[Cite as In re N.H., 2017-Ohio-2946.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: N.H. - N.H. 2 ET AL., : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : : Case No. 17-CA-5 : 17-CA-6 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Juvenile Division, Case Nos. 2015-AB-189 and 2015-AB-190
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 19, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant S.H.
R. KYLE WITT JULIA TABOR Prosecuting Attorney Law Offices of Jason M. Donnell, LLC 118 South Pearl Street By: DAVID K. H. SILWANI Lancaster, Ohio 43130 Assistant Prosecuting Attorney Fairfield County, Ohio For Mother 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 AJMERI HOQUE YMF Inc. For Guardian Ad Litem 84 South 4th Street Columbus, Ohio 43125 EDWARD ITAYIM 739 S. Third Street Columbus, Ohio 43206 Fairfield County, Case No. 17-CA-5, 17-CA-6 2
Baldwin, J.
{¶1} Appellant S.H. appeals from the January 10, 2017 Judgment Entry of the
Fairfield County Court of Common Pleas, Juvenile Division, granting permanent custody
of his two children to Fairfield County Child Protective Services.
STATEMENT OF THE FACTS AND CASE
{¶2} N.H. (DOB 7/9/15) and N.H. (DOB 7/9/15), who are twins, are the biological
children of appellant S.H. On July 22, 2015, Fairfield County Child Protective Services
(FCCPS) filed complaints alleging that N.H. and N.H. were dependent children. On the
same day, the two children were placed in the temporary shelter custody of FCCPS. The
complaints were later dismissed without prejudice.
{¶3} On October 13, 2015, FCCPS filed complaints alleging that both children
were dependent children. Following a shelter hearing held the same day, the two children
were placed in the temporary custody of FCCPS. On November 19, 2015. N.H. and N.H.
were found to be dependent children and were placed in the temporary custody of
FCCPS.
{¶4} Thereafter, on June 13, 2016, FCCPS filed motions in both cases seeking
permanent custody of the children. An oral hearing on the motion commenced before a
Magistrate on October 10, 2016. While the children’s mother did not contest the motion,
appellant did.
{¶5} At the hearing, Dr. Mary Elizabeth Flum, an outpatient therapist with a PH.D.
in counseling education, testified that she had a chance to assess appellant in January
of 2016 and that appellant almost fell asleep during her evaluation. She testified that Fairfield County, Case No. 17-CA-5, 17-CA-6 3
appellant discussed his use of marijuana which had developed into a daily habit and also
that appellant stated that, in approximately 2010, he had started using opiates and had
overdosed eight times. Dr. Flum testified that appellant stated that he had been
diagnosed with bipolar disorder. Dr. Flum, following a psychological examination,
diagnosed appellant with bipolar I disorder, a personality disorder that caused appellant
to have disruptions in his relationships with others and issues with impulse control, and
chemical dependency based on his opioid use. She also diagnosed him with borderline
intellectual functioning. Dr. Flum testified that she recommended that appellant continue
his psychiatric consultation and continue with substance abuse treatment. Dr. Flum
testified that she wanted appellant to have his medications monitored so that his mood
swings and concerns with anxiety and depression would be controlled. Appellant also
was recommended by her to complete cognitive behavioral therapy and parenting
education. The following is an excerpt from her testimony at the hearing:
{¶6} Q: From a hypothetical standpoint, let’s just say that [S.H.] has not
engaged in any of those recommendations, would that cause you concern about his ability
to parent?
{¶7} A: Again, it would be hard for me to say having not observed him around
his children. But generally, broadly speaking, if you’re suffering from significant
behavioral health, mental health behaviors, and you’re not addressing those issues, then
it could be setting you up for difficulties in your relationship with others.
{¶8} Q: Okay, Including children?
{¶9} A: Yes, it could be.
{¶10} Transcript at 188. Fairfield County, Case No. 17-CA-5, 17-CA-6 4
{¶11} Dr. Flum’s evaluation of appellant was admitted as an exhibit.
{¶12} Stefanie Valdez, a caseworker with Franklin County Children’s Services
who had previously worked with Fairfield County Job and Family Services, testified that
she was assigned the case of N.H. and N.H. on August 14, 2015, a month after the two
were born, and remained the caseworker until May 27, 2016. She testified that the agency
became involved after the children’s mother posted on Facebook while the children were
in the hospital that she did not have items for the babies and the two parents were
behaving erratically. She also indicated that the agency had concerns that the parents
were substance abusers and were unable to meet the special needs of the twins, who
were premature. When asked about the case plan for appellant, she testified that he was
to complete an alcohol/drug assessment through the Recovery Center and follow through
with recommendations, engage in mental health counseling and follow recommendations,
complete a psychological evaluation and follow recommendations, and complete
parenting education. Valdez testified that housing was not a concern and that appellant
received a monthly disability check. According to Valdez, when the agency first received
the case, appellant already had a Subutex prescription. She testified that appellant was
to maintain his prescriptions and show them to the agency when requested to do so.
