In re J.K.
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Opinion
[Cite as In re J.K., 2024-Ohio-2333.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
In re J.K. Court of Appeals Nos. WM-24-005
Trial Court Nos. JUV20223075
DECISION AND JUDGMENT
Decided: June 18, 2024
*****
Rachael A. Sostoi, for appellee.
Avery C. Demland and Taylor G. Vance, for appellant.
DUHART, J.
{¶ 1} This is an appeal from the December 28, 2023, judgment of the Williams
County Court of Common Pleas, Juvenile Division, terminating the parental rights of
appellant, Je.K., the father of minor child, J.K., and granting permanent custody of the
child to appellee, Williams County Department of Job and Family Services (“the
agency”). For the reasons that follow, we affirm the judgment. {¶ 2} Father sets forth one assignment of error:
[Father] received ineffective assistance of counsel because [father’s]
juvenile court counsel failed to file a bypass motion.
Background
{¶ 3} The child was born in August 2010, to mother, J.L., and father, who were
not married. In December 2020, the child was removed from mother’s custody by
Indiana Child Services and placed with father.
{¶ 4} In March 2022, mother pled to and was found guilty of one count of child
molestation, a level 3 felony in Indiana, and one count of child exploitation, a level 4
felony. The victims of her offenses were her children. An order prohibits mother from
having any contact with the child. Mother will be in prison until December 2031.
Father - Agency Involvement
{¶ 5} On August 23, 2022, the agency received a report that alleged father grabbed
the child by the neck and pulled his hair, after which the child left the home, upset, and
when he returned, it was dark outside and he was locked out of the home because father
had left. It was also reported that father used methamphetamines (“meth”), the home was
unsanitary, and the child went to neighbors’ houses begging for food, as there was no
food at the home.
{¶ 6} On August 24, 2022, Lacey Laporte, an investigator for the agency, went to
father’s home and found the child there alone, but he had a phone in case of emergency.
2. Laporte gave the child a speed letter to give to father, which directed father to contact the
agency. Father called the investigator and asked about the report allegations; he admitted
he pulled the child’s hair.
{¶ 7} On August 30, 2022, Laporte met with father at the home. There were no
environmental hazards in the home, and there was food. Father admitted he pulled the
child’s hair but denied choking him. Father was drug-tested.
{¶ 8} On September 8, 2022, the results of father’s drug tested were received by
the agency; father tested positive for meth and amph. The next day, the child was “safety
planned” out of father’s home with Barry, father’s friend and landlord, who was willing
to keep the child for a day or two. On September 12, the child was safety-planned with
father’s aunt (“aunt”).
{¶ 9} The agency found the allegations in the report were true, in part, and the
case was substantiated for physical abuse, neglect and emotional maltreatment.
{¶ 10} On September 20, 2022, father completed an assessment, and it was
recommended that he undergo intensive outpatient therapy (“IOP”) and individual
counseling.
{¶ 11} On September 30, 2022, the agency filed a complaint alleging the child was
abused and neglected.
{¶ 12} On October 5, 2022, a guardian ad litem (“GAL”) was appointed; she filed
four reports throughout the case.
3. {¶ 13} On October 26, 2022, a case plan meeting was held to review case plan
service, with the goal of reunification. Present at the meeting were, inter alia, father and
Mindy Edwards, who was the child’s guidance counselor at Edon School. Father agreed
to the case plan, which included: complete assessments, follow recommendations for
mental health, substance abuse treatment and medication management; comply with
random drug screens; test negative for all illegal substances; obtain and maintain stable
housing and employment; complete parenting education; comply with monthly
caseworker visit; and provide the agency with up-dated contact information.
{¶ 14} A hearing was held November 16, 2022, and father was ordered to submit
to a drug screen; the screen was negative for all substances.
{¶ 15} On November 30, 2022, the adjudicatory hearing was held, during which
the court found probable cause to order father to submit to a drug screen. The screen was
positive for meth, amph, ecstasy and alcohol. Father consented to a finding that the child
was abused and neglected, and agreed the child should remain in the aunt’s temporary
custody. The court found the child was abused and neglected, and noted father’s drug
use was a significant factor.
{¶ 16} On December 29, 2022, the disposition hearing was held. The court
ordered, inter alia, that: the child remain in the aunt’s temporary custody; the case plan be
adopted and followed; and father participate in Family Intervention Court (“FIC”) and
successfully complete the program. Father agreed to go to FIC and began that same day.
4. {¶ 17} On December 31, 2022, the court reviewed father’s participation in FIC
and found he was non-compliant.
{¶ 18} On January 5, 2023, the court conducted its second review of father’s
participation in FIC, and found he was non-compliant.
{¶ 19} On January 6 and 12, 2023, father failed to appear for FIC.
{¶ 20} On January 17, 2023, a review hearing was held; father attended. Father
was unsuccessfully discharged from FIC because he missed the first two weeks of court;
he did not challenge this ruling. Also, temporary custody of the child was officially
transferred to the agency, due to the aunt’s long stay in Florida.
{¶ 21} On March 9, 2023, a motion to show cause was filed for father’s failure to
comply with his mental health and substance abuse counseling and parenting education
under the court-ordered case plan. Father had also failed to set up supervised visits with
the child.
{¶ 22} On March 29, 2023, a semi-annual review hearing was held, as was a
hearing on the motion to show cause. Father did not appear at the hearings. The court
ordered the agency to present a permanency plan to the court by the next court date.
Also, the court sentenced father to 30 days in jail for contempt but allowed him to purge
the contempt by immediately engaging in his case plan services. A bench warrant was
issued.
5. {¶ 23} On April 28, 2023, father’s counsel filed a notice with the court advising
that father entered an in-patient detox facility on March 30, 2023, and transitioned to a
residential program on April 6, 2023,1 where he was required to stay for 30 days in order
to be successfully discharged. No reason was provided to the court as to why father did
not appear at the hearings on March 29, 2023.
{¶ 24} On May 4, 2023, father completed a second assessment and was referred
for, inter alia, IOP, individual counseling and psychiatric services. He failed to engage in
services.
{¶ 25} On June 27, 2023, the court held a nine-month review hearing, which father
attended. The agency reported father had made little progress with his case plan services.
The court ordered father to report for a drug test after the hearing; father failed to report.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re J.K., 2024-Ohio-2333.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
In re J.K. Court of Appeals Nos. WM-24-005
Trial Court Nos. JUV20223075
DECISION AND JUDGMENT
Decided: June 18, 2024
*****
Rachael A. Sostoi, for appellee.
Avery C. Demland and Taylor G. Vance, for appellant.
DUHART, J.
{¶ 1} This is an appeal from the December 28, 2023, judgment of the Williams
County Court of Common Pleas, Juvenile Division, terminating the parental rights of
appellant, Je.K., the father of minor child, J.K., and granting permanent custody of the
child to appellee, Williams County Department of Job and Family Services (“the
agency”). For the reasons that follow, we affirm the judgment. {¶ 2} Father sets forth one assignment of error:
[Father] received ineffective assistance of counsel because [father’s]
juvenile court counsel failed to file a bypass motion.
Background
{¶ 3} The child was born in August 2010, to mother, J.L., and father, who were
not married. In December 2020, the child was removed from mother’s custody by
Indiana Child Services and placed with father.
{¶ 4} In March 2022, mother pled to and was found guilty of one count of child
molestation, a level 3 felony in Indiana, and one count of child exploitation, a level 4
felony. The victims of her offenses were her children. An order prohibits mother from
having any contact with the child. Mother will be in prison until December 2031.
Father - Agency Involvement
{¶ 5} On August 23, 2022, the agency received a report that alleged father grabbed
the child by the neck and pulled his hair, after which the child left the home, upset, and
when he returned, it was dark outside and he was locked out of the home because father
had left. It was also reported that father used methamphetamines (“meth”), the home was
unsanitary, and the child went to neighbors’ houses begging for food, as there was no
food at the home.
{¶ 6} On August 24, 2022, Lacey Laporte, an investigator for the agency, went to
father’s home and found the child there alone, but he had a phone in case of emergency.
2. Laporte gave the child a speed letter to give to father, which directed father to contact the
agency. Father called the investigator and asked about the report allegations; he admitted
he pulled the child’s hair.
{¶ 7} On August 30, 2022, Laporte met with father at the home. There were no
environmental hazards in the home, and there was food. Father admitted he pulled the
child’s hair but denied choking him. Father was drug-tested.
{¶ 8} On September 8, 2022, the results of father’s drug tested were received by
the agency; father tested positive for meth and amph. The next day, the child was “safety
planned” out of father’s home with Barry, father’s friend and landlord, who was willing
to keep the child for a day or two. On September 12, the child was safety-planned with
father’s aunt (“aunt”).
{¶ 9} The agency found the allegations in the report were true, in part, and the
case was substantiated for physical abuse, neglect and emotional maltreatment.
{¶ 10} On September 20, 2022, father completed an assessment, and it was
recommended that he undergo intensive outpatient therapy (“IOP”) and individual
counseling.
