In re J.H.

2022 Ohio 4405

Opinion

[Cite as In re J.H., 2022-Ohio-4405.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE J.H., ET AL. : : No. 111665 Minor Children : : [Appeal by N.H., Father] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 8, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-21902189 and AD-22900097

Appearances:

Michael Gordillo, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee CCDCFS.

EILEEN T. GALLAGHER, J.:

Appellant, Father (“appellant” or “Father”),1 appeals a juvenile court

judgment granting permanent custody of his minor children, A.T. and J.H., to

1 The parties are referred by the terms “Father” and “Mother” in accordance with this court’s established policy regarding non-disclosure of identities in juvenile cases. appellee, Cuyahoga County Division of Children and Family Services (“CCDCFS” or

“the agency”). He claims the following error:

The trial court’s award of permanent custody and termination of the appellant’s parental rights is against the manifest weight of the evidence.

We find that the trial court’s judgment is supported by the manifest

weight of the evidence and affirm the trial court’s judgment.

I. Facts and Procedural History

Appellant is the father of A.T., born in December 2018, and J.H., born

in November 2020. A.T. was removed from both her parents and placed in

emergency custody in February 2019 after CCDCFS received a report that neither

Father nor the child’s mother (“Mother”)2 were capable of properly caring for their

three-month old child. The agency was concerned that Mother, who was 17 years

old at the time, had substance abuse issues and demonstrated poor decision-making

abilities. The agency was also concerned that Father had problems with substance

abuse, lacked adequate housing and parenting skills, and was not involved with the

child. In June 2019, A.T. was adjudicated dependent and placed in the temporary

custody of the agency. A.T. has remained continuously in agency custody since that

time.

In August 2020, the agency filed a motion to modify temporary custody

of A.T. to permanent custody. During the pendency of those proceedings, J.H. was

2 Mother filed a separate appeal. See In re A.T., 8th Dist. Cuyahoga No. 111669. Therefore, this opinion concerns only Father’s appeal. born and removed to the agency where he has remained since birth. In November

2020, CCDCFS filed a complaint for dependency and temporary custody of J.H.,

alleging that both Mother and Father had an older child in agency custody. J.H. was

placed in the temporary custody of CCDCFS in June 2021, at which time the juvenile

court also ordered that A.T. be placed in the permanent custody of CCDCFS.

This court reversed the order placing A.T. in the permanent custody of

CCDCFS in an appeal brought by Mother, who had, at that time, made some

progress with her case plan. See In re A.T., 8th Dist. Cuyahoga No. 110689, 2021-

Ohio-4306. Father was not a party to that appeal. On remand, A.T. was again placed

in the predispositional temporary custody of CCDCFS pursuant to a newly-filed

complaint in January 2022. According to the newly-filed complaint, A.T.’s

continued removal was due, in part, to Father’s ongoing substance abuse, parenting

deficiencies, and domestic-violence and mental-health issues. By that time, Father

was also incarcerated and thus unable to care for A.T.

The court held an adjudicatory hearing on A.T’s case in February 2022.

Both Mother and Father appeared at the hearing with counsel and stipulated to

certain allegations. As relevant here, Father, who attended the hearing

telephonically from prison, admitted that he was currently incarcerated and that due

to his incarceration, he had not supported, visited, or communicated with A.T. since

birth. Based on the parties’ admissions, the court again adjudicated A.T. dependent

and ordered that she remain in the temporary custody of the agency. The juvenile court ultimately conducted a trial on the agency’s requests

for permanent custody of A.T. and J.H. in May 2022. Shakeyah McKether

(“McKether”), who is now a supervisor with CCDCFS, testified that she was

originally assigned to A.T.’s case in February 2019 when the agency took A.T. into

emergency custody. McKether testified that although the agency prepared to work

with Father to remedy the conditions that led to the children’s removal, he “did not

make himself available to the Agency” before he was incarcerated. (May 19, 2022,

tr. 36.)

According to Angela McAnerney (“McAnerney”), the CCDCFS case

worker who took over the cases of A.T. and J.H. in May 2021, the agency’s ultimate

goal was reunification of the children with either or both parents. (May 19, 2022, tr.

42.) However, Father never worked on a case plan to develop the skills necessary to

adequately parent the children due to his incarceration. (May 19, 2022, tr. 42.)