Valdez testified that appellant was assessed by the Recovery Center and started services
there. While Valdez was his caseworker, appellant was working on his alcohol/drug
treatment. Valdez testified that appellant tested positive for marijuana in September of
2015.
{¶13} Joanne Butcher, the caseworker who took over for Valdez in June of 2016,
testified that since she had taken over, appellant had made little progress on his case Fairfield County, Case No. 17-CA-5, 17-CA-6 5
plan with respect to drug and alcohol recovery issues. When she first started, appellant
was connected with the Recovery Center but wasn’t going. Butcher testified that appellant
did see a counselor at MidOhio. According to Butcher, appellant had completed the first
packet at MidOhio that is used for alcohol and drug education, but that there were several
packets. When asked if, with respect to counseling for drug and alcohol issues, appellant
had successfully completed that portion of his case plan, she testified that he had not.
Appellant had not shown proof of any prescriptions since August of 2016 although he was
required to do so and had switched from Subutex to Suboxone without telling her. Butcher
further testified that appellant had not complied with the recommendations from his
psychological examination and was not doing anything, as far as she was aware, for his
bipolar disorder.
{¶14} While appellant was seeing someone from MidOhio and had been doing
better since July of 2016, Butcher testified that appellant had not made substantial
progress on his case plan with respect to mental health counseling. She further testified
that appellant was not receptive to parenting education and that appellant had not
complied with that aspect of his case plan.
{¶15} Butcher testified that the agency had looked into other family members for
purposes of placement, but that none were suitable or interested. She testified that she
had monitored several visits between appellant and the twins and that during the visits,
appellant bickered with the children’s mother and seemed aggravated when one of the
babies was fussy. According to her, there was “not a lot of loving, tenderness, that kind
of stuff in their visits.” Transcript at 551. She also had an opportunity to observe the twins Fairfield County, Case No. 17-CA-5, 17-CA-6 6
in their foster home. The following testimony was adduced when she was asked if there
was any difference in how the twins behaved in their foster home than with appellant:
{¶16} A: There’s a difference. Foster mom is very laid back. They have lots of
things for the girls to do. They have sectioned off a large area of their room. They have
lots of books. And like appropriate kind of little toys that they’ve been given examples of
what would help with their physical development. So they can move around easily. And
the girls are very affectionate. She will sit on the floor with them, you know, interacts with
them more, I think. She’s just more at ease I think with them than [S.H.] is.
{¶17} Transcript at 551-552.
{¶18} Butcher further testified that the children recognized appellant when he
came in and interacted with him, but that they went to their foster mother if they fell or
bumped their heads. She believed that there was “somewhat” of bond between appellant
and the twins, but that there was not a strong bond. Transcript at 553. According to
Butcher, when she tried to talk to appellant about one of the children’s medical issues,
appellant did not want to hear about it.
{¶19} Testimony also was adduced that appellant had been convicted of
falsification the previous month and was going to spend 20 days in jail. Butcher testified
that she had no idea until the hearing that appellant had new charges and was concerned
for the safety of the children because appellant was involved with someone who was
dealing drugs and was personally there. She indicated that she did not see enough
progress made to attempt reunification with the children and that the agency still had the
same concerns as it initially had. According to Butcher, the children needed a legally
secure, permanent placement and that the need was stronger due to medical needs that Fairfield County, Case No. 17-CA-5, 17-CA-6 7
they had. She testified that they had delayed motor skills and a lot of medical issues due
to being premature and that they had numerous medical appointment. Butcher stated that
the agency believed that it was in the best interest of the children for permanent custody
to be granted to the agency.
{¶20} At the hearing, Andrea Stedman, the visitation monitor since August of
2015, testified that appellant visited with his children consistently and was able to manage
them by himself. She testified that during visits, appellant directed the children’s mother
and called her names and made comments about her parenting. The two had used foul
language. Stedman testified that she canceled one visit in September of 2016 over fear
for the mother after observing an argument between appellant and the mother. Appellant
told her that some woman had accused him of punching the children’s mother in the
mouth, but that he told her that he had shoved a doughnut into her mouth and had not hit
her.
{¶21} At the hearing, Edward Itayim, the Guardian Ad Litem, testified that he
recommended that the motion for permanent custody be granted.
{¶22} The Magistrate, in lengthy and thorough Decision filed on October 28, 2016,
recommended that appellant’s parental rights be terminated and that both children be
placed in the permanent custody of FCCPS. Appellant filed objections to such decision.
