In re J.R.

2018 Ohio 2556

Opinion

[Cite as In re J.R., 2018-Ohio-2556.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

IN THE MATTER OF: : : : Appellate Case No. 2017-CA-44 J.R. : : Trial Court Case No. N46318 : : (Appeal from Common Pleas Court, : Juvenile Division) : :

...........

OPINION

Rendered on the 29th day of June, 2018.

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Greene County Prosecutor’s Office, 55 Greene Street, 1st Floor, Xenia, Ohio 45385 Attorney for Appellee - Greene County Children Services

CARL BRYAN, Atty. Reg. No. 0086838, 120 West Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Appellant - Father

............. -2-

FROELICH, J.

{¶ 1} Father appeals from a judgment of the Greene County Court of Common

Pleas, Juvenile Division, which granted permanent custody of his son, J.R., to Greene

County Children Services (GCCS). For the following reasons, the judgment of the trial

court will be affirmed.

{¶ 2} J.R., then age 12, was placed in the temporary custody of GCCS in March

2015, due to “the family’s pattern of hazardous home conditions,” which included

cockroach and bed bug infestations, lack of running water, holes in the floor, carbon

monoxide leaking from a water heater, and faulty wiring. J.R. had previously been living

with his paternal grandparents at the grandparents’ home. J.R. was placed in foster

care, and a guardian ad litem was appointed. Case plans were developed for both

parents.

{¶ 3} In September 2016, after two extensions of temporary custody, GCCS filed

a motion for permanent custody of J.R. The motion asserted that Mother had abandoned

J.R., that J.R. could not be placed with either parent within a reasonable time, that J.R.

had been in GCCS’s temporary custody for 12 or more months of a consecutive 22-month

period, and that it was in J.R.’s best interest to grant permanent custody to GCCS. The

trial court conducted a hearing on the motion and, on July 25, 2017, the court granted

GCCS’s motion for permanent custody of J.R.

{¶ 4} Father appeals from the trial court’s judgment, raising three assignments of

error.1

1 Father was represented by counsel at trial. Mother was represented by counsel at trial, but she participated to a very limited extent, and she is not a party to this appeal. -3-

Standard of Review

{¶ 5} R.C. 2151.414(B) establishes a two-part test for courts to apply when

determining a motion for permanent custody of a child to a public children services

agency. In relevant part, the statute requires the court to find, by clear and convincing

evidence, that: (1) granting permanent custody of the child to the agency is in the best

interest of the child; and (2) either the child (a) cannot be placed with either parent within

a reasonable period of time or should not be placed with either parent if any one of the

factors in R.C. 2151.414(E) is present; (b) is abandoned; (c) is orphaned and no relatives

are able to take permanent custody of the child; or (d) has been in the temporary custody

of one or more public or private children services agencies for 12 or more months of a

consecutive 22-month period. R.C. 2151.414(B)(1); In re N.C., 2d Dist. Montgomery No.

26611, 2015-Ohio-2969, ¶ 13.

{¶ 6} R.C. 2151.414(D)(1) directs the trial court to consider all relevant factors

when determining the best interest of the child, including but not limited to: (a) the

interaction and interrelationship of the child with the child’s parents, relatives, foster

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

child, as expressed directly by the child or through the child’s guardian ad litem; (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; (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; and (e) whether any of the

factors in R.C. 2151.414(E)(7) through (11) are applicable. See also In re N.C. at ¶ 14. -4-

R.C. 2151.414(E)(7) through (11) include whether the parent has been convicted of any

of a number of listed offenses; whether the parent has repeatedly withheld medical

treatment or food; whether the parent has placed the child at substantial risk of harm two

or more times due to substance abuse and has rejected treatment two or more times or

refused to participate in treatment; whether the parent has abandoned the child; and

whether the parent has had parental rights previously terminated.

