. On May 23, 2019, the trial

court held a hearing for the purpose of adjudication. Doc. 19. Neither Brandy nor

James were present, though legal counsel for both were present. Doc. 19. Following

the hearing, the trial court found J.A. to be an abused, neglected, and dependent

child. Doc. 19.

{¶4} On June 3, 2019, Long filed her report and recommendation, which

noted that she had been unable to reach Brandy and that she had heard conflicting

stories about what Brandy wanted to do. Doc. 17. Long stated that she had heard

Brandy wanted to come back to Ohio to reunify with J.A. and also that Brandy did

not wish to reunify with J.A. Doc. 17 at 4. No discussion regarding James was in

1 Notice was not received through publication as James lived out of state at the time, which was known by the Agency. James learned of J.A. being in the custody of the Agency after he contacted Brandy’s mother at the beginning of May 2019 to find out why they had not contacted him after they moved to Michigan. James then contacted the Agency to let the caseworker know that he wanted J.A. to be released to his care. Exhibit A.

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the report. Doc. 17. A hearing for the purpose of disposition was held on June 6,

2019. Doc. 20. Again, neither Brandy nor James were present. Doc. 20. The trial

court awarded temporary custody of J.A. to the Agency. Doc. 20.

{¶5} On September 18, 2019, a review hearing was held. Doc. 23. Prior to

the hearing, Long filed her report and recommendations. Doc. 24. Long noted that

J.A. was in his fourth foster home since entering the Agency’s custody on April 1,

2019. Doc. 24 at 1-2. Long noted that the Agency was requesting a home study on

J.A.’s maternal grandfather, but she indicated she had not had any contact with the

man. Doc. 24 at 2. She also noted that Brandy had not come to any visits since the

removal and that James was “reportedly living down south and has had no contact

with [J.A.] during the case.” Doc. 24 at 2. Long did not indicate that she had

attempted to establish contact with either Brandy or James. Long recommended

that any visits Brandy had with J.A. be supervised and that he remain in the custody

of the Agency. Doc. 24 at 2-3. The Agency submitted a case plan which indicated

that Brandy had not been able to engage in services because she lived out of state.

Doc. 25. The review made no mention of James. Neither Brandy nor James were

present for the hearing. Doc. 26. The trial court ordered that the custody remain

with the Agency. Doc. 26.

{¶6} On February 19, 2020, the Agency filed a motion for permanent

custody. Doc. 35. The motion alleged that J.A. could not be placed with either of

his parents because the parents 1) failed to remedy the conditions causing the child

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to be placed outside the home, 2) chemical dependency, and 3) lack of commitment.

Doc. 35. The Agency filed a review of the case plan showing that Brandy had made

insufficient progress on the case plan as she had not engaged in services. Doc. 37.

Notably, no recommendations were made as to James as he was not listed on the

case plan other than as the biological father on the SAR participants page. Doc. 37.

The review did indicate that neither Brandy nor James had visited with J.A. since

he entered the custody of the Agency.2 Doc. 37. The review indicated that James

was in compliance with the court orders at that time even though it also stated that

he was not on the case plan for services. Doc. 37.

{¶7} On March 10, 2020, Long filed her report and recommendations for the

review hearing. Doc. 44. Long recommended that J.A. remain in the temporary

custody of the Agency. Doc. 44. The trial court then set the hearing for the motion

for permanent custody for August 24-25, 2020. Doc 50. On June 2, 2020, a motion

for joinder and placement of J.A. was filed by Brandy’s Cousin, Jovita (“Jovita”)

and, in the alternative, J.A.’s paternal grandmother, Vanessa (“Vanessa”). Doc. 61.

On June 19, 2020, the Agency filed a motion for approval of an amended case plan.

Doc. 65. J.A. was again moved to a new foster placement. Doc. 65. The new plan

did not add James to the plan and did not list him as an approved visitor. Doc. 65.

2 A review of the record shows that James was not listed as one who could visit J.A. in the original case plan. Doc. 16. James was not added to the case plan as a participant before the February 18, 2020 review. Doc. 37. That review indicated several times that James had not visited with J.A., however he still was not added to the case plan as one who could visit with J.A.

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Unlike on the reviews, James was not listed as a participant on this plan. Doc. 65.

The Agency filed a motion for paternity testing on June 19, 2020. Doc. 66. The

trial court granted the motion for a paternity test on June 25, 2020. Doc. 67. On

August 24, 2020, the Agency filed a motion to have James designated as the

biological father of J.A. Doc. 82.

{¶8} On July 13, 2020, James filed a motion for placement of J.A. with

Vanessa and requested that the Agency initiate a request for a home study in North

Carolina where Vanessa resides. Doc. 70. Due to this motion being filed, the

Agency requested a continuance on the permanent custody hearing. Doc. 78. A

second continuance was requested by the Agency to allow time for the home study

from North Carolina to be completed. Doc. 92. This motion was denied by the trial

court. Doc. 93. Based upon this denial, the Agency filed a motion to withdraw its

motion for permanent custody and to instead have a six-month extension of

temporary custody. Doc. 95. The trial court granted the motion for an extension

and dismissed the motion for permanent custody. Doc. 96.