Thereafter, the trial court, in a Judgment Entry filed on January 10, 2017, overruled
appellant’s objections and ordered that the children be placed in the permanent custody
of FCCPS.
{¶23} Appellant now raises the following assignment of error on appeal1:
1 Appellant filed appeals with respect to both children. Fairfield County, Case No. 17-CA-5, 17-CA-6 8
{¶24} THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE
STATE’S MOTION FOR PERMANENT CUSTODY WITHOUT CLEAR AND
CONVINCING EVIDENCE.
I
{¶25} Appellant, in his sole assignment of error, argues that the trial court erred in
granting permanent custody of the two children to FCCPS. We disagree.
{¶26} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide 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, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all
the essential elements of the case supports the trial court's judgment, an appellate court
must affirm the judgment and not substitute its judgment for that of the trial court. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶27} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties' Fairfield County, Case No. 17-CA-5, 17-CA-6 9
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159.
{¶28} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶29} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending.
{¶30} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial court
will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶31} In the case sub judice, the trial court found that R.C. 2151.414(B)(1)(a)
applied. Pursuant to R.C. 2151.414(B)(1)(a), the trial court found the children could not Fairfield County, Case No. 17-CA-5, 17-CA-6 10
be placed with either of the children's parents within a reasonable time or should not be
placed with the children's parents. In making this decision, the trial court must consider
the factors of R.C. 2151.414(E). The trial court specifically found that R.C.
2151.414(E)(1), (2), (4), (13), and (16) applied to appellant.
{¶32} R.C. 2151.414 states, in relevant part, as follows:
(E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised
Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(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 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 Fairfield County, Case No. 17-CA-5, 17-CA-6 11
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 mental illness, chronic emotional illness, intellectual disability,
physical disability, or 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 or for the
purposes of division (A)(4) of section 2151.353 of the Revised Code;…
(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;...
(13) The parent is repeatedly incarcerated, and the repeated incarceration
prevents the parent from providing care for the child….
(14) The parent for any reason is
(16) Any other factor the court considers relevant.
{¶33} In the case sub judice, there was testimony that appellant had not
substantially complied with his case plan. Joanne Butcher testified that, with respect to
alcohol and drug counseling, appellant had not successfully completed that portion of his
plan and had completed only one out of several packets in relation to alcohol/drug
counseling. While appellant testified at the hearing that he had consistently been going Fairfield County, Case No. 17-CA-5, 17-CA-6 12
to NA and AA meetings for two years, he did not know the first step in the recovery
process and did not have a sponsor, although he indicated that he needed to get one.
When asked at the hearing how long it was going to take him to taper off of the Suboxone,
appellant testified that even if his doctor disagreed, he was going to lower how much he
was taking. Butcher further testified that appellant had not been complying with the
recommendations of the psychological evaluation and was not doing anything for his
bipolar disorder. She further voiced concerns over the fact that appellant had never given
her a “straight answer” about which medications he took and had not shown her any
prescriptions for his bipolar disorder. Transcript at 547. Moreover, Stefanie Valdez,
appellant’s prior caseworker, testified that appellant did not comply with the
recommendations from the psychological evaluation since he did not engage in any group
therapy as was recommended by the psychologist.
{¶34} Butcher also testified that while appellant had been doing better with mental
health counseling since July of 2016, he had not made substantial progress and that it
was the opinion of the agency that he had not complied with that aspect of his case plan.
While appellant sought mental health counseling from MidOhio, he attended
approximately twelve appointments since December of 2015 and had missed
approximately five to seven appointments since then.
{¶35} According to Butcher, appellant also had not complied with that portion of
his case plan requiring parenting education. Andrea Stedman testified that she terminated
parenting sessions with appellant after he failed to attend them consistently and that
appellant had not had any formal parenting education from her since May of 2016. She
further testified that appellant did not implement what he had learned. Fairfield County, Case No. 17-CA-5, 17-CA-6 13
{¶36} The Guardian Ad Litem, in his October 3, 2016 report, indicated that it was
his opinion that appellant and the children’s mother had not made significant enough
progress with their mental health to reunify with the children and that he did not believe
that the issue could be remedied within a reasonable amount of time.
{¶37} Based on the foregoing, we find that there was clear and convincing
evidence that appellant had failed to substantially comply with his case plan.
{¶38} The trial court further found that R.C. 2151.414(E)(2) applied. As is
discussed above, there was testimony that appellant failed to complete the drug and
alcohol portions of his case plan. Dr. Flum testified at the hearing that appellant told her
that he had overdosed 8 times and had used heroin. Appellant testified that he had been
attending AA and NA meetings consistently for two years, but did not have a sponsor and
was unable to state what the first step of recovery was. As part of his assessment at the
Recovery Center, appellant was to engage in 12 step meetings. There was testimony
that the position of the agency was that appellant had not successfully completed
counseling for drug and alcohol issues. Kerith Palletti, a counselor at the Recovery
Center, testified that appellant did not successfully complete counseling and was
discharged in July of 2016 for attendance issues.
