In re F.B. , 2020 Ohio 5610 ( 2020 )

[Cite as In re F.B., 2020-Ohio-5610.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: F.B., S.B., and H.B. : APPEAL NO. C-200320
TRIAL NO. F11-582X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 9, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Kathleen Kenney, for Appellee Guardian ad Litem for S.B. and H.B.,
Ed Clore, In re Williams Attorney for F.B.,
James A. Anzelmo, for Appellant Father.
OHIO FIRST DISTRICT COURT OF APPEALS
Z AYAS , Judge.
{¶1} Appellant A.B. (“Father”) appeals from a judgment of the Hamilton
County Juvenile Court that terminated his parental rights and placed his three
children, F.B., S.B. and H.B., in the permanent custody of the Hamilton County
Department of Job and Family Services (“HCJFS”). For the following reasons, we
affirm.
Facts and Procedural History
{¶2} F.B. (born on October 10, 2007), S.B. (born on December 1, 2008),
and H.B. (born on October 6, 2009) are the children of Father and D.B. (“Mother”),
who died from a terminal illness in February 2017. At the time of Mother’s death,
Father and Mother were separated and living apart. The children were living
exclusively with Mother in Cincinnati, Ohio, while Father was living in Michigan.
{¶3} Prior to Mother’s death, the children had been on an HCJFS safety
plan for several weeks due to the condition of their home, the children’s hygiene, and
the effects of Mother’s medication for her terminal illness. On January 31, 2017, the
children were removed from her care by HCJFS for a violation of this safety plan.
Specifically, the children were not to be in contact with their uncle, Vincent Hillman,
as Hillman had abused F.B. through “excessive physical discipline.” However,
HCJFS learned that Hillman was driving Mother and the children in his van when he
fell asleep at the wheel and crashed into a bus. All three children were hospitalized
as a result of this accident.
{¶4} Upon Mother’s passing, Father traveled to Cincinnati from Michigan
to attend the funeral service on February 17, 2017, but returned to Michigan
afterwards. At that time, Father had not seen his children since October 2016. While
in Cincinnati, Father asked HCJFS about completing a home study through the
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OHIO FIRST DISTRICT COURT OF APPEALS
Interstate Compact on the Placement of Children (“ICPC”) to move the children to
Michigan and stayed in contact with an HCJFS caseworker named Stafford. For
unknown reasons, an ICPC was never completed. Stafford had left the agency.
{¶5} The children were adjudicated dependent on May 25, 2017, and
thereafter separated into different foster placements. All three children were
diagnosed with mental-health disorders. F.B. was diagnosed with PTSD and has
required multiple hospitalizations due to “outbursts.” She once expressed desires to
kill her foster mom and herself. S.B. was diagnosed with PTSD and has deficiencies
related to a traumatic brain injury that he suffered in the car accident. He has an IEP
for cognitive delays and behavioral issues. H.B. was diagnosed with PTSD and
enuresis. All three children are engaged in therapeutic services through HCJFS.
{¶6} On June 5, 2018, HCJFS moved to modify temporary custody to
permanent custody pursuant to R.C. 2151.413(A). Father first appeared in court on
October 24, 2018, for the hearing on HCJFS’s motion. At that time, the court
ordered visitation for Father, and also ordered him to complete services through the
agency, including a diagnostic assessment, to maintain consistent and positive
visitation, and to find stable income and housing.
{¶7} A trial on HCJFS’s motion for permanent custody was scheduled for
May 20, 2019, but was continued because Father requested new counsel. Father’s
counsel, who was initially appointed in September 2017, was permitted to withdraw.
The trial was rescheduled to August 2019. Father’s newly-appointed counsel
requested a continuance of the trial, and it was rescheduled to November 2019.
{¶8} At the start of trial on November 19, 2019, Father again requested new
counsel, citing communication problems with his current counsel. Father’s counsel
indicated that Father mailed him a copy of a lease for a new apartment but he did not
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OHIO FIRST DISTRICT COURT OF APPEALS
receive it. Father’s counsel said that he and Father were “having problems
communicating,” and that he “may not be able to effectively represent him due to
[communication problems].” The magistrate denied Father’s request for new
counsel.