{¶ 11} On September 30, 2022, the agency filed a complaint alleging the child was
abused and neglected.
{¶ 12} On October 5, 2022, a guardian ad litem (“GAL”) was appointed; she filed
four reports throughout the case.
3. {¶ 13} On October 26, 2022, a case plan meeting was held to review case plan
service, with the goal of reunification. Present at the meeting were, inter alia, father and
Mindy Edwards, who was the child’s guidance counselor at Edon School. Father agreed
to the case plan, which included: complete assessments, follow recommendations for
mental health, substance abuse treatment and medication management; comply with
random drug screens; test negative for all illegal substances; obtain and maintain stable
housing and employment; complete parenting education; comply with monthly
caseworker visit; and provide the agency with up-dated contact information.
{¶ 14} A hearing was held November 16, 2022, and father was ordered to submit
to a drug screen; the screen was negative for all substances.
{¶ 15} On November 30, 2022, the adjudicatory hearing was held, during which
the court found probable cause to order father to submit to a drug screen. The screen was
positive for meth, amph, ecstasy and alcohol. Father consented to a finding that the child
was abused and neglected, and agreed the child should remain in the aunt’s temporary
custody. The court found the child was abused and neglected, and noted father’s drug
use was a significant factor.
{¶ 16} On December 29, 2022, the disposition hearing was held. The court
ordered, inter alia, that: the child remain in the aunt’s temporary custody; the case plan be
adopted and followed; and father participate in Family Intervention Court (“FIC”) and
successfully complete the program. Father agreed to go to FIC and began that same day.
4. {¶ 17} On December 31, 2022, the court reviewed father’s participation in FIC
and found he was non-compliant.
{¶ 18} On January 5, 2023, the court conducted its second review of father’s
participation in FIC, and found he was non-compliant.
{¶ 19} On January 6 and 12, 2023, father failed to appear for FIC.
{¶ 20} On January 17, 2023, a review hearing was held; father attended. Father
was unsuccessfully discharged from FIC because he missed the first two weeks of court;
he did not challenge this ruling. Also, temporary custody of the child was officially
transferred to the agency, due to the aunt’s long stay in Florida.
{¶ 21} On March 9, 2023, a motion to show cause was filed for father’s failure to
comply with his mental health and substance abuse counseling and parenting education
under the court-ordered case plan. Father had also failed to set up supervised visits with
the child.
{¶ 22} On March 29, 2023, a semi-annual review hearing was held, as was a
hearing on the motion to show cause. Father did not appear at the hearings. The court
ordered the agency to present a permanency plan to the court by the next court date.
Also, the court sentenced father to 30 days in jail for contempt but allowed him to purge
the contempt by immediately engaging in his case plan services. A bench warrant was
issued.
5. {¶ 23} On April 28, 2023, father’s counsel filed a notice with the court advising
that father entered an in-patient detox facility on March 30, 2023, and transitioned to a
residential program on April 6, 2023,1 where he was required to stay for 30 days in order
to be successfully discharged. No reason was provided to the court as to why father did
not appear at the hearings on March 29, 2023.
{¶ 24} On May 4, 2023, father completed a second assessment and was referred
for, inter alia, IOP, individual counseling and psychiatric services. He failed to engage in
services.
{¶ 25} On June 27, 2023, the court held a nine-month review hearing, which father
attended. The agency reported father had made little progress with his case plan services.
The court ordered father to report for a drug test after the hearing; father failed to report.
{¶ 26} On August 17, 2023, the agency filed a notice with the court that Shalom
Mediation and Counseling Services (“Shalom”) terminated father from services due to
father’s noncompliance.
{¶ 27} On September 5, 2023, the agency filed a motion for a bypass hearing,
alleging it believed there were compelling reasons to keep the case open so father could
work towards reunification with the child.
{¶ 28} On September 12, 2023, father completed a third assessment, and an
increased level of care to residential placement was recommended.
1 Father was unsuccessfully released from the residential program that same day.
6. {¶ 29} On September 22, 2023, the agency filed a motion for permanent custody
of the child.
{¶ 30} On September 26, 2023, the agency orally withdrew its bypass motion.
{¶ 31} On December 4 and 5, 2023, the hearing on the agency’s motion for
permanent custody was held.
{¶ 32} On December 28, 2023, the court issued its judgment entry terminating
mother and father’s parental rights and awarding permanent custody of the child to the
agency.
{¶ 33} Father appealed.
Child
{¶ 34} Before this case was filed, and during the pendency of the case, the child
has had significant issues and multiple delinquency complaints filed. Child had lived
with mother until her arrest for sexual offenses against her children.
December 2020
{¶ 35} The child was removed from mother’s custody and placed with father. The
child was diagnosed with anxiety and ADHD and was on medication management
through his primary physician.
{¶ 36} In May 2022, the child was assigned to the court’s diversion program, and
in September 2022, delinquency charges were filed against the child.
7. Aunt’s Home
{¶ 37} On September 12, 2022, the child was safety-planned to aunt’s home, and
on September 28, 2022, through a delinquency hearing, aunt was named the temporary
custodian of the child. Juvenile court retained the child in the diversion program, but in
October 2022, a new delinquency complaint, alleging criminal mischief, was filed against
the child. When the child was adjudicated delinquent, he was removed from the
diversion program and placed on reporting probation.
{¶ 38} Beginning in October 2022, the child attended school regularly at IEC2 due
to his behavioral issues. He had been suspended from his last school because he choked
another child and threw things at the bus driver. While at IEC, the child made significant
progress with his behavioral issues and had no issues. His grades for the school year
were all A’s and one B, in gym.
Foster Home
{¶ 39} On January 17, 2023, father was referred to Shalom so he could register for
supervised visitation with the child. At the foster home, the child had behavioral issues,
and on February 22, 2023, he called other youths in the home vulgar names, locked a
youth out of the home, then choked another youth and threw him to the ground. On
March 5, 2023, the child slapped a youth across the face, snapped a youth’s laptop in half
2 IEC stands for Independent Education Center, it is a behavioral school.
8. and chased a youth around outside. The sheriff was called when the child got violent and
punched the siding and windows and pulled on the shutters of the home. The child was
taken to JDC, then released on March 8, 2023, back to the foster home.
{¶ 40} The child told his caseworker, Kelsey Fruchey, that he had not spoken to
father much on the phone while in the foster home, as child tried to call but father did not
always answer. The child only had two visits with father - one in May and one in June
2023. The child said the visits were fine, except when he was yelled at by father because
he wanted to call and talk with father more often.
{¶ 41} In July 2023, the foster parent took the child to a new medical provider
who changed the child’s medication; this was without the agency’s knowledge or
consent. In July and August 2023, the child’s behaviors were significantly worse, and he
had a lot of physical aggression towards other youths.
{¶ 42} On August 14, 2023, the child was again taken to JDC because he was
defiant and unruly at the foster home. In late August 2023, the juvenile court ordered that
the child immediately be placed at Marsh Foundation (“Marsh”), a residential treatment
facility.
Marsh
{¶ 43} The child arrived at Marsh on August 30, 2023. Caseworker Fruchey
received four incident reports for the child, on September 4 and 6, 2023, for fighting with
other youths, being defiant and breaking a window. On September 6, 2023, the
caseworker was at Marsh completing a visit with the child when she witnessed the child
9. become violent with a youth, and try to get into another youth’s room, by banging on the
door when the youth would not open it. The child made suicidal threats, so Fruchey
contacted the prosecutor, who had the child’s probation officer pick him up at Marsh and
transport him to JDC. The child was at JDC from September 6 through 12, 2023.
{¶ 44} A delinquency hearing was held on September 12, 2023; father did not
attend. The court again placed the child at Marsh. The court was advised that the child’s
interactions by phone with father created increased behavioral issues. In an effort to
stabilize the child due to his many placements, and his behaviors after talking with father,
the court issued a no-contact order between father and child, which was in effect until the
Marsh counselor recommended contact between father and child.
{¶ 45} On October 6, 2023, the child was involved in a fist fight with another
youth, so he was removed from Marsh and taken to JDC. The delinquency hearing was
held on October 10, 2023; father did not attend. The child was held at JDC from October
6 through November 15, 2023, during which time, his medication was changed and there
was a noticeable improvement in the child’s demeanor, attitude and conduct.
Group Home
{¶ 46} On November 15, 2023, the child was placed in a group home, where he
did well. He had one minor incident, but he was able to calm himself down very quickly.
Hearing on Agency’s Motion for Permanent Custody
{¶ 47} On December 4 and 5, 2023, the hearing on the agency’s motion was held.
On the first day of the hearing, the agency, GAL and father joined in a request that the
10. court conduct an in-camera interview of the child. The court granted the motion,
arranged for and conducted the interview with the child; the GAL was present. The court
found the child had the capacity to understand the pending case, and he had the maturity
to express his wishes, which were consistent with the GAL’s recommendations.
Caseworker Kelsey Fruchey
{¶ 48} In addition to the background information above, Fruchey testified as
follows. She worked as an agency ongoing caseworker and was the child’s only
caseworker.