{¶9} On January 27, 2021, the Agency filed a motion for approval of an

amended case plan. Doc. 103. The new case plan included James and required him

to “cooperate with all requirements of ICPC and all services as outlined in this

concern. He will sign all releases of information and stay in direct communication

via email or phone with the [Agency].” Doc. 103. This plan was developed with

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the approval of James and signed by him. Doc. 103. Brandy did not agree to the

plan because they were unable to locate her. Doc. 103.

{¶10} Four days later, on February 1, 2021, the Agency filed a second motion

for permanent custody. Doc. 106. James filed a motion for custody on March 15,

2021. Doc. 135. A hearing on both motions was held on May 10-11, 2021. Doc.

170-71. During the hearing, the following evidence was presented.

{¶11} Morgan Lemons (“Lemons”) testified that she was employed as a case

manager for Harmony House and she supervised the visitation facility. Tr. 11. As

part of her job, Lemons indicated that she writes the monthly progress reports,

though she does not monitor the visits. Tr. 12-13. Lemons testified that she received

the referral for both Brandy and James from the Agency on November 30, 2020.

Tr. 18. James contacted her on December 7, 2020 and completed his intake on

December 14, 2020. Tr. 18. Brandy made contact on December 17, 2020, but did

not complete her intake until February 22, 2021. Tr. 18. Lemons indicated that she

learned of a problem in one of the March 2021 visits and reviewed the video. Tr.

15. In the visit, J.A. appeared uncomfortable with Brandy, but hugged James. Tr.

15. When they would play, J.A. would back up towards James and away from

Brandy. Tr. 16. When Brandy picked J.A. up, and spun him around, J.A. punched

Brandy in the face. Tr. 16. Brandy then put J.A. down and laid on the ground. Tr.

16. J.A. then started to strike Brandy’s back with his hands and feet. Tr. 16. James

told J.A. that they had to go and not to harm Brandy. Tr. 16. Although James did

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not physically intervene with J.A.’s assault on Brandy, he did attempt to redirect

J.A. and took away the bigger toys from J.A. so that he could not throw them at

Brandy. Tr. 21, 26. However, at the end of the visit in April 2021, J.A. hugged

both Brandy and James after a successful visit where they all played and talked. Tr.

20. Additionally, Lemons testified that she saw no issues with James’ parenting

skills. Tr. 26.

{¶12} Nicole Bash (“Bash”) testified that she is the foster mother of J.A. Tr.

28. J.A. was moved into their home on June 10, 2020. Ex. 8. Bash indicated that

J.A. calls her mom and her husband dad and that they are all very bonded to each

other. When J.A. arrived at the home, he had behavioral issues and threw tantrums.3

Tr. 31. Bash testified that J.A. had no strong behavioral issues until he started

visiting with his paternal grandmother. Tr. 32. Then J.A. would become concerned

he would have to leave the Bash family and started screaming. Tr. 33. Bash

eventually told the paternal grandmother to stop contacting J.A. because he was

uncomfortable. Tr. 33. According to Bash, J.A. does not like change and has told

Bash he wants to stay with them forever. Tr. 34-36. J.A. has been showing anxiety

since he started visits with his “other mommy and daddy”. Tr. 37. J.A. has started

seeing a counselor to deal with his anger issues, but they are not addressing his

3 J.A. would have been three at that time and had been with multiple foster placements in the year between entering the Agency’s custody and being placed with the Bash family, including one which was supposed to be an adoptive placement as shown by the first motion for permanent custody and affidavit filed by the then foster parents.

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anxiety. Tr. 38-39. Bash indicated that although James has visits, including

regularly scheduled zoom visits, J.A. still asks if he will live with the Bash family

even though his daddy has a different house. Tr. 40. However, the visits with James

go well and J.A. seems to like them. Tr. 42-43. Bash testified that she and her

husband would like to adopt J.A. and would be willing to continue contact with

family members as long as it was healthy for J.A. Tr. 45.

{¶13} On cross-examination Bash testified that J.A. expresses his anxiety by

biting his nails and fingers, though never to the point of injury. Tr. 47. Bash also

testified that when J.A. was placed with them, they were told by the Agency it was

a permanent placement as no family members wanted J.A. Tr. 51. As a result, Bash

told him he was staying with them forever. Tr. 52. When J.A. gets upset during a

zoom call with James, James tries to calm him down and J.A. is not as anxious after

those visits. Tr. 56.

{¶14} Carmen Loth (“Loth”) testified that she is the ongoing supervisor for

the Agency. Tr. 62. The Agency became involved with this matter when Brandy

was arrested for domestic violence after she struck J.A. multiple times in the face

while on a bus. Tr. 64. Loth identified Ex. 7 as case plan 1. Tr.68. In the first case

plan, Brandy was listed as one to whom services would be provided, but was not a

participant because the Agency was unable to locate her. Tr. 69. James was not on

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the case plan.4 Ex. 7. The original caseworker5 made monthly phone calls to

Brandy, but not James. Tr. 76. Until 2021, there were no visits from Brandy or

James. Tr. 77. When Loth spoke with James in 2020, James indicated he did not

know if he could see J.A. because it would be too hard on “him” emotionally, which

Loth took to mean too hard on James. Tr. 78. Loth testified that she offered James

bus tickets or gas cards to come visit since he lived in North Carolina. Tr. 78. James

did not seek to establish paternity until 2020, though the Agency wanted to establish

it earlier, but did not know were to find James. Tr. 79-80. In July 2020, paternity

was established and James indicated that he wanted custody of J.A. Tr. 80. The

Agency ultimately added James to the case plan in December 18, 2020, when plan

1.02 was signed and later filed with the trial court. Ex. 9.