{¶9} A trial took place over two days, on November 19, 2019, and January
28, 2020. On February 7, 2020, the magistrate granted HCJFS’s motion for
permanent custody of F.B., S.B. and H.B. and denied Father’s motion for custody.
Father filed a one-paragraph objection to the magistrate’s decision, alleging
insufficient proof to support the grant of permanent custody to HCJFS. In lieu of
oral arguments on the objection, the trial court considered written arguments filed
by the parties, in addition to the transcripts and evidence made part of the record.
On August 5, 2020, the trial court adopted the findings of the magistrate and wrote
its own lengthy decision. The trial court denied Father’s objection and approved the
magistrate’s decision.
{¶10} Father now appeals, asserting two assignments of error.
Analysis
{¶11} In his first assignment of error, Father argues that the trial court erred
in denying his motion to discharge his second court-appointed attorney.
{¶12} Appellate review of the trial court’s decision as to the replacement of
counsel is normally for an abuse of discretion. See State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48 (2006). However, Father did not object to the
magistrate’s denial of his request for new counsel in accordance with the Ohio Rules
of Juvenile Procedure. “An objection to a magistrate’s decision shall be specific and
state with particularity all grounds for the objection.” Juv.R. 40(D)(3)(b)(ii).
Because Father failed to raise this issue in his objection, he has waived all but plain
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OHIO FIRST DISTRICT COURT OF APPEALS
error. See In re Jones, 1st Dist. Hamilton Nos. C-090497, C-090498 and C-090499,
2010-Ohio-3994, ¶ 31-33; In re J.G.S., 1st Dist. Hamilton No. C-180611, 2019-Ohio-
802, ¶ 23. Plain error “is not favored and may be applied only in the extremely rare
case involving exceptional circumstances where error, to which no objection was
made at the trial court, seriously affects the basic fairness, integrity, or public
reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-
7565, 103 N.E.3d 784, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d
1099 (1997).
{¶13} On the record below, Father cannot establish error, much less plain
error, in the trial court’s decision not to permit new counsel. “To discharge a court-
appointed attorney, the defendant must show a breakdown in the attorney-client
relationship of such magnitude as to jeopardize the defendant’s right to effective
assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988),
paragraph four of the syllabus. In this case, Father was represented by counsel for
the entirety of the permanent-custody trial, and counsel was actively involved in
representing his interests on cross-examination and direct examination. That is,
Father’s counsel appears to have been fully prepared. There was no evidence
presented below to demonstrate a breakdown in the attorney-client relationship such
that it jeopardized Father’s right to effective counsel. Moreover, Father does not
argue, nor is it evident, how different counsel might have produced a different
outcome. Accordingly, we overrule Father’s first assignment of error.
{¶14} In his second assignment of error, Father argues that HCJFS failed to
establish by clear and convincing evidence that it should be granted permanent
custody of Father’s children. Father contends that the trial court’s determination
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OHIO FIRST DISTRICT COURT OF APPEALS
that he is not bonded with his children and that H.B. and S.B. had indicated a desire
not to be placed with him is not supported by the record.
{¶15} “Because parents have a paramount right to the custody of their
children, the juvenile court’s determination to grant permanent custody to HCJFS
must be supported by ‘clear and convincing’ evidence.” In re X.M.W., 1st Dist.
Hamilton No. C-190568, 2020-Ohio-449, ¶ 7, citing In re A.M.Z., 1st Dist. Hamilton
Nos. C-190292, C-190317 and C-190326, 2019-Ohio-3499, ¶ 5. Clear and convincing
evidence is sufficient evidence to “ ‘produce in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be established.’ ” In re L.D., 1st Dist.
Hamilton No. C-190470, 2019-Ohio-4990, ¶ 4, quoting In re W.W., 1st Dist.
Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46.
