In re L.H. , 2023 Ohio 952 ( 2023 )

[Cite as In re L.H., 2023-Ohio-952.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: L.H. & L.H. JUDGES:
Hon. William B. Hoffman, P.J.
Hon. Patricia A. Delaney, J.
Hon. Andrew J. King, J.
Case Nos. 2022 CA 00094 & 2022 CA
00095
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
Nos. F2019-0660 & F2019-0664.
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2023
APPEARANCES:
For Plaintiff-Appellee State of Ohio For Father - H.H.
JENNY WELLS JERMAINE L. COLQUITT
Licking County Prosecuting Attorney 33 W. Main Street
Newark, Ohio 43055
KENNETH W. OSWALT
Assistant Licking County Guardian ad Litem
Prosecuting Attorney
20 S. Second Street – 4th Floor CEDRIC COLLINS
Newark, Ohio 43055 P.O. Box 564
Pickerington, Ohio 43147
For LCJFS
For Mother – T.T.
ROBERT ABDALLAH, ESQ.
20 South Second Street – 4th Floor RUTHELLEN WEAVER
Newark, Ohio 43055 542 S. Drexel Avenue
Bexley, Ohio 43209
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 2
Hoffman, P.J.
{¶1} In Licking App. Nos. 2022 CA 00094 and 2022 CA 00095, appellant H.H.
(“Father”) appeals the October 3, 2022 Opinion/Judgment Entry entered by the Licking
County Court of Common Pleas, Juvenile Division, which overruled Father’s objections
to the magistrate’s February 24, 2022 decision, adopted said decision as order of the
court, terminated Father’s parental rights with respect to his two minor child (“Child 1” and
“Child 2,” individually; “the Children,” collectively), and granted permanent custody of the
Children to appellee Licking County Job and Family Services (“LCJFS”).
STATEMENT OF THE CASE AND FACTS
{¶2} Father and T.T. (“Mother”) are the biological parents of the Children.1
LCJFS began its involvement with the family in November, 2019, after Mother and Child
2 tested positive for methamphetamine at Child 2’s birth. LCJFS had additional concerns
regarding Mother’s unstable mental health, her inability to meet the basic needs of the
Children, and Father’s incarceration.
{¶3} On November 22, 2019, the trial court issued an emergency ex parte order
of removal of Child 2. On November 25, 2019, LCJFS filed five complaints, one alleging
Child 2 was abused and dependent, and the other four alleging Child 1 and three other
siblings were dependent.2 Following an emergency shelter care hearing on November
25, 2019, Child 1 and Child 2 were placed in the temporary custody of LCJFS. The three
other siblings were placed in the temporary custody of their biological father. The trial
court appointed Attorney Cedric Collins as Guardian ad Litem (“GAL”) for the Children.
1 Mother is not a party to this Appeal.
2 The three other siblings are not subject to this Appeal.
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 3
{¶4} Following an uncontested adjudicatory hearing on January 30, 2020, the
trial court found Child 1 to be dependent and Child 2 to be abused and dependent, and
immediately proceeded to disposition. The trial court ordered the Children be placed in
the temporary custody of LCJFS. LCJFS filed a motion for permanent custody on October
20, 2020. After delays due to the COVID-19 pandemic and service issues, the motion
came on for final hearing on November 1 and 3, 2021.
{¶5} The following evidence was presented at the hearing.
{¶6} Michele Kennedy, currently an ongoing supervisor with LCJFS, testified she
was the ongoing social worker assigned to the family from December 13, 2019, until
October 6, 2020. Kennedy developed a case plan with the goal of reunification for the
family. Father’s case plan required him to establish paternity and participate in programs
available at the correctional facility to address his history of criminal behavior and
instability, including, inter alia, undergoing substance abuse and mental health
assessments and follow any treatment recommendations, parenting education, and
employment and educational services.
{¶7} Kennedy was unable to review the case plan with Father due to his
incarceration. Father was incarcerated at Noble Correctional Institution after he was
convicted of attempted aggravated robbery and weapons under disability. Father was
incarcerated throughout the pendency of the case and had a tentative release date of
August 16, 2023.
{¶8} While Kennedy was assigned to the family, Father mailed her three letters,
one on December 24, 2019, one on April 6, 2020, and one on May 4, 2020. The
December 24, 2019 letter was in response to a correspondence Kennedy sent to Father
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 4
advising him she was the ongoing social worker assigned to the family and explaining her
role as such. In the December 24, 2019 letter, Father asked Kennedy to look into his
brother, L.W., for placement of the Children. Kennedy attempted to contact L.W. by
telephone, but did not receive a response of any kind in return. In his April and May, 2020
letters, Father inquired about the Children and asked that the Children be returned to
Mother. Father’s paternal relative, K.H., contacted Kennedy about placement of the
Children. However, due to K.H.’s personal history of having her own children permanently
removed from her custody, LCJFS would not consider her for placement of the Children.
{¶9} Rebecca Inboden testified she was assigned as the ongoing social worker
for the family on October 6, 2020, after Kennedy was promoted to a supervisory role
within LCJFS. The case plan concerns, goals, and objectives remained unchanged.