{¶ 49} Fruchey explained that when the child was safety-planned, it meant father
agreed to place the child in someone else’s care while father worked on his case plan
goals.
{¶ 50} In October, the child completed an assessment at the Center for Child and
Family Advocacy (“CAF”) for counseling.
{¶ 51} On November 15, the child was placed in a foster home.
{¶ 52} In December, the agency sent out two requests to the state of Indiana for
potential family placements for the child. One request was for mother’s sister and the
other request was for the child’s sister. Mother’s sister screened positive for amph, meth,
cocaine, heroin, morphine, and fentanyl; that request was denied. The child’s sister, who
was 18 years old, was not able to take the child.
11. 2023
{¶ 53} The agency was unable to contact father in January or February, so Fruchey
was unable to let father know that the child was in a foster home. The child continued
with services through CAF, including medication management. In the beginning, the
child had minimal behavior issues, but on March 4, he went to JDC due to a delinquency
matter. Thereafter, the child was released back to the foster home.
{¶ 54} In mid-May, the agency sent out a request to the state of Indiana for an
uncle’s potential placement for the child. The uncle had reached out to the agency
requesting that the child be placed with him. Uncle was drug-tested and was positive for
cocaine. Uncle also had an extensive criminal history, so the request was denied.
{¶ 55} On July 13, the agency received notice from Shalom that father was
terminated from services. Fruchey tried to send another referral to Shalom at the end of
July, but Shalom said father was terminated from all services and would not be allowed at
Shalom.
{¶ 56} When the child was placed at Marsh, on August 30, he did not want to be
there and did not want to stay. Fruchey had conversations with him about giving Marsh a
chance, but he did not like change, so it took him a little while to adjust. The child
attended school on site at Marsh, he had access to a counselor 24/7, and he resided there.
His attitude got better, but he still did not want to be there.
{¶ 57} At the time of the December hearing, the child was on juvenile probation.
He was in and out of court due to his physical aggression.
12. Case Plan Goals
PRC
{¶ 58} Father complied with the goal to complete applications for PRC funding.3
Father sought PRC money for his electric bill, which was over $3,000, and for car
repairs. PRC was only available if the parent was involved in case plan services. Father
was not, so he requests were denied.
Employment
{¶ 59} Father did not comply with the goal to maintain stable employment,
although he said he had several jobs during the case: in December 2022, he reported he
worked for a tool company in Indiana; December 29, 2022, he was unemployed but said
he had multiple job offers and he planned to start working at Taco Bell, in Ohio; in
January and March 2023, he was unemployed; in May 2023, he said he worked at a
restaurant in Indiana; and in August 2023, he reported he was employed at a gas station
in Edon, Ohio. Fruchey was not able to verify any of father’s jobs, except for the gas
station. Father was not employed at the time of the hearing.
Meetings
{¶ 60} Father did not complete the goal to meet with an agency worker at least
once a month to monitor his progress. The following shows when an agency worker
3 PRC paid for visitations, parenting classes and other services. Without a completed application, the parent had to self-pay for the services.
13. successfully met with father or attempted to meet with him but was unsuccessful:
Successful visits in 2022:
August 30 and September 13 and 19, home visits; October 26, visit at
juvenile probation after Fruchey was alerted that father was there; and
November 9, agency visit;
Successful visits in 2023:
March 3, home visit; May 4, agency visit; September 13, agency visit; and
November 27, visit at Team.
Unsuccessful visits in 2022:
October 6, 11, 17 and 21; November 7, 15 and 18; December 6, 13 and 15;
Unsuccessful visits in 2023:
January 3, 20 and 27; February 3, 7 and 15; early March; April 6, 13 and
18; May 16 and 25; June 2, 14 and 16; July 18, 25 and 28; August 3, 4 and
11; September 18; October 20; and November 11.
{¶ 61} On October 20, 24 and 26, Fruchey attempted to locate father by phone,
email and social media, but was unsuccessful.
{¶ 62} On October 26, 2023, Midwest informed Fruchey father was at the facility.
{¶ 63} On October 30, 2023, Fruchey attempted to contact father at Midwest but
was unsuccessful.
{¶ 64} On November 17, 2023, Fruchey spoke with father on his cellphone.
14. {¶ 65} Fruchey had a total of five meetings with father - three at the agency and
two at his house. It was not normal for her to have only two home visits in a case filed
over one year ago. She completed visits with father at the agency, “because he would
show up [there].” All of Fruchey’s attempted visits were at father’s home. She also
spoke with father on and off throughout the case, but he did not proactively reach out to
her.
FIC
{¶ 66} Father did not meet his case plan goal of successfully completing FIC.
Parenting Education Classes
{¶ 67} Father failed to successfully complete parenting classes.
Drug Screens
{¶ 68} Father did not complete his case plan goal of taking random drug screens
and producing negative results. Fruchey was shown a report, admitted into evidence,
from Forensic Fluids Laboratories to the agency of father’s drug screen results, and
testified to the following:
August 30 - positive for amph, meth and THC;
September 8, October 26 and November 10 - positive for amph and meth;
September 13, November 9, 16 and 18 - negative for all substances;
January 6, March 3, August 8 and September 21 - positive for meth and amph;
15. May 4 - negative for all substances.
Mental Health and Substance Abuse Treatments
{¶ 69} Father did not complete the case plan goal to follow recommendations for
mental health, substance abuse treatment and medication management. See the testimony
of Alexis Sinn, father and Jeffrey Miller, below.
The Child
{¶ 70} Throughout the case, Fruchey saw the child at least three times a month.
When the case began, the child shared that father pulled his hair and put his hands around
the child’s neck, but did not squeeze or choke the child.
{¶ 71} When the child was at the foster home, the other foster children had visits
with their parents, so the child was very curious why he was not permitted to have visits
or regular phone calls with father. The child finally visited with father in May and June
2023, and after the visits, the child had behavioral issues, especially after the June visit.
Father left early from the June visit, and that evening, the child’s behavior at the foster
home was very disruptive - he punched things in the home, kicked the outside of the
home, and tried to rip the shutters off the house.
{¶ 72} At the group home, the child had access to a counselor 24/7, and started
seeing another counselor, who he liked. He will be enrolled into Leap schooling in
Toledo but can transition into public school if he has no behavioral issues at Leap for at
least two months. The child was signed up and had a caseworker at OhioRise, which
provided case management services. The child was eligible for $1,500 to purchase items
16. linked to a mental health service, and since he used music as a coping mechanism,
OhioRise bought him an MP3 player and headphones, which he used to calm down if he
felt angry.
{¶ 73} The group home was very large and had an indoor pool, a movie theater
room, an X-box room and the child has his own room. He rode his bike or the electric
scooters and enjoyed going grocery shopping with the group home leaders to pick out his
own snacks. There were seven other boys in the home, the child was the youngest and he
had no issues with any of the other boys, as they all seemed to get along very well. The
older boys kind of took the child under their wings, as they all went through similar
situations, so the child bonded with them over that.
{¶ 74} Since the child was placed in the group home on November 15, 2023, he
did not ask to see father or talk to him. Father was not aware of where the child was
placed until November 27, 2023, when Fruchey was able to complete a home visit with
father, and up-dated father on where the child had been living for over a year.
{¶ 75} The child communicated by phone with his sister, and the calls went very
well. He enjoyed talking to his sister. They did not talk about anything upsetting or
triggering to him. There were no concerns with the phone calls, and the calls were
supervised.
{¶ 76} At the time of the hearing, the child did not wish to have a relationship with
father, because the child was just tired of being disappointed. The child wanted to reside
with his aunt, but he understood that was not an option at this point. However, the child
17. visited his aunt and spent Thanksgiving with her at her home. The child was comfortable
at the group home, liked it and was doing very well. The people at the group home
thought he was a great kid and were hopeful he could remain there for as long as he
needed; it could be a long-term placement for the child.
{¶ 77} If the agency was granted permanent custody of the child, he would stay at
the group home, and be transferred to an adoption case worker. The child would remain
at the group home unless adopted. Fruchey did not believe that either parent was an
appropriate placement for the child.
Counselor Alexis Sinn
{¶ 78} Sinn testified she was a dual diagnosis counselor at Recovery Services of
Northwest Ohio (“Recovery”), working in both mental health and substance use
diagnosis and care.
{¶ 79} In September 2022, Sinn completed an assessment with father; mental
health counseling and substance use counseling IOP were recommended. Father attended
three IOP groups (on November 23, December 5 and 6, 2022), and three individual
sessions (on September 28, November 22 and December 12, 2022). He cancelled or
failed to appear for numerous appointments. Sinn explained IOP group at Recovery
meets three times per week for three months, and individual counseling sessions are
weekly.
{¶ 80} On January 23, 2023, father was unsuccessfully discharged from Recovery
due to his failure to engage.