{¶16} “Although the termination of the rights of a natural parent should be
an alternative of ‘last resort,’ such an extreme disposition is nevertheless expressly
sanctioned [under R.C. 2151.353] when it is necessary for the ‘welfare’ of the child.”
In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979), quoting In re
Fassinger, 42 Ohio St.2d 505, 330 N.E.2d 431 (1975). Pursuant to R.C.
2151.353(A)(2), when a child has been previously adjudicated dependent and
temporary custody has been granted to HCJFS, the agency may move for permanent
custody of the child under R.C. 2151.413(A) and 2151.414. The juvenile court will
then grant permanent custody to the agency if a two-prong test is satisfied. See R.C.
2151.414(B). Under R.C. 2151.414(B)(1), clear and convincing evidence must
demonstrate that (1) the grant of permanent custody is in the child’s best interest
and (2) one of the factors under R.C. 2151.414(B)(1)(a) through (e) is also met. See
R.C. 2151.414 (B)(1) and (D)(1); In re M., 1st Dist. Hamilton No. C-170008, 2017-
Ohio-1431, ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
First Prong—R.C. 2151.414(B)
{¶17} Under the first prong, the requisite R.C. 2151.414(B)(1)(a) through (e)
finding, Father properly concedes that R.C. 2151.414(B)(1)(d) is satisfied in this case.
R.C. 2151.414(B)(1)(d) involves a finding by the juvenile court that the “[t]he child
has been in the temporary custody of one or more public children services agencies *
* * for twelve or more months of a consecutive twenty-two month period[.]” For
purposes of calculating this time, this period runs from the earlier of the date that the
child was adjudicated dependent or 60 days from the date that the child was
removed from the home. R.C. 2151.413(D)(1). The earlier date for all three children
in this case was 60 days after the date they were removed from the home and placed
in the temporary custody of HCJFS. That date was April 1, 2017. Therefore, at the
time that HCJFS moved for permanent custody in June 2018, the children had been
in the temporary care of the agency for 14 months of the consecutive 22-month
period.
Second Prong—R.C. 2151.414(D)(1)
{¶18} Under the second prong, the trial court must determine whether
granting permanent custody to the agency is in the best interest of the child. See R.C.
2151.414(B)(1). Pursuant to R.C. 2151.414(D)(1), the court may find that permanent
custody is in the best interest of the child upon consideration of all relevant factors,
including: (a) the child’s relationships with the parents, siblings, foster caregivers,
and any other person who may significantly affect the child; (b) the wishes of the
child, as expressed directly by the child or through the child’s guardian ad litem, with
consideration granted for the child’s maturity; (c) the custodial history of the child,
including whether the child has been in the custody of a public child services agency
for 12 or more months in a consecutive 22-month period; (d) the child’s need for a
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OHIO FIRST DISTRICT COURT OF APPEALS
legally secure permanent placement; and (e) whether any of the factors in R.C.
2151.414(E)(7) to (11) apply in relation to the parents and child.
{¶19} In conducting the best-interest analysis “[n]o single factor is given
greater weight or heightened significance.” In re P., 1st Dist. Hamilton Nos. C-
190309 and C-190310, 2019-Ohio-3637, ¶ 35, citing In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶20} The first factor, R.C. 2151.414(D)(1)(a), addresses 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[.]” Father claims that the juvenile court did not fully appreciate the
bond that the children shared with him in its determination.
{¶21} Father testified that before Mother had passed away, the children
visited him up to three to four times a year, which included some school breaks and
weekends. However, the juvenile court’s determination that S.B. and H.B. “do not
have a strong emotional bond with father” is supported by the record. Prior to
Mother’s funeral in February 2017, Father had not seen his children since October
2016. After the funeral, Father did not have contact with the children for a 20-
month period. The court also recognized that S.B. and H.B. had displayed hesitation
in wanting to visit Father, which is supported by the guardian ad litem’s testimony,
as discussed below.