Inboden indicated Father did not have contact with the Children at any point while she
was assigned to the family. Kelsey Weisenstein testified she was assigned as the
ongoing social worker for the family on September 1, 2021, after Inboden left LCJFS.
Weisenstein reviewed the case plan, but made no changes thereto.
{¶10} The GAL testified the Children are doing very well in their foster placement.
The GAL noted Child 1 is “really starting to excel.” Transcript of Proceedings, Vol. II at
364. The GAL explained Child 1 had speech difficulties when he was initially removed
from the home, but has made a lot of progress since being placed in foster care. Child 2
is meeting his milestones. The GAL opined it was in the Children’s best interest to grant
permanent custody to LCJFS.
{¶11} Father was called as if on cross-examination. Father stated he was
currently incarcerated and expected to be released in August, 2023. Father wished to
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 5
have the Children returned to Mother. Father indicated he speaks with Mother often,
however, he was unaware Mother was abusing illegal substances or had a history of drug
use. Father did not know if Mother was currently employed. On direct examination,
Father indicated he had completed an intentional living program and was participating in
a victim awareness program. Father completed the school for business management and
was in the school of carpentry at the time of the final hearing. Father was on a waitlist for
parenting classes. Father stated he and Mother are “not bad people,” but they both had
“made bad choices in life.” Tr., Vol. I at 60. Father added he and Mother “love our kids
dearly.” Id.{¶12} The magistrate issued her decision on February 24, 2022, recommending
Father’s parental rights be terminated and permanent custody be granted to LCJFS.
Father filed objections to the magistrate’s decision on March 9, 2022. Via
Opinion/Judgment Entry filed October 3, 2022, the trial court overruled Father’s objections
and adopted the magistrate’s decision as order of the court. The trial court found the
Children cannot or should not be placed with Father within a reasonable time, Father had
abandoned the Children, and granting permanent custody to LCJFS was in the Children’s
best interest.
{¶13} It is from this judgment entry, Father appeals.
{¶14} In Licking App. Nos. 2022 CA 00094 and 2022 CA 00095, Father raises the
following identical assignment of error:
THE TRIAL COURT’S DECISION GRANTING PERMANENT
CUSTODY OF [THE CHILDREN] TO LCDJFS IS NOT SUPPORTED BY
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 6
CLEAR AND CONVINCING EVIDENCE. THE AGENCY DID NOT PROVE
THAT [THE CHILDREN] CANNOT OR SHOULD NOT BE PLACED WITH
PARENTS WITHIN A REASONABLE TIME, AND DID NOT PROVE THAT
GRANTING THE MOTION WAS IN THE CHILDREN’S BEST INTEREST.
{¶15} These cases come to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
LICKING APP. NO. 2022 CA 00094
I
LICKING APP. NO. 2022 CA 00095
I
{¶16} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by
some competent, credible evidence going to all the essential elements of the case will not
be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr. (1978), 54 Ohio St.2d 279.
{¶17} 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 or private child placing agency that has
temporary custody of the child or has placed the child in long term foster care.
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 7
{¶18} 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 on or after March 18,
1999.
{¶19} 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, the 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.
{¶20} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 8
R.C. 2151.414(E)
{¶21} Father argues the trial court’s findings he “failed continuously and
repeatedly to substantially remedy the conditions causing [the Children] to be placed
outside [the Children's] home,” R.C. 2151.414(E)(1), and “demonstrated a lack of
commitment toward [the Children] by failing to regularly support, visit, or communicate
with [the Children] when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for [the Children],” R.C. 2151.414(E)(4), were not
supported by clear and convincing evidence.
{¶22} We note the aforementioned findings by the trial court relate to Mother, not
Father. Because the trial court’s R.C. 2151.414(E)(1) and R.C. 2151.414(E)(4) findings
pertain to Mother and not Father, we need not address Father’s arguments such findings
as to him were not supported by clear and convincing evidence. Father further asserts
the trial court’s findings with respect to Mother are also not supported by clear and
convincing evidence.
{¶23} As a general rule, a party ordinarily cannot appeal an alleged violation of
another party's rights. However, “[a]n appealing party may complain of an error committed
against a nonappealing party when the error is prejudicial to the rights of the appellant.”
In re Smith, 77 Ohio App.3d 1, 13, 601 N.E.2d 45 (6th Dist. 1991). Accord, In re Hiatt, 86
Ohio App.3d 716, 721, 621 N.E.2d 1222 (4th Dist. 1993). In other words, an appellant
may complain of an error committed against a non-appealing party when the error
injuriously affects the appellant.
{¶24} Assuming, arguendo, Father has standing to challenge the trial court’s
findings in support of the terminations of Mother’s parental rights, we find Father has not
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 9
demonstrated the trial court erred. The record is replete with evidence Mother failed to
make significant progress on her case plan. Mother had on-going mental health and
substance abuse issues, repeatedly tested positive for methamphetamine and
amphetamine, failed to complete any substance abuse treatment program, abused
methamphetamine while pregnant with her sixth child during the pendency of the
proceedings, and, overall, was unwilling to utilize the case plan services provided.