{¶ 7} All of the court’s findings must be supported by clear and convincing

evidence. R.C. 2151.414(E); In re J.R., 2d Dist. Montgomery No. 21749, 2007-Ohio-

186, ¶ 9. Clear and convincing evidence is “that measure or degree of proof which is more

than a mere preponderance of the evidence, but not to the extent of such certainty as is

required beyond a reasonable doubt in criminal cases, and which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established.”

(Citations omitted.) In re R.P., 2d Dist. Montgomery No. 27746, 2018-Ohio-517, ¶ 49,

citing In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, at ¶ 42. We

review a trial court’s determination that an award of permanent custody is supported by

clear and convincing evidence under an abuse of discretion standard, which implies a

decision that is unreasonable, arbitrary, or unconscionable. In re: T.S., 2017-Ohio-482,

85 N.E.3d 225, ¶ 6 (2d Dist.), citing In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011-Ohio-

2066, ¶ 14.

{¶ 8} A trial court’s decision on termination of parental rights “will not be

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

competent, credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements for a termination of parental rights have -5-

been established.” (Citations omitted.) In re L.J., 2d Dist. Clark No. 2015-CA-85, 2016-

Ohio-2658, ¶ 21, citing In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15.

{¶ 9} We must therefore consider both whether the trial court abused its discretion

in finding that an award of permanent custody was supported by clear and convincing

evidence and whether the trial court’s judgment was against the manifest weight of the

evidence. See, e.g., In re: E.S., 4th Dist. Pickaway No. 17CA16, 2018-Ohio-1902, ¶ 23,

citing Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus and Davis v.

Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).

Dependency and/or Neglect as Basis for Award of Permanent Custody

{¶ 10} In his first assignment of error, Father contends that the trial court erred in

concluding that J.R. could not or should not be placed with him within a reasonable period

of time, pursuant to R.C. 2151.414(B)(1)(a). Citing R.C. 2151.414(E)(3), Father argues

that the trial court was not permitted to base such a finding only on events that predated

the filing of the original complaint alleging abuse or neglect.

{¶ 11} The trial court based its finding that J.R. could not be returned to his father

within a reasonable period of time solely on the fact that, in 2015, when J.R. was removed

from the grandparents’ home and placed in the temporary custody of GCCS, he was

found to be a neglected and dependent child “based upon the instability and general lack

of adequate care from his parents resulting from their own faults or habits and the

inhospitable nature of his grandparents’ home,” where J.R. and Father had then lived.

Thus, Father correctly observes that the trial court based this conclusion on events that

preceded the filing of the complaint for dependency and neglect and which formed the

basis for J.R.’s 2015 removal from his home. R.C. 2151.414(E)(3) states that a finding -6-

that a child cannot be returned to a parent’s home within a reasonable period of time shall

be based on “all relevant evidence,” but that where such a finding is based on the parent’s

abuse of the child or having caused the child to be neglected, the finding must be based

on events “between the date that the original complaint alleging abuse or neglect was

filed and the date of the filing of the motion for permanent custody.” Thus, the trial court

appears to have improperly relied upon events predating the filing of the original

complaint.

{¶ 12} However, the trial court also found that J.R. had been in the temporary

custody of GCCS for 12 or more of the last 22 months, as was alternately asserted in the

motion for permanent custody. Pursuant to R.C. 2151.414(B)(1)(d), this extended period

of temporary custody provided an alternate basis for the trial court to award permanent

custody, and Father does not dispute this finding. Thus, even if the trial court cited an

improper basis for its conclusion that J.R. could not or should not be placed with Father

within a reasonable period of time, the court made other findings which supported its

decision to award permanent custody to GCCS. Thus, the court’s judgment was not

“contrary to law,” as Father contends.

{¶ 13} The first assignment of error is overruled.

Discovery Issues

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

in failing to allow him discovery related to the GCCS record of the case. As Father notes

in his brief, the motion to compel discovery was filed by Mother, not Father, but Father

asserts that he is entitled to challenge the court’s ruling on appeal because he was

“aggrieved by the final order.” See In re C.M., 4th Dist. Athens No. 17CA16, 2017-Ohio- -7-

9037, ¶ 48-50 (“an appellant may complain of an error committed against a nonappealing

party when the error injuriously affects the appellant.”). Without deciding any question

of standing, we will address the discovery issue.