{¶15} On cross-examination Loth testified that Brandy did come to two

meetings, but did not visit with J.A. Tr. 83. At one of the visits, Brandy indicated

she wanted to see J.A., but due to COVID restrictions, Loth was unable to arrange

the visit. Tr. 87. Although James’ name was not on J.A.’s birth certificate, both

Brandy and James said he was the father. Tr. 85. Loth admitted that the Agency

chose not to add James to the case plan after paternity was established until James

specifically asked for services so that he could obtain custody of J.A. Tr. 88. Loth

also admitted that the first caseworker received an email from James in May of

4 As James was not on the case plan, he was also not authorized to have visits with J.A. 5 The current caseworker was the fourth one assigned to the case in the time J.A. was in custody.

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2019, before the first case plan was developed, acknowledging paternity, asking

how to establish paternity, and requesting custody of J.A. Tr. 89-90. According to

Loth, the Agency did not contact James about adding him to the case plan because

they were focusing on Brandy. Tr. 90. Loth stated that she did not know about the

emails or the contacts with James until counsel showed them to her because the

contact log did not contain any information about James, only Brandy. Tr. 91. Loth

relied upon child support to arrange the paternity test, but did not know what, if

anything, was done by that agency. Tr. 91. The paternity test was completed when

the third caseworker for the Agency arranged it. Tr. 92. Loth testified that James

was in compliance with the case plan and that the ICPC review recommended

placement with James. Tr. 92-93. James had also completed the required global

assessment inventory of needs to identify any substance abuse and mental health

issues as required by the case plan. Tr. 96. No concerns were noted for James,

though he did have one positive test for THC at the beginning, though the

subsequent ones were all negative. Tr. 97.

{¶16} On redirect, Loth testified that she did not know why there was a delay

in adding James to the case plan. Tr. 94. When asked why the Agency was not

moving forward with placing J.A. with James, Loth said it was because the Agency

had already filed for permanent custody, J.A. had been in foster care for an extensive

period of time, and neither parent had visited him for a good portion of that time

despite knowing where he was. Tr. 94.

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{¶17} Kelly Miller (“Miller”) testified that she was the ongoing caseworker

for J.A. since the end of October 2020. Tr. 98. When Miller started neither Brandy

nor James were receiving any case plan services and neither plan had services for

either parent listed until December 17, 2020. Tr. 99-100. Miller’s first contact with

James was in November 3, 2020, and with Brandy in December 2020. Tr. 100.

James called her to find out J.A.’s current clothing size and what toys he wanted so

that he could purchase him some Christmas gifts. Tr. 100. James told Kelly that he

had limited contact with J.A. because he was afraid of triggering J.A.’s separation

anxiety. Tr. 102. James requested that he be permitted to visit with J.A. in late

November of 2020. Tr. 102. Miller indicated to James that it would be unfair to

J.A. to start up visits at that time, but eventually, she referred James and Brandy to

Harmony House for visits. Tr. 103. Case plan 1.02 provided services for James,

but not for Brandy. Tr. 106. James was required to complete the ICPC home

review, complete the GAIN assessment, have a BCI & FBI background check,

provide safe & stable housing, and have a safe plan for daycare if he got custody.

Tr. 107. Miller testified that James had completed the GAIN assessment and the

home review. Tr. 107. She did not know if had completed the criminal background

check. Tr. 109. The home review indicated that the home was appropriate for the

child to reside, that he would have his own room, and that there was adequate

income to provide for J.A. Ex. G. It indicated that a relative with whom James and

J.A. would be living is retired and would be providing care for J.A. while James

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worked and would be there to meet J.A. after school once he started. Ex. G. The

review showed that criminal background checks were completed on all members of

the household. Ex. G. The background check on James indicated that he had no

criminal convictions outside of traffic violations over a decade previously. Ex. G.

{¶18} Miller testified that James had a possible nine in person visits. Tr. 107.

Of those he came to three, cancelled five, and the foster parents cancelled one,

though the cancelled ones did occur via zoom. Tr. 107. Miller said that although

the home study recommended placement with James, she could not because of the

lack of visitation. Tr. 109. In her opinion, neither James nor Brandy had made

significant progress with the case plan requirements. Tr. 110. As to Brandy, Miller

testified that she had only attended two of the possible visits. Tr. 110. Miller

indicated that the Agency did not consider unsupervised visitation with either parent

because of the lack of opportunities to observe the parents during the visits. Tr.

111-12. Miller indicated that James had requested to visit J.A. on his birthday and

was permitted to have such a visit at a park supervised by the foster parents. Tr.

112. James wanted to bring Brandy and both grandmothers, but that request was

denied. Tr. 112. James then cancelled the visit, stating that he felt uncomfortable

having the foster parents supervising his visit with no other family member present.

Tr. 112. Miller testified that James’ visits went well, except for his failure to

intervene in the incident during the second visit. Tr. 113. The first and third visits

went very well and the staff from Harmony House indicated that during the third

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visit James was appropriately redirecting J.A.. Tr. 113. Miller testified that the

foster parents reported that J.A. showed anxiety after the visits and “gets extra

clingy” needing reassurance from the foster parents. Tr. 114.