18. {¶ 81} On May 4, 2023, an updated assessment was completed for father and
individual therapy, medication service, case management service and IOP were
recommended. Sinn noted father’s participation or lack thereof at Recovery during 2023:
Individual counseling - no-show or cancelled: May 10, 15, June 1, July 13,
August 1, 21, 28 and 31;
IOP group - no-show or cancelled: May 11, 15, 17, 18, 22, 24, 25, 30, 31,
June 1, August 7 and 9;
Attended individual sessions on May 15 and August 2:
Kept appointments with physician service on May 25 and August 29;
No-show/cancelled with physician service on August 1 and 22;
Urinalysis screens completed on August 2, 3 and 8;
No-show for urinalysis screen on August 22; and,
Attended psychiatric evaluation on August 8.
{¶ 82} On September 12, 2023, another updated assessment was completed for
father, and residential level of care and medicated assisted treatment were recommended.
{¶ 83} On September 27, 2023, father attended his last session at Recovery, and
was subsequently discharged from Recovery.
GAL Kylee Towne, Esquire
{¶ 84} Towne testified she was the child’s GAL throughout the pendency of this
case, and she spoke with numerous people involved with the case. She was not able to
observe the parents interact with the child, and the court relieved her of this duty.
19. Father
{¶ 85} Towne attempted a home visit at father’s house, but father was not there
and the lady who answered the door would not let Towne into the house. It was very
difficult for Towne to speak with the lady, as the lady was mistrustful of Towne and her
co-worker. Father called Towne later and said he was not in a relationship with the lady,
she was just a very good friend. Towne did not reschedule the home visit because father
did not know when he would be home, as “he was kind of going back and forth between
this job he was looking at, he didn’t have reliable transportation. Then he was staying in
Angola for a little while, there was some conversation about him trying to reach out to
another son that he has . . . so there was [sic] just some other underlying things that
[father] was working through[.]”
{¶ 86} Towne observed that at the beginning of the case, father could not
understand why the child was removed, why the agency was involved or why there was a
case plan. Father felt he was being singled out or picked on. More recently, Towne
thought that father had grown a lot and took some accountability for his part in the
situation.
{¶ 87} Towne noted that father had many opportunities for treatment, counseling
and FIC, he understood the case plan and what he needed to do to get the child back, but
he had a pattern of getting clean for a little while, then falling back into his addiction and
making excuses. Towne believed father prioritized things above his counseling or
20. staying clean. Towne thought it was just recently that father decided he wanted help and
took his services seriously.
{¶ 88} Towne was concerned that when father was discharged from Midwest in
late November 2023, things did not end well, as Midwest tried to reach father and he
failed to respond. Towne noted that father indicated there was no lapse in treatment
between Midwest and Team, but she was not able to confirm this. Towne appreciated
that father liked Team better, but she thought he needed continuity of care, rather than
transitioning from one facility to another.
{¶ 89} Another concern was father’s relationship with the child. Towne noted
while the child lived with aunt, he was in contact with father, but the contact was not
always appropriate, and sometimes there would be escalated behaviors from the child.
Towne recalled at the beginning of this case, father had some issues with discipline and
felt he was sometimes inconsistent in his discipline of the child, which would result in
more outbursts and more behaviors. As the case progressed, there was a lack of contact
between father and child, so family counseling was needed, but first father and child
needed to be in a place to participate in individual counseling. Towne thought the child
needed to work through his trauma so he could open up and be more receptive to
reunification counseling with father, as the child had a lot of anger towards father. In
addition, father needed to complete parenting classes.
21. {¶ 90} Towne’s office tried to reach out to father many times, but he hardly
responded. Towne’s last contact with father was in late November 2023, and prior to
that, she spoke to him in June 2023.
{¶ 91} Towne observed the child at aunt’s house and the foster home, and talked
with him while he was at JDC. Towne witnessed a lot of growth in the child during her
time as GAL, but also a lot of regression. When the case started, the child was 12, and
was a typical teenage boy in many ways, but his trauma impacted his daily life, and his
strained relationships with his parents were difficult for him.
{¶ 92} Towne believed the child was very frustrated because he felt father chose
drugs over him and he did not think father would get help. Towne believed the child and
father previously had a bond, but it was now significantly strained. The child thought the
case was still going on due to father’s failure to follow through with what he needed to do
to make progress in the case plan, so the child blamed father for the situation.
{¶ 93} The child had been angry and had outbursts, but he was using coping skills
to properly manage those. In the last month or so, after a medication switch, there was a
remarkable improvement in the child’s outbursts and his ability to articulate, instead of
reacting impulsively.
22. Permanent Custody - Wishes and Opinions
{¶ 94} The child expressed his wishes to Towne, which were that he would rather
live at a stranger’s house than ever be placed with mother again. When asked about
father, the child kind of chuckled and said father was not going to be in a position to have
him anytime soon. The child was very clear that he never wanted to speak to mother
again and did not want contact with father at this time.
{¶ 95} Towne believed the child needed a legally secured permanent placement
because drugs have been an ongoing issue with father, and although father started
treatment in October, due to the level, nature and amount of time of his drug use, he
needed to have a longer period of sobriety. Father also needed to leave treatment, which
he said would be in March 2024, and transition into the community to do IOP.
{¶ 96} Towne testified that five family placements were explored, but none were
suitable. The child’s sister recently expressed interest again in having the child placed
with her. Towne observed, however, that sister was very young at 19, she did not own or
rent a home, and she lived with her ex-stepmom. Towne did not know if the sister’s ex-
stepmother was an appropriate place for the child.
{¶ 97} If the child were placed with father at this time, Towne believed the child’s
anger outburst would increase, and he would have a very strong reaction, not a positive
one.
{¶ 98} Towne opined the child could not be placed with either parent within a
reasonable time of the hearing, the parents showed an unwillingness to provide an
23. adequate permanent home for the child, the parents failed to substantially remedy the
conditions which caused the child’s removal, despite the agency’s efforts to assist father
to remedy the problems which caused the child’s removal.
{¶ 99} Towne observed that now that father has made progress with his drug use,
it has been very difficult from the child’s perspective, because “he’s faced with the fact
that dad[’]s finally starting to try, and it’s really scary to hold on to hope for what that
might look like. . . . [The child] struggles with the unknown anyways, and so will dad get
it together? . . . Or will dad be back to how it was?”
{¶ 100} Towne observed that when you are the child’s age of 13, “you don't have
the ability to conceptualize the future, everything is right now, the impact that it has on
him is right now. . . . A year to him is a lifetime, he doesn’t have the ability to think
through future and what even tomorrow could bring.” Towne opined if the case would be
left open to continue on, it would “really impact[] [the child], and what he is even able to
think of for the future.”
{¶ 101} Towne opined if permanent custody of the child was awarded to the
agency, “this will allow for [the child] to stop getting his hopes up, and to stop being
disappointed and to know that this is his future, and here’s the path forward.” Towne
further opined “at this time [father’s] needs are so starkly different from what [the child]
needs that I don’t believe there is the ability to reunify. . . [or] that would be in [the
child’s] best interest.”
24. {¶ 102} Towne further opined that it was in the child’s best interest for both
parents to have their parental rights terminated, and for the agency to be granted
permanent custody of the child.
Counselor Jana Richards
{¶ 103} Richards testified she worked at Shalom as a counselor, she has her LPC
license, and she used to supervise visitations. She first met father at parenting education
classes when he was referred by probation.
{¶ 104} Both individual and group parenting classes were offered at Shalom,
which focused on love, affection, discipline, relationships, dating and making good
choices in friends. Classes were held weekly, for one hour, and had to be done in
succession, as classes built on each other. If three or more classes were missed, the
parent must restart the program. To complete the program, a parent must typically attend
10 classes.
{¶ 105} Father attended five individual classes, in August and September 2022,
and was very engaged and forthcoming about his interactions with the child. However,
father cancelled or did not show for many classes, so he did not complete the program.
{¶ 106} Father was referred for parenting classes by the agency, and had to start
over. He was given ample opportunities to complete his classes, but he either cancelled
or did not show a total of 11 times. He never attended classes, so he did not complete the
program.
25. {¶ 107} Father was also referred, in January 2023, to Shalom for supervised visits
with the child. To start the process, the parent must complete orientation paperwork, then
go into Shalom with the GAL to sign forms. Father eventually completed orientation,
after he cancelled a few times. Two supervised visits were held between father and the
child on May 13 and June 9, 2023. Father cancelled or did not show up to three visits
scheduled for May 30, June 28 and July 12, 2023.
{¶ 108} On July 13, 2023, Richardson authored a termination of services note to
father, due to his multiple cancellations and no-shows.