{¶ 15} Departments of human services and children services boards are required

to keep records and reports of alleged child abuse or neglect, and these records are

generally confidential. See R.C. 2151.421(I)(1); State ex rel. Clough v. Franklin Cty.

Children Servs., 144 Ohio St.3d 83, 2015-Ohio-3425, 40 N.E.3d 1132, ¶ 19. However,

the confidentiality of such records and reports is not absolute; a number of exceptions

exist. For example, R.C. 5153.17 states:

The public children services agency shall prepare and keep written records

of investigations of families, children, and foster homes, and of the care,

training, and treatment afforded children, and shall prepare and keep such

other records as are required by the department of human services. Such

records shall be confidential, but * * * shall be open to inspection by the

agency, the director of the county department of human services, and by

other persons, upon the written permission of the executive secretary.

(Emphasis added in Johnson). Johnson v. Johnson, 134 Ohio App.3d 579, 583-84, 731

N.E.2d 1144 (3d Dist.1999).

{¶ 16} Access to such records shall be granted by the executive secretary on a

showing of good cause. 1991 Ohio Atty.Gen.Ops. No. 91-003. Good cause is shown

“[w]hen it is in the best interests of the child or when the due process rights of other

subjects of the record are implicated.” Id.

{¶ 17} In the context of juvenile court proceedings, Ohio courts have also granted -8-

reasonable access to children services boards’ files. In re: [B], 24 Ohio App.3d 180, 493

N.E.2d 1011 (11th Dist.1985) held that, when a children services board is relying on

records to gain permanent custody through a dependency action, the board must permit

the parent reasonable access to the files of the agency in order to obtain information

relevant to the issues before the court; “[a]n agency of the state may not seize a person’s

child and then be the sole judge [of] how much of the evidence in respect to the agency’s

conduct it will refuse to divulge.” Id. at 184. The court held that the confidentiality

provision set forth in R.C. 5153.17 was overridden by the parent’s fundamental right to a

fair trial, that a “judicial evaluation of the availability of the privilege” was necessary, and

that counsel for the parent should have had reasonable access to the Children Services’

file. (Citations omitted.) Id. Similarly, in Johnson, the court held that a trial court may

conduct an in camera inspection of children services’ records or reports related to abuse,

and may, under appropriate circumstances, order the disclosure of such records or

reports. Johnson at 585.

{¶ 18} In this case, Mother filed a motion to compel discovery on November 21,

2016, in which she requested “Children’s Services’ internal records” so they could be

used “to cross-examine the state.” On December 15, 2016, the trial court granted the

motion to compel, but it stated that, “[i]n lieu of producing the requested documentation

to the issuing party, Greene County Children Services shall produce the requested

documentation to the Court * * * for an in camera inspection to determine whether

portion(s) of the Agency’s file are discoverable.” After the court inspected the GCCS’s

file, it stated at the beginning of the hearing that the file did “not have any discoverable

information.” Neither Father nor Mother objected to this finding. -9-

{¶ 19} The records reviewed by the trial court in camera were not made a part of

the record. As such, we cannot conduct an independent review of the trial court’s

determination that the parents were not entitled to access to these records. However,

Father argues that he could not effectively refute the caseworkers’ testimony about his

lack of progress on his case plan without reviewing the case file. However, it is clear

from the caseworkers’ testimony and from Father’s signatures on documents indicating

that he received copies of the case plan that he had knowledge of the case plan

objectives. Father also had an opportunity to testify concerning any confusion about the

case plan and his attempts to comply with it. We are unpersuaded that Father’s lack of

access to the GCCS file prevented him from presenting evidence about how, in his view,

he had satisfied the case plan objectives.

{¶ 20} Father also contends that that he was denied due process because (1) the

guardian ad litem apparently had access to the GCCS file, while he did not, (2) the

guardian ad litem based her recommendations, at least in part, on the information

contained in the file, and (3) the trial court then relied on the “information back channeled

from the agency through the [guardian ad litem]” in reaching its decision.