{¶19} As of the hearing date, Brandy had reported a new address, which was

her third since December. Tr. 114. Brandy is now living with a new man and Miller

knew nothing about him. Tr. 114. Brandy had told Miller that is the address she

intends to keep. Tr. 114. Miller had concerns about James’ address because the

address on his W-9 form was his mother’s home and he states he lives with his aunt

and uncle in Summit, North Carolina. Tr. 108. In Miller’s opinion, Brandy had

abandoned J.A. and had not worked with the Agency towards reunification since

the beginning. Tr. 115. Miller’s opinion was that although James did engage in

services in November 2020, there was not enough progress to recommend

reunification. Tr. 115. Miller testified that it would be in J.A.’s best interest to be

placed in the permanent custody of the Agency. Tr. 116. She describes J.A. as

being very bonded with his foster parents and the other children in the home. Tr.

117.

{¶20} On cross-examination, Miller testified that Brandy had not completed

the GAIN assessment. Tr. 121. Miller admitted that she was the fourth caseworker

and she had not spoken with any of the prior caseworkers to discuss whether any

visits had been requested. Tr. 124. She indicated that there was some

documentation that a prior caseworker had attempted to set up a visit for James, but

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the offered date did not work for the parties. Tr. 124. She also admitted that she

did not know if James could have obtained a visit prior to paternity being established

in July of 2020. Tr. 125. When Miller questioned James about his address, he

indicated that he was living in Summit, North Carolina, but worked remotely for a

company in Georgia. Tr. 127. Miller admitted that she had no reason to believe

that James had a criminal record. Tr. 128. Although James did not do the in person

visit with J.A. on his birthday, he did a zoom visit instead. Tr. 128. The zoom visits

are done because James has to travel from North Carolina for each of the in person

visits. Tr. 129. On redirect, Miller admitted that the only concern she has regarding

James’ address is that if he were living with his mother, her home study was denied.

If he were living with his aunt and uncle, the Agency would not have a concern

about the stable and safe housing. Tr. 131.

{¶21} Following the testimony of Miller, the Agency rested its case. Long,

the GAL, then took the stand. Long testified that she had not met Brandy or James

but she knew who they were. Tr. 135. She could not recall when either parent

requested visits before November 2020. Tr. 136. Long has visited with J.A. 26

times over the two years he has been in the Agency’s custody. Tr. 136. In the first

visits, he was very timid and would “freak out over every little thing.” Tr. 137.

Since the beginning, J.A. has moved foster placements five times and been with four

foster families. Tr. 137. The first family member to visit in person with J.A. was

his paternal grandmother in October 2020, and the visit went well. Tr. 138-39.

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Although J.A. clung to Bash at the beginning, he was opening up to his grandmother

by the end of the visit. Tr. 138-39. Having observed J.A. in the foster home, Long

testified that he was flourishing there. Tr. 139.

{¶22} On cross-examination, Long testified that she attempted to contact

Brandy and James up until disposition and then she stopped. Tr. 142. She has not

had any contact with them outside of contacting James’ attorney. Tr. 142. She also

has not observed any of the visits, but did review the video of the March visit where

J.A. starting hitting and kicking Brandy. Tr. 143. Long admitted that she did not

know what was causing J.A.’s behavioral issues at the beginning and they could

have just been from the removal from Brandy and being placed in the foster home.

Tr. 145. The changes in J.A.’s behavior could have been attributed somewhat to

J.A. getting older and continuing to develop. Tr. 146. She also admitted that

although she spoke with all the caseworkers about the visitation, she had not been

told about the emails from James requesting a paternity test and visitation at the

beginning of the case. Tr. 147. J.A.’s behavior at removal was no different from

other children his age who have been removed from their homes. Tr. 148.

{¶23} James testified that he lives in Browns Summit, North Carolina and is

the father of J.A. Tr. 155. He learned that J.A. had been taken into the custody of

the Agency on May 5, 2019, when he called Brandy’s mother to check on them.

Tr.155. He then contacted Linsey Jones (“Jones”) of the Agency by email as that is

the information Brandy gave him once he reached her. Tr. 156. He first emailed

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Jones on May 7, 2019. Tr. 156. At that time, he told Jones that he was J.A.’s father

and asked what he needed to do to get custody and how to visit him. Tr. 156. He

told Jones he would take the paternity test and gave her his contact information. Tr.

156-57. Jones did not get back to James about the test and the next time she told

him a different caseworker would be taking over the case. In June of 2019, Isaiah

Simmerman (“Simmerman”) became the caseworker. Tr. 157. Simmerman told

James that he was new and would have to get back to him about the paternity test.

Tr. 158. Simmerman then asked him if he had any relatives he would like to place

J.A. with as that would be quicker than getting J.A. placed with James. Tr. 158. He

gave them his sister’s name and they sent a form to her which she returned. Tr. 158.

The Agency never contacted his sister choosing Brandy’s father instead. Tr. 158.

Simmerman never contacted him regarding the paternity test. Tr. 158. James was

able to get a visit scheduled in September of 2019 right around a court hearing, but

James had car troubles and was unable to make the visit or the court hearing. Tr.