Juvenile Court Diversion Officer Gary Mohre
{¶ 109} Mohre testified he was employed by juvenile court as a diversion officer,
and was familiar with the child, who had been on diversion for about four months. At
that time, the child lived with father, father always brought the child in for appointments,
and it seemed to Mohre that father interacted pretty well with the child. The child then
had some incidents at school, which led to probation, so John Karacson took over as the
child’s supervising officer. On August 24, 2023, while the child was on probation,
Mohre received the following voicemail:
This is [father], can you give me a call please. . . .I’d like to talk to you
because I can’t talk to John, quite honestly I think he’s an asshole. You can
tell he’s a full[-]blown fucking alcoholic just by his fucking skin tone and
his face. He’s a complete asshole when he tries to talk to me. And then
I’m paying child support and I’m not even on the approval list to see my
26. son, and I get humiliated in court yesterday, cause she asked me if I got
anything to say and I say no because no one will fucking listen to me from
the beginning why do they want to listen to me now. They got [the child]
on like five . . . different medications, he was on two . . . before he went to
my [aunt’s] originally. Now they have him on . . . [one medicine] . . .which
can have the opposite affect and make you have suicidal thoughts and shit,
which he had. You know I tried to say something from the very beginning
but on one wanted to listen to me and all the allegations from child services
were false, but I took the fucking drug screen, and the drug screen come
back bad, and I told them upfront about everything, it was right after my
dad died. You know they came a couple weeks ago, tested me, right after a
year of my dad’s one year, I was alone, yeah I fucked up. But other than
that I did pretty fucking good and I ain’t touched a bottle or nothing in
almost five . . . months since rehab, and I’m pretty damn proud of myself.
I’ve had one mistake but if that’s all they got on me as a parent, they need
to give me my kid back. But anyway I’m paying child support and
everything else, and I didn’t even know I could go visit my son, so I looked
stupid in court yesterday, cause nobody told me. Um, I told them and child
services about him wanting to commit suicide because I was on the phone
with him. And, uh, with the foster lady one day she just sat there on the
phone and didn’t say shit. Then I call [sic] and leave Kelsey a message to
27. tell her all these things and she called me back . . . days later after [the
child’s] already in jail for trying to walk out in front of a car, like I’m not
the problem. Um, I want some help, some actual help, someone that
actually gonna work with me to get my fucking son home, because child
services is overwhelmed. Kelsey’s workload so full she don’t [sic], they
don’t even hardly come to my house. I sit there every single day, all day
long before I go to work. I still have a job five . . . months, I’m still kicking
some ass, I’m making a lot of headway at talking to my other son from my
ex-wife from Fort Wayne, I’m taking care of my warrants, I went to court,
like I need help to get my damn kid home and at least interact with him so I
can try and save him before he’s institutionalized. Starting to talk like a
thug, trying to stand up for himself, because he’s being bullied in there, and
their [sic] threatening to kill him.
{¶ 110} Mohre called father and told him the message was inappropriate; father
apologized and said he also needed to apologize to Karacson.
Mother
{¶ 111} Mother testified that she had full custody of the child when he was
removed from her home on December 2, 2020. Prior to that, she said the child had only
seen father since July 2020, due to father’s drug abuse. Mother testified that father was
granted custody of the child in March 2022, and before that, she believed the child was a
28. ward of the state of Indiana. She said it was not in the child’s best interest to reunify with
father.
{¶ 112} Mother consented to the termination of her parental rights, and to a
finding of permanent custody to the agency, as she said it was in the child’s best interest.
Father
Direct Examination
{¶ 113} Father testified that he had full custody of the child until 2019ish. He
explained he was in a motorcycle accident in 2016 or 2017, had eight months of therapy
to learn how to walk again, got divorced, and in 2019, the child was with mother for a
year. In 2020, father lived at a home in Edon, Ohio, in 2020, which was owned by
landlords “who [father had] a contract with.” He received a called to pick up the child,
“and they told me what happened and I fell to my knees and then I had to deal with child
services with Indiana for two . . . years.”
Father described his bond with the child before the child was removed in 2022 as
really tight, like when I had full custody of him when I was married, cause I
had full custody of him at three [years old], you know hired a [GAL], went
and got married in Mexico, came back, and the [GAL] sided with me then,
and . . . I had custody of him all throughout . . . [The child] would come to
the house in women’s clothes . . . I took him to all his neurological stuff, all
his appointments, sleep studies, and if he had any problems in school, the
school would call me, and then I would talk to him on the phone, calm him
29. down, and then he would either go back to class or he would go to the
principal’s office and hang out there the rest of the day. Um, he was doing
really well actually, and I tried to keep him with [a doctor] . . . and those
medicines cause [that doctor had] been with him his whole life, but they
didn’t accept Ohio Medicaid obviously in Indiana, and I couldn’t afford the
medicine. Um, I was trying to find a psych doctor here but that’s not
something you can just call up and get, um, so some things, when this all
started it was actually kind of beneficial, some of the help I got, I needed.
But Mindy [the guidance counselor at Edon school] . . . bought him shoes,
uh got him a coat, helped us with food, stuff like that, because I lost my job,
cause I had to go get [the child] from school one day, because he was bad
again, and he got arrested and we went and picked him up from when he
originally got arrested, and he said they sat on him and held him down and
he was kicking and screaming so he got charged with uh disorderly conduct
. . . And I told them . . . he doesn’t like to be touched . . . So I mean it’s
been a difficult process, transition. And Edon wouldn’t let him go to public
school because of all his stuff in Indiana so he had to go to IEC and he
hated it. And when [the child] doesn’t like something, he’s difficult. . .
[H]e’s discouraged by me right now, so he’s not real happy right now.
{¶ 114} In 2022, when the agency became involved, father admitted to the
investigator that he “had a problem from opioids from [the] motorcycle accident.” Father
30. said the child “stated there was no abuse.” Father said he was employed at that time “in
AJ.”
{¶ 115} Upon receiving the results of father’s drug test, the agency told father the
child had to be removed from the home as the “test came back [positive],” which he
“figured it would.” Father was “surprised with how . . . they did it. It was just
immediate.” He knew he “was going to be behind the eight … ball on that because [he]
didn’t really have anybody, and [his] family on [his] dad’s side is mostly old, and [his]
mom don’t even want - [his] sister and her kids living there, let alone [father’s]” Father
“called Barry, [he] got Barry to take him um for a weekend, and then he went to
[aunt’s.]”
{¶ 116} In March of 2023, father entered in-patient at Midwest Recovery
(“Midwest”) but was “kind of being pushed in a way because Berry and Lacey [the
landlords] were fed up and I was maybe going to lose my house . . . so I agreed to go.”
He left Midwest early, after 25 or 26 days, because he missed his fiancée. Leaving,
however, “was just a huge mistake because I made everything worse. The only good
thing I did was got a job, paid some bills, got my taxes done so I don’t get in trouble . . .
then come to find out . . . those were a mess because my ex-wife claimed [the child] an
extra year and she shouldn’t have and she forged my name[.]”
{¶ 117} Father further chronicled his struggles:
I . . . found out . . . that he was abused, it really messed me up, especially if
you knew all the details. . . [T]hen last July . . . 25th, I was ejected from my
31. car and broke five . . . ribs, fractured my neck, I was in the hospital for a
week in intensive care, and then my dad came home a week and a half later,
he died. And then they took my son after that . . . my drug screens were
dirty so. . . I felt like I was living my life through [the child], like cause you
know my son was abused, I was abused, the same way when I was a kid[.]
{¶ 118} Father explained that it was difficult for the agency and providers
to contact him, and he missed appointments because
I just didn’t do a very good job, um I cancelled a lot, um uh sometimes that
stuff over the phone, I live right by the grain bins in Edon so the reception’s
not the best, but a lot of times, I’d get everyone’s voicemails the next day,
you know my phone would restart or cause it would just shut off by itself,
it’s a government phone, it’s a free phone. . . I knew I needed the help, I
just, when you’re in active addiction, I mean you don’t . . . want to do a
whole lot . . . I was embarrassed by what I was doing, I didn’t want to lose
[the child] but I didn’t know how to get him back either. Kind of felt like
the deck was stacked. . . . I went a period without a vehicle until my whole
family got together and chipped in money and got me a vehicle, and then
there was a time where the starter went out, and it was just money pit, the
truck that I bought, we just ended up putting a crap ton of money in it. Um,
sometimes things just didn’t work out too for . . . no excuses[,] just general
reason. . . . I think we - in my honest opinion looking back on it all now,
32. obviously it’s my fault for most of it, but I think we both [he and the
agency] could have done a better job.
{¶ 119} On October 8, 2023, father tried to take his own life by taking pills, but he
woke up the next day and decided to “go to rehab and get it right.” Father said he
allowed a family stay at his house in October 2023, while he was gone.
{¶ 120} Father went to Arrowhead and detoxed “with nothing.. . . [and] found out
that there was Fentanyl in the meth, which really upset me. I took that personal cause I
died once.” After detoxing, father had to get Medicaid before Midwest would accept
him, so he called the agency and was provided with emergency Medicaid for 90 days. He
went to the residential program “that day, um, at Midwest, finally got a certificate. It’s
the first time I ever gotten one, never finished anything I started. So that was a big deal
for me.” At residential, “they . . . take your phone. . . So that’s why I wasn’t able to
return any of the calls that were talked about earlier in October cause I didn’t have my
phone.”