McAnerney explained that she mailed case plans to Father in prison, but he never

responded to them. (May 19, 2022, tr. 43.) Therefore, according to McAnerney,

Father never made any progress with any case-plan services designed to remedy the

conditions that lead to the removal of his children. McAnerney opined that an order

granting permanent custody of the children to the agency was in the children’s best

interest because neither parent had demonstrated that he or she had remedied the

problems that lead to the removal of the children in the first place.

Father testified on his own behalf at the trial. He stated that he had

been in prison since December 22, 2020, following a domestic-violence incident involving Mother. He was on probation for a different case at the time he committed

domestic violence, and the judge ordered him to serve the three-year suspended

sentence in the other case. Father testified that he was behaving well in prison, and

he expected to be released on November 12, 2022. While in prison, Father passed

his GED and was taking college courses. He stated that he was “a straight A student.”

(May 19, 2022, tr. 111.) Father also received ten certificates for completing various

programs in 2021 and obtained an OSHA 10 certificate.

On cross-examination, Father testified that he called Mother a few

times from prison “for the update on the well-being of [his] children.” (May 19,

2022, tr. 116.) When the prosecutor asked if Father had called McAnerny from

prison, Father claimed he was unable to call her because he could not call a

government agency collect. (May 19, 2022, tr. 118-119.) He admitted, however, that

he had “money on [his] phone” when he called Mother. (May 19, 2022, tr. 119.)

After asserting that he was a good father, Father acknowledged that he left Mother

in a stolen car with a broken foot when she was pregnant. (May 19, 2022, tr. 119.)

At the time of trial, J.H. and A.T. had been residing with the same

foster family since A.T. was three-months old and since J.H. was one-day old.

(May 19, 2022, tr. 56, 100.) The children’s foster mother, testified that the children

live in her home with herself, her husband, and their two biological sons, who are

12- and 9-years old. According to foster mother, the older two boys help care for the

younger children and “all four kids are very bonded.” (May 19, 2022, tr. 101.) The

younger children refer to them as their “brothers.” (May 19, 2022, tr. 100.) Russ Gates, the children’s guardian ad litem (“GAL”), also opined that

permanent custody was in the children’s best interest. He explained:

Based on my investigation, which is summarized in the report I submitted recently, I believe it would be in the best interest of both children to be committed to the permanent custody of the Agency.

I think if the children were returned to the mother, they would be at very high risk of neglect and abuse.

I think that they’re doing very well in the home that they’ve been in for their entire lives, basically. And to remove them from that and put them in a very traumatic ─ situation a risk of a very dangerous situation would be a bad idea.

(May 19, 2022, tr. 122.) In a written report, the GAL further explained, in relevant

part:

As alluded to, the Father is a danger to the children in my view, physically and emotionally, and an inappropriate caregiver. He is currently incarcerated for intimidation of a witness (threatening to kill his stepmother 30 times) and burglary. The Mother and Father have a history of violent altercation. On the other hand, both children are thriving in placement. There are no significant concerns for J.H. and A.T. in the view of the social worker and myself.

At the conclusion of the trial, the juvenile court determined that the

children could not be placed with either parent within a reasonable time and that

permanent custody was in their best interests. The court, therefore, granted

permanent custody of the children to the CCDCFS. This appeal followed. II. Law and Analysis

A. Standard of Review

In the sole assignment of error, Father argues the trial court’s award

of permanent custody and termination of Father’s parental rights is against the

manifest weight of the evidence.

A parent has a “fundamental liberty interest * * * in the care, custody,

and management of [his or her child].” Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388, 71 L.Ed.2d 599 (1982). The termination of parental rights is regarded as

“‘the family law equivalent of the death penalty in a criminal case.’” In re J.B., 8th

Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio

St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. Consequently, parents “‘must be

afforded every procedural and substantive protection the law allows.’” In re Hayes,

79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d

1, 16, 601 N.E.2d 45 (6th Dist.1991).

Nevertheless, a parent’s right to the care and custody of his or her child

is not absolute. In re L.G., 8th Dist. Cuyahoga No. 110789, 2022-Ohio-529, ¶ 49.