158. James testified that Simmerman told him that the ICPC process would be

completed before Thanksgiving. Tr. 159. According to James

Communication with [Simmerman], really, communication with the Agency in general is real sparse. You’ll call and call, not get called back. You’ll e-mail. You might get an e-mail back in three days. It might be two weeks. So [Simmerman] wasn’t really responding that well so I, I contacted him again in early November of 2019, asking for an update and the status and what all I needed to do and he was like, well, we’re still work, it’s still processing. It might not be done, the ICPC might not be done by Thanksgiving. It should be done by Christmas. And I e-mailed

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him back. He didn’t respond. Never heard from [Simmerman] again.

***

[A]s it got closer to Christmas, I bought [J.A.] a three foot My Paw Patrol tower, so I started calling the number and e-mailing [Simmerman] and not getting any response. [Loth] had said something that the caseworker should notify us when they change. We were not notified at all. * * * At one point, I want to say this was after Christmas, around, like, the 29th of December I called the jobs side of Hancock County CPS. And the lady told me she would walk over because somebody should be on that side. And she walked over there, but no one was over there, so I guess she left a message. And then about four days later, like January 3rd or 4th, [Loth] and Ashley Wells [(“Wells”)] called me. And that was the next contact.

Tr. 159-60. At that call, James asked Loth for an update on the ICPC and was told

not to worry about it because the Agency had filed a motion for permanent custody.

Tr. 160. James denied that he did not visit because of how it would affect him, but

rather because he knew that having him come and go would trigger J.A.’s separation

anxiety. Tr. 161. He also indicated in that call that he wanted custody of J.A. Tr.

161. Wells then contacted him the next day to attempt to arrange visits over

FaceTime. Tr. 161. James testified that he also emailed Wells trying to get

information as to how to set up the DNA testing for the paternity test, but there was

no response. Tr. 162. When James learned in February 2020 that Brandy’s father’s

ICPC was denied, he asked his attorney to have James added to the case plan for

services. Tr. 163. On June 24, 2020, James learned from his attorney that the

Agency had finally ordered the paternity test. Tr. 164. James contacted the Agency

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immediately and completed the test within a week of being notified. Tr. 164. In

September and October 2020, James attempted to contact Wells for an update on

J.A. and the case plan and the email came back as “undeliverable”. Tr. 165. James

then called multiple times before finally reaching Loth. Tr. 165. That’s when he

learned that Miller was now the caseworker. Tr. 165. After getting the introductory

email from Miller, he responded with questions. Tr. 165. Miller got back to him

after a week or two. Tr. 165.

{¶24} James indicated that he had been living with his mother until she

applied for kinship placement of J.A. Tr. 166. At that time the caseworker in North

Carolina told him he could not be there as he was the biological parent, so James

moved in with his aunt and uncle and completed a change of address. Tr. 166. The

address on the W-9 form was different because he had not changed his address

officially with the bank and he did not want there to be a discrepancy in information

for the reimbursement. Tr. 166. James testified that he did notify the Agency when

he moved to his current residence. Tr. 166. The Agency agreed to give him services

in December 2020. Tr. 167. When they sent the case plan, James noted there were

errors on it, such as saying that he lived in Georgia or that he was unable to

emotionally cope with seeing J.A. Tr. 167. Although the case plan did not require

him to take a parenting class, James voluntarily enrolled in a program certified

through the state of North Carolina and identified Exhibit D as the certificate for

that program. Tr. 168, 171. James identified Exhibits A and B as some of the email

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correspondence between himself and the Agency and himself and his first attorney.

Tr. 170-71. James indicated that since the beginning of the case he has been trying

to find out how to engage in visits and establish paternity, but was never given any

direct answers. Tr. 171. Once he had answers, he began doing as asked. Tr. 171.

According to James, he has had safe and stable housing since November of 2020.

James tried to set up visits to coincide with court hearings, but he was unable to

attend the one in September 2019 due to car trouble. Tr. 175. Then he tried to

schedule a visit around the February 19, 2020 hearing, but it was rescheduled to

March due to a conflict with the judge’s schedule. Tr. 175. The March court date

was then pushed back to October because of COVID. Tr. 175. James testified that

he requested to visit J.A. for his birthday in 2020, but no one got back to him. Tr.

176.

{¶25} On cross-examination James testified that after speaking with Jones in

May 2019, she sent him the information for his court appointed attorney and James

was first in contact with the attorney in mid May. Tr. 177. James denied ever

getting any copies of court orders regarding this case, he was just being told what

happened by his attorney. Tr. 178. James first found out that J.A. had been removed

from Brandy’s care when he could not reach Brandy for a while, so he called her

mother at the beginning of May. Tr. 182. The first hearing he knew about was

scheduled for May 23, 2019, which he learned about the day before. Tr. 183. James

was unable to make the hearing because he was in Georgia and had no vehicle at

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the time. Tr. 183. He also could not make the June 6, 2019, hearing because he

lacked transportation. Tr. 183. James did not get copies of the court entries, just

emails from his attorney and he claims he did not know to ask for them. Tr. 184.

James testified that he pushed for a family placement at first rather than custody to

him because Simmerman and his own attorney told him that would be the quickest

method of getting J.A. out of foster care. Tr. 186. Although James emailed Wells

about visits in February 2020, she did not get back to him until May 2020. Tr. 187.