{¶ 21} Although the guardian ad litem’s report does state that she had reviewed

a variety of materials, including the “CPS” record, the guardian ad litem gathered

information from a wide variety of sources, including interviews with teachers,

caseworkers, the foster parents, Father, and J.R. The record does not evidence to what

extent the guardian ad litem relied exclusively on the GCCS record for her information, if

at all. And Father, in his testimony, could have pointed out any disagreements he had

with the guardian ad litem’s report. Thus, we cannot conclude that Father was -10-

prejudiced by the guardian ad litem’s access to the GCCS file.

{¶ 22} The second assignment of error is overruled.

Evidence Supporting Award of Permanent Custody

{¶ 23} In his third assignment of error, Father contends that the trial court’s

decision to grant permanent custody of J.R. to GCCS was against the manifest weight of

the evidence.

{¶ 24} The evidence presented at the hearing was as follows:

{¶ 25} J.R.’s foster mother testified that J.R. visits with his father regularly on

Sundays. Father is generally available for these visits, but sometimes J.R. does not want

to go, and the foster parents allow him to make that choice; sometimes J.R. does not

want to deal with the “arguing” at Father’s house, and sometimes he does not want to

miss out on something that is happening at the foster home. J.R. generally speaks

positively about his Father and about his other siblings who live with Father.

{¶ 26} According to the foster mother, J.R. was in the 6th grade at the time of the

hearing and had an IEP at school due to developmental delays. He is a “good kid” who

is bonded with both of the foster parents and comes to them when he is upset. J.R.

enjoys doing home repair projects with his foster father. The foster parents were

interested in adopting J.R.; if they were to adopt J.R., they would be open to some

continued contact between J.R. and Father.

{¶ 27} The foster parents had not received any financial support from Mother or

Father while J.R. was in their care, and the foster parents had not heard from Mother at

all for more than a year prior to the hearing.

{¶ 28} Allison Hull was the GCCS caseworker from March 2015, shortly after J.R. -11-

was removed from Father’s home, until December 2015. Hull testified that J.R. was

removed from his paternal grandparents’ home, where he lived with Father, due to

“physical hazards.” She testified that it was unclear who had custody of J.R. at that point.

Father’s initial case plan included the following goals: stable housing, employment,

visitation with J.R., and parenting classes. However, implementation of the case plan

was complicated by the fact that, shortly after J.R.’s removal, Father moved to Indiana

with a new girlfriend that he met online. Due to the move, Father’s visits were

inconsistent, and it was difficult for Hull to help Father with services, although she did

attempt to do so.

{¶ 29} Hull testified that J.R. did “very well emotionally and socially and

academically” in foster care, where she visited him at least once per month. With respect

to school, Hull testified that J.R. was in a “multi-handicapped classroom for intellectually

impaired children,” had an IEP, received therapy individually and through school, and took

medication for attention deficit hyperactivity disorder (ADHD).

{¶ 30} Hull stated her belief that J.R. was bonded with Mother and with his siblings

during Hull’s involvement with the case (i.e., through December 2015), but he did not

seem to be bonded with Father.

{¶ 31} The second caseworker on the case, Kaylee Crawford, worked with J.R.

and his family from January through June 2016. She testified that, prior to her

involvement, Father had been removed from the case plan because of his lack of

participation while living in Indiana. When he returned to Ohio in March 2016, he was

added to the case plan with the following goals: mental health assessment and follow

through, employment to show an ability to support his children, visitation, and attending -12-

J.R.’s medical and IEP appointments. Placement with the paternal grandparents was

also explored during this time, but the condition of their home (from which J.R. was

originally removed in March 2015) and the grandmother’s failing health precluded such a

placement. J.R. could not be placed with Mother because of her drug use and lack of

suitable bedding for the child.