{¶22} The court also noted the accounts of Father’s visitation at the Family
Nurturing Center:
[Father] had to be redirected on multiple occasions. The redirection
was attempted to prevent new trauma to the children. Although the
children have been without a parent for years, [Father] informed the
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OHIO FIRST DISTRICT COURT OF APPEALS
children that he had adopted another child. His play with S.B. became
conflictual and he held his phone in the child’s face threatening to have
the foster parents come and get him. The child reacted so poorly to
this threat that he became angered and removed himself from the visit.
[Father] became angered because the child, in his view, was
controlling the visit. [Father’s] basketball play with [H.B.] had to be
redirected due to the risk of physical injury. At the post visit
processing the visitation observer state the father smelled of alcohol,
had “glossy” eyes, and kept repeating himself multiple times.
{¶23} The court recognized that F.B. had telephonic communication with
Father and has expressed a desired to be placed with Father. However, the court also
noted that Father provided inconsistent accounts on how often the telephone
communications occurred, and Father had not consistently visited with F.B. since the
end of 2018. Thus, while Father might have some bond with his children, the record
contains countervailing evidence against Father’s interaction and interrelationship
with the children.
{¶24} The juvenile court also took into account the wishes of the children,
through the position of the children’s guardian ad litem (“GAL”), who supported a
grant of permanent custody to HCJFS. See R.C. 2151.414(D)(1)(b). The GAL
emphasized Father’s abandonment of his children and the effect that that had on
them, particularly S.B. and H.B. She explained that S.B. and H.B. displayed
indifference and did not want to participate in the visits, and said that “[d]uring
numerous visits, the children would appear standoffish, fearful of their safety, or
become visibly upset as a result of Father’s comments and behavior.” The GAL noted
that both children have a significant bond with their foster families, and also that
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OHIO FIRST DISTRICT COURT OF APPEALS
they have made significant progress addressing medical and cognitive issues. For
example, she said that S.B. displayed more control over his emotions, while H.B. had
decreased instances of bed-wetting. With regard to F.B., the GAL noted that Father
testified that he had regular communication with her, but an agency caseworker
testified that he was not given the necessary passcode to speak with her while she
was residing at a treatment facility. F.B. indicated through her In re Williams
attorney that she desired placement with her father.
{¶25} Considering the custodial history of the children pursuant to R.C.
2151.414(D)(1)(c), the juvenile court found that the children were in the temporary
custody of HCJFS for over 12 months of a consecutive 22-month period, which as
discussed above, was supported by the record. The children had spent no
appreciable time living with their father in the last several years, during the time he
resided in Michigan.
{¶26} R.C. 2151.414(D)(1)(d) concerns “[t]he 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 [HCJFS].” The juvenile court concluded that Father
could not adequately care for the children, requiring a legally secure placement with
HCJFS, primarily due to the children’s need for ongoing mental-and-behavioral
health services. The record supports this conclusion. For example, through the case
plan Father was ordered to engage in individual therapy and he failed to do so
despite admittedly struggling with mental-health issues since he was a young child.
Additionally, up until the trial, Father was living in an apartment in which he could
not have his children living with him.
{¶27} R.C. 2151.414(D)(1)(e) requires the court to consider whether any
factor listed in R.C. 2151.414(E)(7) through (11) applies. The court found that (E)(10)
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applies because Father had abandoned his children “prior to his involvement in the
case in October 2018.” See R.C. 2151.414(E)(10) (“The parent has abandoned the
child.”). Under R.C. 2151.011(C), a child must be “presumed abandoned when the
parents of the child have failed to visit or maintain contact with the child for more
than ninety days, regardless of whether the parents resume contact with the child
after that period of ninety days.” As discussed above, the record of Father’s lack of
contact with his children supports the trial court’s finding of abandonment.
{¶28} Based on the foregoing, the record reflects that the juvenile court
engaged in proper consideration of the relevant statutory factors, finding by clear
and convincing evidence that the grant of permanent custody was in the children’s
best interest. Father’s second assignment of error is overruled.
Conclusion
{¶29} Accordingly, we affirm the judgment of the juvenile court.
Judgment affirmed.
M YERS and W INKLER , JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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