The Agency kept telling him to direct any questions to his attorney and his attorney

kept telling him to ask the Agency. Tr. 187. The address on his tax return was his

current one, not his mother’s address. Tr. 189. James admitted that he cancelled

some of the visits in the winter because of weather and the roads were too icy to

drive through the mountains. Tr. 191. James claimed he did not physically

intervene between J.A. and Brandy during the visit because Harmony House’s rules

are that you cannot touch or move a child unless the child consents. Tr. 191. James

claims he asked his attorney to file for visitations many times. Tr. 192.

{¶26} On May 17, 2021, the trial court entered judgment granting the

Agency’s motion for permanent custody and terminating the parental rights of

Brandy and James. Doc. 149. Both Brandy and James filed timely notices of

appeal. Doc. 151, 162. On appeal the following assignments of error were raised.

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Brandy’s First Assignment of Error

The trial court’s decision is against the manifest weight of the evidence as [the Agency] did not prove by clear and convincing evidence that the Agency should be granted permanent custody of the minor child.

Brandy’s Second Assignment of Error

The trial court abused its discretion in finding that permanent custody to the Agency was in the minor child’s best interest.

James’ First Assignment of Error

The trial court’s finding that [James] “failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home is not supported by sufficient evidence, and/or is against the manifest weight of the evidence.

James’ Second Assignment of Error

The trial court’s finding that [James] “caused the child to suffer neglect between the date of the filing of the original complaint and the date of the filing of the motion for permanent custody” is not supported by sufficient evidence, and/or is against the manifest weight of the evidence.

James’ Third Assignment of Error

The trial court’s finding that [James] “demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child” is not supported by sufficient evidence, and/or is against the manifest weight of the evidence.

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James’ Fourth Assignment of Error

The trial court’s finding pursuant to R.C. 2151.414(E)(10) that [James] abandoned the child was not supported by clear and convincing evidence.

James’ Fifth Assignment of Error

The trial court’s finding pursuant to R.C. 2151.414(E)(14) that [James] is unwilling to provide shelter and other necessities for the child and is unwilling to prevent the child from suffering physical abuse or neglect was not supported by clear and convincing evidence.

James’ Sixth Assignment of Error

The trial court abused its discretion when it terminated [James’] parental rights citing abandonment and failure to remedy the circumstances causing the removal when father’s genetic testing was not arranged by the agency until July 2020, he was not added to the case plan until [December] 2020, and [James] was not involved in the incident causing the removal.

Sufficiency and Manifest Weight of the Evidence

{¶27} The right to parent one's own child is a basic and essential civil right.

In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). “Parents have a

‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 3d Dist. No. 5–02–52, 5–02–53, 5–02–54, 2003–Ohio–

1269, ¶ 6. These rights may be terminated, however, under appropriate

circumstances and when all due process safeguards have been followed. Id. When

considering a motion to terminate parental rights, the trial court must comply with

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the statutory requirements set forth in R.C. 2151.414. These requirements include,

in pertinent part, as follows.

(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:

(a) The child is not abandoned or orphaned, has not 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, * * * and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.

(b) The child is abandoned.

(d) 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 * * *.

For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to [R.C. 2151.28] or the date that is sixty days after the removal of the child from the home.

(C) In making the determination required by this section * * *, a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child. A

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written report of the guardian ad litem of the child shall be submitted to the court prior to or at the time of the hearing held pursuant to division (A) of this section * * * but shall not be submitted under oath.

If the court grants permanent custody of a child to a movant under this division, the court, upon the request of any party, shall file a written opinion setting forth its findings of fact and conclusions of law in relation to the proceeding. The court shall not deny an agency’s motion for permanent custody solely because the agency failed to implement any particular aspect of the child’s case plan.

R.C. 2151.414. A court’s decision to terminate parental rights will not be

overturned as against the manifest weight of the evidence if the record contains

competent, credible evidence by which a court can determine by clear and

convincing evidence that the essential statutory elements for a termination of

parental rights have been established. In re S.L., 3d Dist. Shelby Nos. 17-17-17, 17-

17-18, 17-17-19, 2018-Ohio-900, ¶ 24.

{¶28} The determination whether to grant a motion for permanent custody

requires a two-step approach. In re L.W., 3d Dist. Marion Nos. 9-16-55, 9-16-56,

2017-Ohio-4352, ¶ 5. The first step is to determine whether any of the factors set

forth in R.C. 2151.414(B)(1) apply. Id. If one of those circumstances applies, then

the trial court must consider whether granting the motion is in the best interest of

the child by considering the factors set forth in R.C. 2151.414(D). Id.

{¶29} Brandy claims in her first assignment of error that the trial court’s

granting of the Agency’s motion for permanent custody was not supported by

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sufficient evidence and was against the manifest weight of the evidence. A review

of the record shows that J.A. was removed from Brandy’s care after she struck him

repeatedly in the face causing his nose to bleed. The first case plan required Brandy

to “participate in the ICPC process if she remain[ed] in Michigan” or “engage in

case plan services if she mov[ed] to the state of Ohio in order to reunify with [J.A.]”