{¶ 32} While Crawford was assigned to the case, Father reported to her that he

had several job interviews, but he was never employed. Father asserted that

transportation was a problem for him with respect to employment, despite Crawford’s

offers to help him with transportation. Father was staying with a relative, but there was

no bed for J.R. at that home.

{¶ 33} Father visited with J.R. at the foster home, and Crawford testified that

these visits were “mostly fine”; J.R. complained that Father spent too much time on his

cell phone during their visits. With respect to the mental health assessment and follow-

up, Crawford testified that Father did not get an assessment while she was working on

the case, despite her providing information to him about how and where to do so.

{¶ 34} In sum, Crawford testified that Father “was engaged with” her during the

time that she was assigned to J.R’s case, but that Father “was not necessarily meeting

the case plan objectives” during this time. He did not attend appointments with J.R., did

not get employment or a mental health assessment, and did not have housing that could

accommodate J.R.

{¶ 35} Amanda Ray was the caseworker from June 2016 through the time of the

hearing. Ray testified that J.R. was bonded with his foster parents, had a routine in their

home, shared his feelings with them, and helped out around the house. J.R. continued -13-

on an IEP at school and with ADHD medication. The foster parents hoped to adopt J.R.

{¶ 36} With respect to the case plan objectives, Ray testified that Father

completed a parenting class in December 2016. He also completed his mental health

assessment. The recommendation following the mental health assessment was that

Father “contact [the mental health agency] for counseling per his own desire”; Father had

expressed an interest to Ray in further counseling, but he had never done so. Father

was not employed and had no other income.

{¶ 37} At the time of the hearing, Father lived with his aunt; he had lived there for

an extended period, but he did not contribute to or maintain the household. Therefore,

according to Ray, Father did not demonstrate that he was able to provide stable,

independent housing. Moreover, the aunt’s house did not have a room for J.R. The

house was also infested with cockroaches, although not to the degree that had caused

J.R.’s original removal from his grandparents’ house. Father had recently applied for

“Greene Met housing,” but he was on a waiting list and could remain on the waiting list

for months.

{¶ 38} During Ray’s time as the caseworker, Father had attended 2 out of 4 or 5

doctor’s appointments for J.R.; he had not attended the one IEP appointment. Father’s

visits with J.R. were inconsistent because he often spent weekends in jail (subject to

availability of space) due to an unpaid child support obligation. Father sometimes called

the foster family about a visit when he was released from jail on Sundays, but sometimes

he did not. Other times, J.R. opted not to have the visit, and Father was not very

assertive about following through. Father had missed approximately four of his weekly

visits in the two months preceding the hearing. -14-

{¶ 39} Ray testified that Father had made “some progress” on his case plan while

she was assigned to the case, but not enough for reunification. She stated:

[Father] only started his case plan objectives for the mental health

assessment and the parenting classes once the agency had already filed

for permanent custody, so for several months leading up to that I was giving

[Father] letters to state where he could sign up for parenting classes, their

phone number, address, as well as giving him the information about [a

behavioral health services program], their walk-in hours. How he was able

to contact them. And then the visitation with [J.R.] wasn’t consistent, so

that – those continued to be concerns for me.

***

There’s been an overall lack of consistency and change in [Father’s]

parenting style with [J.R.]. The consistency with visitation, I got to the point

where, you know, I’m giving him letters sometimes twice a month to advise

him of services, and he’s still not engaging on his own. That becomes a

concern.

Not attending [J.R.’s] appointments, not having a full understanding of

[J.R.’s] diagnosis and what needs to come about from that, to help [J.R.]

with the IEP, things of that nature.

{¶ 40} Based on these concerns and observations, Ray testified that she

believed it was in J.R.’s best interest to grant permanent custody to GCCS, with the goal

of adoption by the foster family.

{¶ 41} The guardian ad litem submitted a report to the court in December 2016; -15-

she did not testify at trial. The guardian ad litem stated in her report that J.R. seemed

well adjusted to his foster home; he plays outside more and is less “skinny” than when he

first came to live with them. In some contexts, J.R. expressed openness to adoption by

the foster family and talked about a long term relationship with them, such as caring for

his foster parents when they were old. But he got upset at the prospect of permanent

custody being granted to GCCS when it was explained to him that this meant regular

visitation with his father would end. The foster parents were open to adopting J.R. if they

could be provided with continued support through GCCS.