{¶ 121} After 30 days, which was mid-November 2023, father left residential and
went to Midwest’s housing program, but he “just didn’t like the set up, the program at all
. . . it was only three . . . hours a day.” Father left and went to Team Recovery (“Team”)
for in-patient treatment. He had been in recovery for 56 days, his mindset changed, as
well as
[w]hat I want, and what I don’t want, and what I don’t want to lose. Um, I
had to realize that holding all these resentments in my own childhood and
33. my own stuff that I went through in my life was only making things worse
so not taking accountability for it was not only making my life worse, but
watching [the child] be fine too is really getting to me, and bothering me
that I wasn’t there for him like I should have been, and . . . I’m sitting down
whining about not having a dad, but yet [the child] don’t have his dad. . . .
I’ve also been able to accept the fact that my father[’]s gone and he’s not
going to be able to hold my hand no more and I got to grow up. . . I mean
my dad was my best friend. If anything went wrong, I’d just call him. I
mean hell I can’t even get my own mom to take my kid, you know, but yet
she wants to live in my house . . . All I ever had in my life was my dad.
{¶ 122} Father said he was in phase two of Team’s program; he was in PHP4 and
went to group sessions and classes like anger management, self-love and financial stress.
If you missed two groups or failed a drug screen, you got kicked out. He was drug
screened Monday, Wednesday, Friday and a random day, and “get[s] breathalyzed.”
During the week, father had free time after 3:00 p.m., so he could get at a job, but he did
not have one; he said he applied for jobs. Father shared he was doing great, he was
where he needed to be, and it was the best decision he ever made.
{¶ 123} Father said he took accountability for his actions and did not want to lose
rights to his son right in the middle of trying to better his life. Father explained that
4 There is no indication in the record what PHP means, however our research shows it could stand for partial hospitalization program.
34. drugs have never been a part of my life until . . . after my motorcycle
accident, and it’s not the life . . . I want to live and I’m really trying to be
done. . . . I’m on the sublocade shot which you get once a month, it’s in my
belly. Um, you know I can go the bathroom for you anytime you want a
drug screen[.] . . . I just wish I got it right the first time, but it don’t work
that way cause I lost more than just [the child]. I mean I lost a lot of stuff,
my life, I’m not talking material stuff, I’m talking people, family, this is my
last chance . . . with my immediate family on my dad’s side. Sucks when
someone won’t even let you in your own home and it’s your family.
{¶ 124} Father testified he received both mental health and substance abuse
counseling at Team and will graduate from the program in March 2024. He said he was
offered a job at Team, so he had to get his COCA, stay sober for at least five months, and
go to meetings at least twice a week. He was also working on getting a sponsor so he
could do the twelve-step program. Father did not take parenting classes at Team, but he
said he was “getting enrolled in them. . . getting information on them,” and for two
months he will get paid “up to. . . $350 just to show up and go to the classes and that sort
of thing, you get Walmart cards, all kinds of stuff.”
Cross-Examination
{¶ 125} Father was asked if he said he bought a house, and he responded, “Uh, we
started land contract, and then I didn’t have the credit to buy it so I’m just renting it.” He
was also asked how he was paying for the apartment and he said, “Um, my-actually I
35. have some um, I was good until I left, and Barry said that, to make sure I got this one
right and make it count, so everything’s good so far.” Later father testified that the
utilities were on in his house because a cousin paid $1,600 on the electric bill. Father
said he had a water bill, but he thought the people who stayed at the house in October
2023, paid it.
{¶ 126} Father was asked if he dealt with CPS for two years through Indiana, and
he replied, “Yes. . . We got tested, she actually drove to my house, um she5 rent a car and
came to my house and I had to deal with them for two years, we all did, all three of us
dads. . . .[The child], his sister, and his youngest brother who then was two.” Because of
mother, “[w]e all had to be . . . monitored by child service even though we didn’t do
anything. We all had to test once a month. . . Anything they asked, we had to do.”
{¶ 127} When asked about his testimony that he was not surprised at the results of
the agency’s drug screen, father stated, “Oh, no I was honest about everything upfront. I
told her that-I told her everything about my motorcycle accident and everything. She
even told Barry and my aunt that I was more honest than I had to be.”
{¶ 128} Father was questioned about the speed letters that caseworker Fruchey left
on his door, and he admitted he received most of them, “[b]ut I let her know a lot of times
when I had been working these last several months though from May that [sic] I probably
be in Auburn [sic] and I gave the address at [ex-fiancée’s] house too, and she said that if
5 There is no indication in the record who “she” is.
36. she had to, she could try there. [sic] Cause after work I always went to [ex-fiancée’s],
stayed and went home in the morning.
{¶ 129} Father was asked if his ex-fiancée was on the case plan; he did not think
so. He was then asked, “So Ms. Fruchey would have no specific need to go see [ex-
fiancée]?” and father replied, “No, I just sort of sent back I’m there. I was trying to do
that so she’d know, if I wasn’t home, that’s where I’d be. If she wanted to test me or do a
visit or whatever. That’s the whole purpose of why I gave her address.”
{¶ 130} Father said he did not always call the caseworker when he received her
letters, although he had the agency’s contact information and knew the caseworker was
required to see him monthly. Father was asked what he meant when he testified that both
he and the agency could have done a better job, and he stated,
Well I think, I mean, I, there were sometimes where I was very upfront
with information, like maybe going to Auburn, I gave [ex-fiancée’s] phone
number even in case they couldn’t get ahold of me, um, yeah I wasn’t
always trying to run or hide. . . . Kelsey was out doing home visits
somewhere, and I called the office . . . and her, um, partner or whatever
answered the phone . . . and . . . I asked about the, uh, uh, shit what did I
ask about, uh, um, I asked about something, oh I was telling her that I asked
about visits at Shalom, because the Shalom lady . . . texted me back and
said “I don’t know, I’ll have to talk to your case worker.” And I never
heard anything back from her, and then I asked Kelsey about it, and she
37. said they put the referral back in, but they hadn’t heard anything back yet.
So I think maybe the lines got a little messed up there between all that, but
that’s more so what I was referring to.
{¶ 131} Father was questioned about not visiting with the child from January to
May 2023, and he said it was due to his drug use and
[c]ause [aunt] wouldn’t let me come over if I was using or anything of that.
She had to know for sure that I was clean or I couldn’t even be on the
property. She doesn’t mess around.6 She took care of me when I was
around [the child’s] age for a summer because I kept running away from
home and everything cause of my dad. He was mean. . . . My dad was
abusive in my childhood, so there-I want to take parenting classes and do
some of this other stuff that I signed up for personally, for me because I
don’t want to do things the way my dad did, because you can’t do things
like that now.
{¶ 132} Father was asked about what occurred in the hallway of the courthouse
after a delinquency hearing, and he said, “Yeah, he was, I could have been more
professional, I was kind of acting like how my dad would’ve me, but um yeah it was-it
was wrong.”
6 January to May 2023, the child was in a foster home, not in aunt’s home.
38. {¶ 133} When asked if he started to turn things around when he went to detox in
October 2023, father replied,
Yeah, cause [ex-fiancée] cut me out of her life completely. She came and
got the car she bought me, I was paying for and everything, just done. And
that, that hit me pretty hard. . . And then just [the child] and going here and
going there. . . the day I went to that appointment [at Marsh,] I didn’t know
I had a protective order, and I got there, and he’s got a bloody hand and
he’s telling me to hurry up and he wants to get in the car and me to take off
. . . [H]e said he put his hand through a window. Then I calmed him down
and they thanked me for that, then I talked to them for a minute, then I left
cause I didn’t want to get arrested. I had no idea until I drove an hour and I
made the appointment . . . days before I even went . . . cause [the child]
wanted to see me so he kept calling me.
{¶ 134} Father was asked about his warrants and he explained there was a warrant
in Auburn “for missing court, or for um shoplifting charge at Walmart actually [from
December 2022,] . . . cause I was in treatment, so I didn’t go to the court date, they were
aware of that, I already talked to them on the phone, so um, I went there, I sat in the jail
cell deal for a couple hours till they took all my information.” He said after he was
released from jail, he went to Fort Wayne where there was a body attachment to ensure
that he would appear at court for child support for his other son, Ja. Father said he had
39. joint custody of nine-year old Ja. and talked to Ja. on the phone, “that’s it, and [Ja.’s mom
is] fully aware of where I’m at and what I’m doing because I don’t lie to her.”
{¶ 135} Father said he cleared up the warrant in probably June or July 2023,
“[c]ause my sister called the cops in Auburn and told them I was at [ex-fiancée’s].” After
father left his ex-fiancee’s house one day, “15 minutes later, [the police were] searching
[her] house, cause . . . there was a tip that I was there. My sister will try to do anything
she can to railroad me.”
{¶ 136} Father was questioned about a warrant that was issued in November 2023,
and he said it “would be from the same thing because I missed the court date, yeah. Um
Midwest faxed everything to them though, so as far as I know I don’t.”
{¶ 137} When asked he attended the child’s recent delinquency hearings, father
responded, “I wasn’t able to get to the last one because I was in treatment, but I’m pretty
sure I’ve made all the rest of them, all but one.”
{¶ 138} Father was asked if he knew where the child was placed, and he replied
that “Kelsey said it’s pretty close to where I’m at, it’s in Swanton and they got a lot of
cool stuff, and he’s doing pretty good.”