“‘[T]he natural rights of a parent * * * are always subject to the ultimate welfare of

the child, which is the polestar or controlling principal to be observed.’” In re L.D.,

2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59

Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979). B. Permanent Custody Standard

R.C. 2151.414 provides a two-prong analysis to be applied by a juvenile

court in adjudicating a motion for permanent custody. In re S.C., 2018-Ohio-2523,

115 N.E.3d 813, ¶ 20 (8th Dist.), citing R.C. 2151.414(B). This first prong authorizes

the juvenile court to grant permanent custody of a child to the public agency if, after

a hearing, the court determines, by clear and convincing evidence, that any of the

following factors apply: (a) the child is not abandoned or orphaned, but the child

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

with the child’s parents; (b) the child is abandoned; (c) the child is orphaned, and

there are no relatives of the child who are able to take permanent custody; (d) the

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

agencies or private child placing agencies for 12 or more months of a consecutive 22-

month period; or (e) the child or another child in the custody of the parent or parents

from whose custody the child has been removed has been adjudicated an abused,

neglected, or dependent child on three separate occasions by any court in this state

or another state. R.C. 2151.414(B)(1)(a)-(e).

When any one of the above factors exists, the second prong of the

analysis requires the juvenile court to determine, by clear and convincing evidence,

whether it is in the best interest of the child to grant permanent custody to the

agency pursuant to R.C. 2151.414(D).

“A juvenile court’s decision to grant permanent custody will not be

reversed as being against the manifest weight of the evidence ‘if the record contains some competent, credible evidence from which the court could have found that the

essential statutory elements for permanent custody had been established by clear

and convincing evidence.’” In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-

1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.

“‘Clear and convincing evidence’ is evidence that ‘will produce in the mind of the

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

established.’” In re T.B., 8th Dist. Cuyahoga No. 99931, 2014-Ohio-2051, ¶ 28,

quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

With respect to the first prong of the permanent-custody analysis, the

juvenile court found, pursuant to R.C. 2151.414(B)(1)(a), that the children were

neither abandoned nor orphaned, but they could not be placed with either parent

within a reasonable time or should not be placed with their parents.

C. Whether J.H. Could Not Be Placed With Father Within a Reasonable Time or Should Not be Placed With Father

R.C. 2151.414(E) provides a list of factors the court must consider in

determining whether or not children can be placed with a parent within a reasonable

time. If the juvenile court finds, by clear and convincing evidence, that at least one

of these enumerated factors exists as to each of the child’s parents, the juvenile court

must find 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 juvenile court found that J.H. and A.T. could not be placed with

either parent within a reasonable time or should not be placed with either parent, pursuant to R.C. 2151.414(E)(1), (E)(4), (E)(14), and (E)(16), but specifically

indicated that the children could not be placed with Father due to the factors listed

in R.C. 2151.515(E)(4), (E)(14), and (E)(16).

R.C. 2151.414(E)(4) provides that 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 if it finds that

[t]he parent has 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[.]

Prior to his incarceration, Father made no effort to regain custody of

his children. McKether testified that although the agency was prepared to work with

Father to remedy the conditions that led to the children’s removal, he “did not make

himself available to the Agency” before he was incarcerated. (May 19, 2022, tr. 36.)

Although McAnerney sent case plans to Father in prison, he never responded or

initiated contact with the agency even though the case plans provided the agency’s

contact information. McAnerney stated that “[t]he parents need to take some

initiative.” (May 19, 2022, tr. 94-95.) Father admitted on cross-examination that

he made no attempt to contact the agency while he was in prison even though he

had “money on [his] phone.” (May 19, 2022, tr. 118-119.) Therefore, the record

supports the juvenile court’s finding that Father demonstrated a lack of

commitment to the children by failing to contact the agency and by failing to do

whatever was necessary to regain custody of them. The juvenile court also found that Father was unwilling to provide

basic necessities for the children pursuant to R.C. 2151.414(E)(14). R.C.

2151.414(E)(14) provides that 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 if it finds that

[t]he parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.

There is no evidence that Father made any effort to provide any of the

necessities his children require before he was incarcerated. Although McKether

attempted to work with Father while he was a resident at Oriana House, a drug

treatment facility, he “went AWOL.” (May 19, 2022, tr. 38.) And, as previously

stated, Father made no effort from prison to work with the agency to do the work

necessary to claim custody of the children. He completely neglected them.