{¶ 42} As described by the guardian ad litem, J.R.’s teacher expressed that he

did well in school but was “very low cognitively,” that his behavior was “very juvenile and

distracting,” and that he had friends but got upset or felt rejected if his friends “need some

space from his clingy behavior.” J.R. receives a lot of assistance in his multiple

disabilities classroom and needs “basically one on one” attention. The teacher

expressed “significant concern” that J.R. will need assistance and services from Greene

County MRDD when he is an adult and that he could “fall through the cracks” when he

reached age 18, because “while he seems like a typical kid when you first meet him it

quickly becomes apparent that his processing isn’t there.”

{¶ 43} As of the time of the guardian ad litem’s report (three months before the

hearing), the caseworker reported to her that Father had often been visiting with J.R. one

day per week, but that Father had not otherwise been working on his case plan objectives,

including that he had not yet completed his mental health assessment, obtained

employment, or been attending J.R.’s appointments.

{¶ 44} Father told the guardian ad litem that “everything has fallen apart” since he -16-

was ordered to jail on weekends, because he has a harder time setting up visits with J.R.

and has no control. He placed emphasis on his lack of a driver’s license in discussing

his inability to get a job and to attend J.R.’s appointments, notwithstanding the

caseworker’s offers to help him with transportation. According to the guardian ad litem,

Father seemed hopeless with respect to his likelihood of getting a job without a driver’s

license.

{¶ 45} With regard to J.R.’s wishes about custody, the guardian ad litem stated

that J.R. expressed the desire to live with his foster family for “the rest of his life” and

continue to visit his father. When the guardian ad litem explained that permanent

custody would mean that he would not see his father anymore, J.R. became upset and

stated that he wanted to live with Father.

{¶ 46} The guardian ad litem recommended that permanent custody be awarded

to GCCS.

{¶ 47} Finally, Father testified at the hearing. He stated that he had lived with

his aunt for six and a half years but was only staying there until he “can actually get on

[his] feet.” He had applied for housing through Greene Met and looked for housing

online. He did not know how long he was likely to be on the waiting list at Greene Met.

{¶ 48} Father further testified that he moved to Indiana in 2015 for better job

opportunities, and that he got a job when he was there. He also testified that he had

been employed at a construction company in Vandalia since “last Monday” and that he

had transportation arranged to this employment. He stated that he had completed

parenting classes and a mental health assessment, that he visited with J.R. every Sunday

unless J.R. chose not to do so, and that he was “getting [his] life back on track.” On -17-

cross-examination, Father testified that he has never had custody of J.R. and that he was

unfamiliar with J.R.’s school information, such as his teachers’ names and his most recent

report card grades.

{¶ 49} The trial court could have reasonably concluded that Father had not

substantially rectified the concerns that formed the basis of his case plan objectives.

There had been two extensions of temporary custody (the maximum allowed by statute,

R.C. 2151.415(D)(4)), and much of the progress he had made occurred only after GCCS’s

complaint for permanent custody was filed. Although Father did a good job of

maintaining contact with J.R. through visitation, he had not made other meaningful

changes in his life or living arrangements. Having thoroughly reviewed the record of this

case, we cannot conclude that the trial court abused its discretion or that it erred in

concluding that GCCS had proven, by clear and convincing evidence, that an award of

permanent custody to GCCS was in J.R.’s best interest and that he had been in the

temporary custody of GCCS for 12 or more months of the previous 22 months.

{¶ 50} The third assignment of error is overruled.

{¶ 51} The judgment of the trial court will be affirmed.

.............

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Nathaniel R. Luken Carl Bryan Daniel Getty Jennifer Lutes Marcy Vonderwell -18-

Hon. Adolfo A. Tornichio