{¶ 139} Father was asked if he provided names for placement of the child, he said,
I talked to my mom, that was it, I knew I was wasting my breath[], and my
sister[’s] not an option because she’s done nothing but try to sabotage it the
whole time anyway. Like on the voice message, the reason I had to take
care of-my uncle volunteered to help me take care of my warrants was
40. because my sister called me a facebook message to the agency [sic] and
said they needed to look my name up in Indiana and see I had more and
some blah blah blah blah blah. . . I don’t know what my sister’s mindset has
been but she’s totally went off on her own little way since my dad’s passed.
{¶ 140} Father was asked about his testimony that his mom wanted to move into
his house, and he responded, “She’s divorced . . . [s]he doesn’t want to live there
anymore and my sister’s still there with her three kids, and she wants to stay in my house
but yet she’s had nothing to do with my life, ever really.”
{¶ 141} Father said he has been clean for 56 days, and “I haven’t drank since April
[2023], but drugs . . . 56 days is all. Alcohol since April.”
Court Inquiry
{¶ 142} Father was asked what his diagnosis was for mental health counseling,
and he responded, “[t]hey said I have PTSD and I have anxiety, and some kind of
depression . . . But nothing I can’t fix with counseling, because it mainly sterns from my
childhood, just like [the child’s]. We have a lot of the same things that happened to us.”
{¶ 143} Father started treating with a counselor, Tim, at Team on November 27,
2023. Father said “Judge Wagner comes once a month to . . . help you get your license,
or birth certificates, or fines that need paid, stuff like that. They have all kinds of stuff
that they offer to help you.”
{¶ 144} Father was asked if he paid his child support order for the child, and he
replied,
41. I don’t think they ended up taking any out, when I was at Midwest we did
ask for it to be put on hold because I was in treatment, but I do know that I
turned it in and I also told the lady on the phone, urn, because they had my
old phone number. So, I actually called them for the court date that day I
was scheduled for court for that, and we got it done, and I gave them all the
information they needed for Phil’s [gas station where father had worked],
so I don't know. I believe I had a piece of mail before I left too that said I
was behind like three hundred . . . bucks and they were going to hold my
income tax or something but I don’t know why they weren’t taking it out.
Case Manager Jeff Miller
{¶ 145} Miller testified he was father’s case manager at Team, and he counseled
father. Miller said father was in phase one of treatment, he was in PHP along with
mental health groups, which were held four days a week. Father was housed in a Team
facility, a separate entity from the outpatient center, where children were allowed to visit.
Miller saw father every day, and father was drug-tested at least three times a week.
Father could sign up for groups, which were appropriate to address his problems.
{¶ 146} Miller testified father “got to use on November [17], um from what I
understand he was unhappy” with the housing and treatment at Midwest, so he was
picked up and driven to Team’s facility. Father was at Team for three weeks, he put the
work in, and he was compliant as far as urine screens and group attendance. Miller
noticed father was a lot more alert now than he was when he arrived at the center.
42. Juvenile Probation Officer John Karacson
{¶ 147} Karacson testified he was employed by the juvenile court. In June 2022,
the child was placed on diversion, and Karacson was the diversion officer at that time.
When Karacson initially met with father and child, they were cussing at each other, back
and forth. Karacson testified that father could work on interactions with the child
through parent project and parenting classes.
{¶ 148} While the child was on diversion, Karacson had limited contact with
father. Yet, Karacson ensured that father took the child to appointments with Shalom.
Karacson also referred father for parent project, but it was challenging trying to get father
enrolled. Karacson worked with the child through August or September 2022, at which
time the child was transitioned to Officer Mohre because Karacson became a probation
officer.
{¶ 149} In December 2022, the child was placed on probation, so Karacson
became his probation officer. As a probation officer, he gave his cell number to families,
so they could contact him at all times, he conducted home, office, school and detention
visits with juveniles, he drove juveniles to appointments, and he was required to meet
with juveniles once a month. Karacson met with the child much more often than once a
month, because it was a tough case, and he had lunch with the child a couple of times.
{¶ 150} After the child was placed in the agency’s temporary custody, Karacson
had very limited contact with father, as Karacson focused his attention on the child’s
43. custodian, to provide assistance. Yet, father came into Karacson’s office to talk and seek
advise.
{¶ 151} The last time that Karacson saw father and child was in September or
October 2023, in the hallway after court; there was a lot of cursing between the two,
which was loud, so the whole courthouse could hear. Karacson believed the child, who
was already angry, heard testimony that father was not following through with his case
plan and was continuing to use drugs, which set the child off. Father had been given
opportunities to work on his interactions with the child, but he failed to do so.
{¶ 152} Karacson opined that father said the right things but did not do the right
things. Father still had a lot of work to do, even though over a year passed since the case
was filed. Karacson knew that father lost his dad, but the child needeed stability and
while father got better and there was an obligation to protect the child.
Permanent Custody Law
{¶ 153} A juvenile court’s decision in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,
2011-Ohio-4857, ¶ 11 (6th Dist.). “The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that the trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984). Furthermore, “[e]very reasonable presumption
must be made in favor of the judgment and the findings of facts [of the trial court].”
44. Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). Thus, a judgment supported by
some competent, credible evidence going to all essential elements of the case is not
against the manifest weight of the evidence. Id.; C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St.2d 279, syllabus (1978).
{¶ 154} The juvenile court may grant permanent custody of a child to a children
services agency if the court finds, by clear and convincing evidence, two statutory
prongs: (1) the existence of at least one of the four factors set forth in R.C.
2151.414(B)(1)(a) through (d); and (2) the child’s best interest is served by granting
permanent custody to the agency. In re A.H. at ¶ 12; R.C. 2151.353(A)(4). Clear and
convincing evidence requires proof which “produce[s] in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161
Ohio St. 469, paragraph three of the syllabus (1954).
{¶ 155} As to the first prong, R.C. 2151.414(B)(1)(a) provides that “the child
cannot be placed with either parent within a reasonable period of time or should not be
placed with either parent.” When making a finding under R.C. 2151.414(B)(1)(a), the
court must find, by clear and convincing evidence, that only one of the factors
enumerated in R.C. 2151.414(E) exists. In re A.H. at ¶ 15. Here, the court found R.C.
2151.414(E)(1), (2), (4), (7) and (12) applied, and those factors are:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child to
45. be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic . . . chemical dependency of the parent that is so severe that it
makes the parent unable to provide an adequate permanent home for the
child at the present time and, as anticipated, within one year after the court
holds the hearing pursuant to division (A) of this section . . . ;
...
(4) The 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;
(7) The parent has been convicted of or pleaded guilty to one of the
following:
46. (d) An offense under section . . . 2907.04, . . . of the Revised Code or under
an existing or former law of . . . any other state, . . . and the victim of the
offense is the child[.]
(12) The parent is incarcerated at the time of the filing of the motion for
permanent custody . . . of the child and will not be available to care for the
child for at least eighteen months after the filing of the motion for
permanent custody[.]
{¶ 156} As to the second prong, the best interest of the child, when making this
determination, R.C. 2151.414(D)(1) provides that 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 . . .;
(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
or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period . . .;
47. (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.
{¶ 157} Here, the court found that R.C. 2151.414(E)(7) applied.
Juvenile Court Decision
{¶ 158} On December 28, 2023, the court issued its judgment entry in which it
granted the agency’s motion for permanent custody of the child. In addition to the
foregoing testimony, the court made the following findings of fact and conclusion of law,
by clear convincing evidence.
{¶ 159} Father submitted to drug screens, but not regularly for unannounced
screens. He refused to submit to a screen on September 13, 2023; he told the caseworker
it would be positive. There were no screens for father for: December 2022; February
2023; April 2023; June 2023; July 2023; October 2023 and November 2023, despite three
attempts per month by the agency. This was contrary to the case plan and screening
process. Father was non-compliant with the drug screen case plan requirement.
{¶ 160} Father failed to provide updated contact information to the agency, and at
times at court hearings, he provided excuses as to why the agency could not locate him,
and he often stated that he was waiting for them at his house. Father’s testimony was not
substantiated by the evidence.
48. {¶ 161} Father testified he had a rental home and his landlord was supporting him
in his sobriety. The landlord did not testify so the court was uncertain as to the truth of
father’s housing situation.
{¶ 162} The only witness presented on behalf of father was father, with no
supporting verification of his testimony. Based upon the testimony presented, the court
found father was not a credible witness.
{¶ 163} As part of the court-ordered case plan, father was to have monthly visits
with the caseworker. Agency workers had been inside of father’s home one time when
the initial investigation was held and two other times, in March and August 2023. Father
did not permit the agency in his home monthly, as required, and he did not permit the
GAL into his home at any time during this case.
{¶ 164} Father failed to make any progress on case plan requirements which
would have put him in a position to reunify with the child. The court noted father’s
significant drug abuse history, warrants and failure to appear for court hearings.
{¶ 165} Father had lied and been dishonest since the start of the proceedings, he
failed to engage with the child, or even inquire about the child’s care and well-being.