Therefore, the trial court’s finding that Father was unwilling to provide basic

necessities for J.H. pursuant to R.C. 2151.414(E)(14) is supported by the evidence.

Finally, the juvenile court found that the children could not be

returned to Father within a reasonable time pursuant to R.C. 2151.414(E)(16), which

allows the court to consider “[a]ny other factor the court considers relevant.” With

respect to this factor, the court noted that Father was incarcerated. He, therefore,

had no visits with the children during his period of incarceration, and the record is

also devoid of any evidence that Father visited the children prior to his incarceration. Indeed, there was a no-contact order that prohibited him from visiting with A.T.,

and there is no evidence that Father ever visited with J.H. (May 19, 2022, tr. 38-

39.) Therefore, the trial court’s finding that the children could not be placed with

Father within a reasonable time is supported by the manifest weight of the evidence.

D. Best Interest of the Child

Having determined that the children could not be placed with either

parent within a reasonable time, we now turn to the second prong of our analysis,

which requires the court to determine, by clear and convincing evidence, whether it

is in the best interest of the child to grant permanent custody to the agency pursuant

to R.C. 2151.414(D).

We recognize that, given the nature of the proceeding and the impact

the court’s decision will have on the lives of the parties concerned, the juvenile court

enjoys broad discretion in determining whether an order of permanent custody is in

the child’s best interest. In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th

Dist.1994). We, therefore, review a juvenile court’s determination of a child’s best

interests under R.C. 2151.414(D) for abuse of discretion. In re D.A., 8th Dist.

Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47.

An abuse of discretion occurs when a court exercises its judgment in

an unwarranted way regarding a matter over which it has discretionary authority.

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

In other words, “[a] court abuses its discretion when a legal rule entrusts a decision

to a judge’s discretion and the judge’s exercise of that discretion is outside of the legally permissible range of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-

Ohio-6699, 172 N.E.3d 75, ¶ 19.

This court has held that an abuse of discretion may be found where a

trial court “applies the wrong legal standard, misapplies the correct legal standard,

or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio

App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When applying the

abuse of discretion standard, a reviewing court may not substitute its judgment for

that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22

(8th Dist.).

In determining the best interest of the child, R.C. 2151.414(D) requires

the court to consider all relevant factors, including but not limited to (1) the

interaction and interrelationship of the child with the child’s parents, sibling,

relatives, foster parents, and out-of-home providers, and any other person who may

significantly affect the child; (2) the wishes of the child as expressed directly by the

child or through the child’s guardian ad litem; (3) the custodial history of the child;

(4) 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; and

(5) whether any factors in R.C. 2151.414(E)(7) through (11) are applicable.

Although a trial court is required to consider each of the R.C.

2151.414(D)(1) factors in making its permanent custody determination, “there is not

one element that is given greater weight than the others pursuant to the statute.” In

re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Moreover, only one factor needs to be resolved in favor of permanent custody in order to find

that permanent custody is in the child’s best interest. In re S.C., 8th Dist. Cuyahoga

No. 102350, 2015-Ohio-2410, ¶ 30.

Since Father failed to visit either child, there is no evidence of a bond

between Father and either of his children. Yet, the evidence shows that both

children are closely bonded with each other and all the members of their foster

family. The evidence also established that A.T. has been living in temporary custody

since she was three months old and J.H. had been in temporary custody and living

with the foster family for his entire life. Thus, the first and third factors weigh

strongly in favor of permanent custody.

J.H. was 18 months old and A.T. was three and-one-half years old at

the time of trial. They, therefore, could not express their own wishes regarding

custody. However, the GAL stated that permanent custody was in the best interest

of both children and that they would be in danger if Father regained custody of them.

The GAL stated in his report: “[T]he Father is a danger to the children in my view,

physically and emotionally, and an inappropriate caregiver.” Therefore, this factor

also weighs in favor of permanent custody.

Although J.H. had not been in temporary custody for 12 or more

months of a consecutive 22-month period, the evidence showed that Father was

unable to care for him within a reasonable time due to his incarceration and failure

to complete any case plan objectives. And, A.T. had been in custody for over three

years. Therefore, both children needed a permanent placement that could only be achieved by an order granting permanent custody to the agency. Therefore, clear

and convincing evidence supports the juvenile court’s determination that

permanent custody was in the children’s best interest.

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and MARY EILEEN KILBANE, J., CONCUR