Exhibit 7. No explanation as to what exact services would be required was set forth

in the case plan. The case plan did grant weekly visitation to Brandy with each visit

being 1-2 hours. Exhibit 7. Although Brandy did make suggestions regarding

potential relative placements, she did not participate in the ICPC process or utilize

any of her visits for nearly two years. Tr. 77. Brandy did not even appear for

meetings or hearings and would go for long periods without contacting the Agency

at all. Testimony was presented that on the occasions Brandy did participate in

Agency meetings, she usually did not ask to see J.A. or even ask about how he was

doing. Brandy had no contact with J.A. from April 2019 until February 2021. By

the time of the hearing, she had visited with J.A. two times in two years. She had

not completed her GAIN assessment as required and from December 2020 until the

time of the hearing, she had three different addresses. None of those addresses had

been reviewed for suitability. She made no effort to do anything until December of

2020, despite having been a member on the case plan since its formation in May

2019.

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{¶30} In this case, the trial court found that J.A. could not be placed with his

parents within a reasonable time and that J.A. had been in the temporary custody of

the agency for at least twelve of the twenty-two months preceding the filing of the

motion for permanent custody. A review of the evidence shows that Brandy failed

to comply with the case plan and did not remedy the problems that caused the

removal of the child from the home. R.C. 2141.414(E)(1). Brandy made little to

no effort to have any contact with J.A. during the time he was in the temporary

custody of the Agency. R.C. 2151.414(E)(4). When determining whether a child

cannot or should not be placed with a parent with a reasonable time, the court

reviews the facts set forth in R.C. 2151.414(E). If the court finds by clear and

convincing evidence that one of the conditions is present, “the court shall enter a

finding that the child cannot be placed with either parent within a reasonable time

or should not be placed with either parent”. R.C. 2151.414(E). The trial court found

that multiple of the conditions were present. The trial court’s findings were

supported by the evidence as it applies to Brandy.

{¶31} Additionally, J.A. was placed in the custody of the Agency in April of

2019, with adjudication occurring on May 23, 2019. The Agency filed its motion

for permanent custody in February of 2021. This means that approximately 20 full

consecutive months had passed in which J.A. was in the temporary custody of the

Agency. The trial court specifically found that pursuant to R.C. 2151.414(B)(1)(d)

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was applicable in this case. Thus, the evidence supports the trial court’s findings

under R.C. 2151.414(B)(1) and (E). Brandy’s first assignment of error is overruled.

{¶32} Like Brandy, James claims that the trial court’s findings were against

the manifest weight of the evidence. Since all of James’ assignments of error

address the same issue, just different findings, we will address them together. In his

first assignment of error, James claims that the trial court erred in finding that he

failed to comply with the case plan and thus remedy the conditions causing the

removal of J.A. from the home. A review of the evidence shows that James had no

requirements under the case plan until plan 1.02 was implemented in December

2020 as he was not listed on any case plan before then. Without listing him on the

case plan, there was nothing required for him to remedy. After James was added to

the case plan in December 2020, he began actively working the case plan, including

completing the GAIN assessment completely and completing the ICPC review. He

even went above and beyond by taking a parenting class that was neither required

nor requested. The semi-annual review filed on February 19, 2020, before James

was ever added to the case plan, stated that James was in compliance with court

orders. Doc. 37. Loth testified that in her opinion, he was in compliance. Tr. 92-

93. Once James’ visits were established in January of 2021, he not only completed

three in person visits, he was also engaged in weekly zoom visits. According to the

testimony of Bash and Miller, missed in person visits were completed via zoom

visits. Miller admitted that the only reason she was recommending permanent

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custody was the visitation situation and also admitted that she did not know if he

would have been permitted to visit without being listed on the case plan. Logically,

it seems unfair to hold James responsible for not complying with Agency

recommendations for the majority of the time J.A. was in custody when the Agency

set forth no recommendations with which James could comply.

{¶33} Additionally, the cause of the removal was the domestic violence

perpetuated by Brandy against J.A. when James was not present. There was no

evidence presented that indicated James played any part in this condition. At the

time of the final hearing, James and Brandy were no longer involved in a

relationship. He was living in North Carolina with his aunt and uncle. Brandy was

living in Michigan with her new boyfriend. As mentioned above, James was not

even a party to any case plan until December 2020. Thus it would appear that the

trial court’s finding that James failed to remedy the condition causing J.A. to be

removed from the home was not supported by weight of the evidence.

{¶34} James’ second and third assignments of error are based on the

supposition that James neglected J.A. by not visiting him and that the lack of visits

showed a lack of commitment. The record shows that James did not even learn

about the Agency having custody of J.A. for over a month. Although the trial court

appointed counsel for James in April, service to James was done by publishing an

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announcement in the Findlay, Ohio newspaper.6 Service by publication is permitted

by Civil Rule 4.4 but it requires that the party seeking service by publication file an

affidavit with the court showing “that service of summons cannot be made because

the residence of the party to be served is unknown to the affiant, all of the efforts

made on behalf of the party to ascertain the residence of the party to be served, and

that the residence of the party to be served cannot be ascertained with reasonable

diligence. Civ.R. 4.4 (emphasis added). The Agency’s affidavit in this case failed

to state any of the efforts made to ascertain James’ address. Doc. 5. Instead it merely

requested service by publication “because his address is unknown to Affiant and

cannot be ascertained with reasonable diligence.” Doc. 5. This does not comply

with the civil rule. Thus no notice was actually received until May 2019 when James

first spoke to Brandy.

{¶35} Once James had notice, the undisputed testimony, supported by the

emails, was that he asked what needed to be done to establish paternity and get J.A.