{¶ 166} Beginning in December 2022 and continuing throughout this case, the
agency contacted many relatives and possible kinship placements for the child, and the
options for placement have been exhausted.
{¶ 167} The court found the GAL complied with Sup.R. 48, and the court placed
significant weight on her recommendations as she conducted an independent
49. investigation and provided the court with information regarding the child. The GAL
testified and recommended it was in the child’s best interest to have the parents’ parental
rights terminated and to place the child into the custody of the agency. The court found
the GAL’s recommendations were in the best interest of the child.
First Prong of Permanent Custody Analysis
{¶ 168} The court found, by clear and convincing evidence, that R.C.
2151.414(B)(1)(a) applied, that the child cannot or should not be placed with either
parent within a reasonable time. The court relied on R.C. 2151.414(E)(1), (2), (4), (7)
and (12).
{¶ 169} The court further found the conditions which caused the child’s removal
from father’s home were drug use by the father and physical abuse allegations between
father and child. Father’s continued drug use was not remedied, and parenting education
was not completed to remedy the physical abuse issues. The agency made diligent efforts
to assist father to remedy these issues over the past year and provided a substantial
amount of resources to father. Father presented no verifiable evidence that he will
remain in treatment, that he will be successful in treating his addiction, that he will stay
sober or that he is capable of parenting the child absent the use of physical force and
abuse.
{¶ 170} The court found father showed a lack of commitment to the child by
repeatedly failing and at times refusing to engage in substance abuse treatment and other
requirements of the case plan, including parenting classes, and the court further found
50. each parent demonstrated a lack of commitment toward the child by showing an
unwillingness to provide an adequate permanent home for the child.
{¶ 171} The court found mother was incarcerated at Rockville Correctional
facility with the earliest release date being December 21, 2031. She was serving a
sentence for convictions of felony child exploitation and felony child molestation.
Second Prong of Permanent Custody Analysis
{¶ 172} As to the child’s best interest, the court considered the relevant factors in
R.C. 2151.414(D)(1)(a) through (e) in reaching its determination.
{¶ 173} The court determined the child had the maturity to express his wishes,
which were aligned with the GAL’s recommendations, the child had been out of his
home since May 2022, the agency exhausted all placement options, father had not visited
the child since June 2023, and the child needed stability and certainty as he matured.
{¶ 174} The court found in considering all the best interest factors that, by clear
and convincing evidence as presented at the hearing, the child cannot and should not be
placed with either parent within a reasonable time, due to the facts presented, and it was
in the best interest of the child that a grant of permanent custody be made to the agency.
Father’s Assignment of Error
{¶ 175} Father argues he received ineffective assistance of counsel due to his trial
counsel’s failure to file a bypass motion with the juvenile court. Father notes “[u]pon
arriving at the annual review . . . [ hearing,] there was a bypass motion filed by the
Agency to allow [him] to continue working the case plan to reunify with [the child],” but
51. the motion was orally withdrawn by the agency because the motion for permanent
custody was filed.
{¶ 176} Father argues “[u]pon motion by any party, not just by motion of the
Agency, the court may grant a six[-]month extension of agency temporary custody. Juv.
Rule 14.7 O.R.C. § 2151.415(D)(1)[, which] . . . is also called a bypass.”
{¶ 177} Father further argues that but for counsel’s error, the outcome of the case
would have been different, as “[w]ithout the bypass motion . . . the Court was only
considering whether to grant permanent custody of [the child] to the Agency and whether
to terminate [father’s] parental rights.” Father contends if a bypass motion had been
filed, “the Court could have allowed [him] to continue working the case plan since he
was taking steps towards recovery by being at Toledo Recovery8 since November 27,
2023, and he was still in treatment at the time the final hearings occurred.” Father
submits he was “also taking classes to help improve himself and his parenting while he
was in Toledo Recovery. Id. [sic] [He] had struggled for a long time to seek help
continuously for his substance abuse, but he had been making substantial progress, and a
7 We note father’s reference to Juv.R. 14, does not comply with Sixth Dist.Loc.R. 10(C), which states in pertinent part that “legal authorities . . . must include . . . the . . . paragraph number where the point of law is found.” (Emphasis added.) Juv.R. 14 contains three paragraphs. It is the burden of father, not this court, to demonstrate his assigned error with arguments that are supported by citations to legal authorities. Speller v. Toledo Pub. Schools Bd. of Edn., 2017-Ohio-7994, ¶ 56 (6th Dist.). Nevertheless, we will search through Juv.R. 14 to determine if there is support for father’s contention. 8 There is no reference to or evidence of Toledo Recovery in the record.
52. bypass motion would have created a reasonable probability that the outcome would have
been different and permanent custody may not have been awarded to the Agency at that
time.”
Standard of Review
{¶ 178} To establish ineffective assistance of counsel in a parental rights
termination case, the parent must prove the same elements as those in criminal cases. See
In re G.P., 2018-Ohio-4584, ¶ 76 (6th Dist.), and In re J.R., 2023-Ohio-1920, ¶ 39 (6th
Dist.). Appellant must show “(1) deficient performance of counsel, i.e., performance
falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel's errors, the proceeding’s result would have
been different.” State v. Hale, 2008-Ohio-3426, ¶ 204, citing Strickland v. Washington,
466 U.S. 668, 687-88 (1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” State v. Sanders, 2002-Ohio-350.
Law
{¶ 179} R.C. 2151.415(D)(1) states, in relevant part, “[i]f an agency . . . requests
the court to grant an extension of temporary custody for a period of up to six months, the
agency shall include in the motion an explanation[.]” (Emphasis added.)
{¶ 180} Juv.R. 14 provides, in relevant part:
(C) Modification. The court, upon its own motion or that of any party,
shall conduct a hearing with notice to all parties to determine whether any
order issued should be modified or terminated, or whether any other
53. dispositional order set forth in division (A) should be issued. The court
shall so modify or terminate any order in accordance with the best interest
Analysis
{¶ 181} Upon review, we find that R.C. 2151.415(D)(1) does not state that a
parent may file a request for an extension of temporary custody. See Matter of A.B.,
2023-Ohio-2679, ¶ 40 (5th Dist.), citing In the Matter of T.G., 2022-Ohio-1213, ¶ 68,
(5th Dist.), citing In re A.C.B., 2017-Ohio-4127, ¶ 34 (11th Dist.). We also find that
Juv.R. 14(C) may allow a parent to file a motion to extend temporary custody of a child.
{¶ 182} If a six-month extension were granted, father asserts a reasonable
probability exists that the result of the juvenile court proceedings would have been
different.
{¶ 183} Father argues that he struggled for a long time to seek help continuously
for his substance abuse. The evidence in the record supports father’s argument. When
father was drug-screened on August 30, 2022, he tested positive for meth and amph, and
throughout this case he constantly tested positive for drugs. Although he was afforded
numerous opportunities to participate in substance abuse treatment, father consistently
failed to engage in services or was unsuccessfully discharged from services. Then,
shortly after the agency filed its motion for permanent custody of the child, and two
months before the hearing, father again engaged in drug treatment services.
54. {¶ 184} Meanwhile, the child was in and out of multiple placements and schools,
had ups and downs with his behaviors, and experienced disappointment after
disappointment due to father’s actions and inactions. The child was offered many
services during this case to assist him with his trauma and behaviors, and he had a team
of people to help and guide him, including aunt, caseworker Fruchey, GAL Towne,
therapists, diversion officer Mohre, probation officer Karacsons, group home leaders, and
more recently, his sister. The child had lived in a group home for about six weeks before
the permanent custody hearing, where he seemed comfortable and happy and was well-
liked. Long-term placement for the child was available at the group home.
{¶ 185} At the hearing, GAL Towne recommended that the parents’ parental
rights be terminated, and the child be placed into agency’s custody, as that was in the
child’s best interest. The child agreed with the GAL, as he did not want a relationship
with father at that time. Caseworker Fruchey opined that neither parent was an
{¶ 186} The juvenile court, in its comprehensive, well-reasoned decision found
that father was not a credible witness at the hearing, he failed to make any progress on his
case plan requirements, he was dishonest since the start of the case, he failed to visit with
the child or even inquire about the child’s care and well-being. The court placed
significant weight on the GAL’s recommendations, and found the child had the maturity
to express his wishes, which were consistent with those of the GAL. The court found it
was in the child’s best interest for custody to be awarded to the agency.
55. Conclusion
{¶ 187} In light of the foregoing, we conclude father failed to show that a
reasonable probability exists that the decision of the juvenile court regarding the
permanent custody motion would have been different, such that after six months, the
court would have found that it was in the child’s best interest to reunify with father.
Father has not demonstrated that his trial counsel was ineffective by not filing a bypass
motion. Accordingly, father’s assignment of error is not well-taken.
{¶ 188} On consideration whereof, the judgment of the Williams County Court of
Common Pleas, Juvenile Division, is affirmed. Father is ordered to pay the costs of this
appeal pursuant to App.R. 24.
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. ____________________________ Myron C. Duhart, 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/.
56.
Related
Cite This Page — Counsel Stack
2024 Ohio 2333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jk-ohioctapp-2024.