{¶39} Furthermore, with respect to R.C. 2151.414(E)(13), there was testimony at
the hearing that appellant had three domestic violence convictions and convictions for
receiving stolen property, theft, criminal damaging, assault, attempted breaking and
entering and driving under the influence. Appellant testified that he spent thirteen months
in prison once and was in jail “too many times to count with both hands.” Transcript at
303. Appellant also pled guilty to falsification in September of 2016 and was sentenced Fairfield County, Case No. 17-CA-5, 17-CA-6 14
to 180 days in jail with all but twenty days suspended. The charge stemmed from a drug
deal involving appellant’s friends.
{¶38} Based on the foregoing, we find that there was clear and convincing
evidence supporting the trial court’s finding that appellant had continuously and
repeatedly failed to substantially remedy the conditions causing the children to be placed
outside the home and that the children could not be placed with either parent within a
reasonable time or should not be placed with either parent. As noted by the Magistrate,
appellant “has not complied with the case plan, has not followed the recommendations of
his psychological evaluation, has not adequately complied with mental health treatment
recommendations, has not adequately complied with recommended drug and alcohol
treatment, has not participated in parenting education, and has not consistently attended
the children’s medical appointments.”
{¶39} Appellant also challenges the trial court’s finding that it was in the best
interest of the children for permanent custody to be granted to the agency. R.C.
2151.414(D) states as follows:
(1) In determining the best interest of a child at a hearing held pursuant to division
(A) of this section or for the purposes of division (A)(4) or (5) of section
2151.353 or division (C) of section 2151.415 of the Revised Code, 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; Fairfield County, Case No. 17-CA-5, 17-CA-6 15
(b) The wishes of the child, as expressed directly by the child or through the child's
guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the
temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two-
month period, or 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 and, as described
in division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another state;
(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.
{¶40} There was testimony at the hearing that while the children, who are too
young to express their wishes and who were placed with the agency shortly after their
birth, were somewhat bonded to appellant, they were more bonded to their foster mother
and looked to her when they needed care or comfort. There was testimony that during
visitation with the children, appellant and the children’s mother spent more time looking
for bottles and with “housekeeping stuff” than interacting with the children. Transcript at
553. The Guardian Ad Litem, in his October, 2016 report, noted that the children, who
had physical developmental delays, were very attached to their foster parents who were Fairfield County, Case No. 17-CA-5, 17-CA-6 16
looking to adopt them and that while appellant’s grandmother was a potential placement
option, she had serious health concerns and would not be an appropriate caregiver. The
Guardian Ad Litem indicted that permanent custody was in the children’s best interest.
{¶41} There also was testimony that the relationship between appellant and the
children’s mother was tumultuous and that the two constantly bickered during visits with
children. According to Valdez, appellant and the mother tattled on each other. There
further was testimony that appellant belittled the mother and called her names such as
“idiot”, “dweeb” “dork” and “slow” in front of the children. While appellant was requested
by the agency to attend the children’s medical appointments, he did not consistently do
so and during the duration of the case, attended 8 out of 25 appointments.
{¶42} Moreover, at the hearing, the children’s current caseworker testified as to
the children’s need for a legally secure, permanent placement. The following is an excerpt
from her testimony:
{¶43} Q: All right. Now, do you think that NH and NH have a stronger need for
legally secure, permanent placement due to their medical issues?
{¶44} A: Yes.
{¶45} Q: And why is that?
{¶46} A: Well, because they’re going to need extra attention because of those
medical needs. It’s extra work. There’s lots of appointments. There’s lots of things that
need to be done special for them. So, you know, it’s much more imperative in order for
them to grow to be healthy adults, they are going to need all this extra stuff.
{¶47} Q: And what is the Agency’s position as to what’s in the best interest of the
children? Fairfield County, Case No. 17-CA-5, 17-CA-6 17
{¶48} A: The Agency position is in the best interest of the girls, for the Agency to
have permanent custody.
{¶49} Transcript at 569- 570.
{¶50} Based on the foregoing, we find that there was clear and convincing
evidence that it was in the best interest of the children for permanent custody to be
granted to the agency.
{¶51} Appellant’s sole assignment of error is, therefore, overruled. Fairfield County, Case No. 17-CA-5, 17-CA-6 18
{¶52} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Juvenile Division, granting permanent custody of his two children to Fairfield County Child
Protective Services is affirmed.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.