Loth testified that she assumed child support would take care of it. James testified

that the caseworker told him to speak with his attorney and that his attorney told

him to speak with the Agency. James testified that he did not know how to go about

getting the test. The record contains numerous claims about what could have

happened, but what did happen was that on April 2, 2019, the trial court issued an

6 This is permitted by Civ.R. 4.4 even though James lived out of state and was highly unlikely to receive actual notice from such a publication which the Agency knew.

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order requiring the parents of J.A. report for DNA testing on May 7, 2019. Doc. 3.

The order only shows service on the Agency. Doc. 3. The notice of publication

only mentions the hearing on May 9, 2019. Doc. 5. Counsel was appointed for

James on April 4, 2019, even though he was only the presumptive father and no one

knew how to contact him at that time. Doc. 9. Nevertheless, a motion for a paternity

test was finally filed by the Agency in June 2020.

{¶36} Paternity was established in July with the Agency acknowledging it in

August. However, even after it was established, the Agency made no attempt to

modify the case plan to finally incorporate James into it. Instead, the Agency waited

until James specifically told him he wanted services. Until December 2020, James

was not listed on any case plan that would have provided visitation and the

caseworker testified that she did not know if he would have even been permitted to

visit before paternity was established. There was evidence from James that

Simmerman agreed to arrange a visitation before a court hearing in September 2019,

but it failed to happen when James had car trouble and was unable to come to Ohio

for the hearing. James also testified that the Agency also agreed to allow him a visit

before a hearing in March 2020. However that hearing and visit were cancelled due

to COVID protocols being implemented. There is no doubt that James should have

pushed the issue of visitation through his counsel. There is also no doubt that the

Agency was not doing anything to encourage James to visit either. The testimony

of the caseworker, of the supervisor, and of James seems to show that everyone was

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just waiting for someone else to do something. The evidence does not show that

James was ignoring his child or did not wish to see him. Thus, the finding that

James was a cause of neglect or lacked commitment to his child was not supported

by clear and convincing evidence.

{¶37} In his fifth assignment of error, James claims the trial court erred by

finding that he was unwilling to provide shelter for the child. The evidence was that

once the Agency added James to the case plan, he began to obtain the home study

to evaluate the propriety of his home. The ICPC was completed and recommended

that J.A. be placed with James. This does not show by clear and convincing

evidence that he was unwilling to care for or to provide shelter for J.A.

{¶38} James argues in the fourth assignment of error that the trial court erred

by determining that he had abandoned J.A. A child is presumed abandoned if a

parent fails to visit or maintain contact with the child for a period of 90 days even if

the parent subsequently resumes contact. R.C. 2151.011(C). Even if this court does

not count the time that James was not authorized by the case plan to contact J.A.

and only considers the period of time from when the paternity test established James

as the biological father in July of 2020 until the time James requested visitation in

late November 2020, more than 90 days had passed. Pursuant to the statutory

definition of abandonment, the trial court’s findings technically were supported by

the evidence.

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{¶39} Finally, James argues that the termination of his parental rights was

against the manifest weight of the evidence. Despite the evidence of what happened

and did not happen in this case, the evidence is clear that J.A. was adjudicated as a

dependent, neglected, and abused child on May 23, 2019. The motion for permanent

custody was filed on February 1, 2021. J.A. was therefore in the temporary custody

for more than 20 months of a consecutive 22 month period. Parental rights of a

parent may be terminated if the child is in the custody of the Agency for 12 out of a

consecutive 22 month period. R.C. 2151.414(B)(1)(d). The rights may also be

terminated if the child is determined to be an abandoned child, which J.A.

technically was, as discussed above. Although James’ assignment of error raise

valid questions and some of the trial court’s specific findings were not supported by

the evidence, other findings were supported. As long as one of the listed conditions

is met, the trial court’s judgment as a whole terminating the parental rights of James

was not against the manifest weight of the evidence. For this reason, James’ six

assignments of error are overruled.

Best Interest of the Child

{¶40} Brandy claims in her second assignment of error that the trial court’s

decision to grant the Agency’s motion for permanent custody was not in the best

interest of J.A.7 “Once a trial court has determined that one of the enumerated

7 James did not raise this issue as an assignment of error.

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provisions in R.C. 2151.414(B)(1) applies, it then must determine by clear and

convincing evidence whether granting the agency permanent custody of the child is

in the child's best interest.” In re A.N., 3d Dist. Marion No. 9-19-79, 2020-Ohio-

3322, ¶ 5.

(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section * * * the court shall consider all relevant factors, including, but not limited to, the following.

(a) 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;

(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, including whether the 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 * * *.

(d) 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.

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

R.C. 2151.414(D). A trial court must either specifically address each of the required

factors or otherwise provide some affirmative indication that it considered the listed

factors. A.N. supra.

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{¶41} Here the trial court specifically discussed each factor set forth in R.C.

2151.414(D). The trial court noted that J.A. was more attached to the foster parents

than either of his biological parents, that his behavior indicated he wished to stay

with the foster family, that he had been in the care of the Agency for the majority of

his life, and that J.A. needed to be in a legally secure permanent placement. Doc.

149. All of the findings identified evidence in support of them. Thus, there is

competent, credible evidence to support these findings by clear and convincing

evidence as they apply to Brandy. Brandy’s second assignment of error is overruled.

{¶42} Having found no errors prejudicial to either appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Hancock

County, Juvenile Division, is affirmed.

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls

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