Accordingly, we find Father's arguments on behalf of Mother lack merit.
{¶25} Father also contends LCJFS did not engage in reasonable case planning
or make diligent efforts to facilitate reunification. Father explains LCJFS refused to
facilitate visitation between him and the Children, noting the magistrate ordered no
visitation between Father and the Children and indicated the issue could be addressed
upon his release from incarceration. Father adds LCJFS failed to review the case plan
with him. Father submits the trial court, nonetheless, blamed him for not having a
relationship with the Children.
{¶26} Father’s own actions resulted in his incarceration and, thus, his inability to
visit the Children. “Reasonable efforts” does not mean “all available efforts.” In re J.B.,
8th Dist. Cuyahoga No. 109039, 2020-Ohio-3675, ¶ 21 (Internal quotations and citation
omitted). In determining whether reasonable efforts were made, “the child's health and
safety shall be paramount.” R.C. 2151.419(A)(1). The Children were both under the age
of three at the time of the filing of the motion for permanent custody. We do not believe
visitation at a correctional facility would be appropriate.
{¶27} The trial court found the Children could not or should not be placed with
Father within a reasonable time as he had abandoned the Children, pursuant to R.C.
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 10
2151.414(E)(10), and he was “incarcerated at the time of the filing of the motion for
permanent custody or the dispositional hearing of the child and [would] not be available
to care for [the Children] for at least eighteen months after the filing of the motion for
permanent custody or the dispositional hearing,” pursuant to R.C. 2151.414(E)(12).
Father does not challenge the trial court’s R.C. 2151.414(E)(10) and R.C.
2151.414(E)(12) findings. Nonetheless, upon review of the entire record, we find such
findings were supported by clear and convincing evidence.
BEST INTEREST
{¶28} “The discretion which the juvenile court enjoys in determining whether an
order of permanent custody is in the best interest of the child should be accorded the
utmost respect, given the nature of the proceeding and the impact that court's
determination will have on the lives of the parties concerned.” In re Mauzy Children, 5th
Dist. Stark No. 2000CA00244, 2000 WL 1799973, citing In re Awkal, 85 Ohio App.3d 309,
642 N.E.2d 424 (8th Dist. 1994).
{¶29} When determining the best interest of a child pursuant to R.C. 2151.414(D),
the juvenile court must consider all relevant factors, including the custodial history of the
child, the interaction and interrelationships of the child, the child's wishes, the need for
permanence in the child's life, and whether any of the factors set forth in R.C.
2151.414(E)(7) to (11) apply to the facts of the case. R.C. 2151.414(D)(1); In re R.G., 9th
Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11. R.C. 2151.414(E)(10), “[t]he
parent has abandoned the child,” is one of the factors set forth in R.C. 2151.414(E)(7) to
(11) and applies to the facts of this case.
{¶30} R.C. 2151.011(C) defines the term “abandonment” as follows:
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 11
For the purposes of this chapter, a child shall 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.
{¶31} This provision creates a presumption of abandonment, which may be
rebutted. In re S.B., 183 Ohio App.3d 300, 2009-Ohio-3619, 916 N.E.2d 1110.
{¶32} The record establishes Father was incarcerated at the time the Children
were removed from Mother’s care in November, 2019, and remained so as of November
3, 2021, the last day of the hearing on LCJFS’s motion for permanent custody. Father’s
last contact with Child 1 was in August, 2019. Father had never met Child 2. In 2020,
Father sent birthday and Christmas cards to the Children. Father did not have any contact
with the Children from January 1, 2021, through November 3, 2021, well over the period
of 90 days proscribed in R.C. 2151.011(C).
{¶33} The record further demonstrates the Children are together in the same
foster home with their sibling who was born during the pendency of this matter. The
Children are doing well and all of their needs are being met. At the time of removal, Child
1 was 15 months old and was non-verbal. The foster parents have engaged Child 1 in
speech and occupational therapy. Child 1 has made significant progress and now speaks
in full sentences. Child 1 was diagnosed with reactive attachment disorder and displays
aggressive behaviors. The foster parents have engaged him in behavioral therapy and
Child 1 is making progress. The Children are bonded with each other and with their foster
parents. The foster parents wish to adopt the Children. There is no bond between Father
Licking County, Case Nos. 2022 CA 00094 & 2022 CA 00095 12
and the Children. The GAL recommended permanent custody of the Children be granted
to LCJFS. Further, the Children need a legally secure placement and such cannot be
achieved without a grant of permanent custody to LCJFS.
{¶34} Based upon the foregoing and the entire record in this matter, we find the
trial court's findings the Children could not or should not be placed with Father within a
reasonable time and it was in the Children's best interest to grant permanent custody to
LCJFS were not against the manifest weight of the evidence.
{¶35} Father’s sole assignments of error in Licking App. Nos. 2022 CA 00094 and
2022 CA 00095 are overruled.
{¶36} The judgment of the Licking County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, P.J.
Delaney, J. and
King, J. concur