In re I.R. , 2021 Ohio 3103 ( 2021 )

[Cite as In re I.R., 2021-Ohio-3103.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE I.R. :
: No. 110410
A Minor Child :
:
[Appeal by Father, A.W.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 9, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD20910278
Appearances:
Matthew O. Williams, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young and Zachary J. Lafleur,
Assistant Prosecuting Attorneys, for appellee.
EILEEN A. GALLAGHER, J.:
Appellant-father A.W. (“Father”) appeals from the decision of the
Juvenile Division of the Cuyahoga County Court of Common Pleas (“the juvenile
court”) terminating his parental rights and granting permanent custody of his minor
son, I.R., to the Cuyahoga County Division of Children and Family Services
(“CCDCFS” or “the agency”). For the reasons that follow, we affirm.
Factual Background and Procedural History
I.R. was born on August 22, 2017. His mother, A.R. (“Mother”) had
two other children — a daughter and a son. Approximately six days after his birth,
I.R. was removed from Mother’s custody, was committed to the custody of CCDCFS
and was placed in a foster home with his siblings. I.R. remained in the foster home
until March 2020. On March 4, 2020, the juvenile court granted Father legal
custody of I.R.
In late August 2020, CCDCFS received a report that I.R. may have
been abused. The agency investigated the report and, on September 1, 2020, it filed
a complaint for abuse, dependency and permanent custody and a motion for
predispositional temporary custody in the juvenile court (Cuyahoga C.P. Juv. No.
AD20907424). The complaint alleged that on or about August 31, 2020, I.R. was
“observed with various bruises around his neck,” that Father “uses excessive and
inappropriate physical discipline with the child” and that Father “has mental health
issues and anger management problems which prevent him from providing a safe
and adequate home for the child.” The complaint also alleged that I.R. had been
previously adjudicated abused and dependent in Cuyahoga C.P. Juv. No.
AD18902334 and that he had been in the custody of the agency from August 28,
2017 until March 4, 2020. With respect to Mother, the complaint further alleged
that Mother had failed to communicate with I.R. since birth, that she had mental
health and anger management issues that prevented her from providing a safe and
adequate home for I.R. and that she had two other children who had been
committed to the permanent custody of CCDCFS due, in part, to Mother’s mental
health and anger management issues.
Following a hearing, the juvenile court committed I.R. to the
emergency custody of CCDCFS. I.R. was then placed with the foster family with
whom his two siblings were then living and with whom he had been placed when he
was previously in agency custody.
CCDCFS submitted a case plan that required Father to attend
parenting classes with a focus on age-appropriate discipline and interactions and to
undergo a mental health assessment and comply with any recommended mental
services.
In early December 2020, the juvenile court dismissed the complaint
because it was not resolved within the statutory time frame. The agency refiled the
complaint, along with another motion for predispositional custody, on December 7,
2020.
Emergency Custody Hearing
On December 8, 2020, the juvenile court held a second emergency
custody hearing. CCDCFS supervisor, Kesha Sing, testified at the hearing. Sing
indicated that the case was initiated in late August 2020 after the agency received a
report that Father was using excessive discipline that resulted in “marks and
bruises” on I.R. Short-term CCDCFS social worker, Kawana Johnson, whom Sing
supervised, went to Father’s house to investigate. Sing stated that when Johnson
arrived at Father’s home, Father told Johnson I.R. was not at home, but that, shortly
thereafter, a third party contacted Johnson and told her that I.R. had, in fact, been
in Father’s home at the time of Johnson’s visit. Sing testified that she instructed
Johnson to go back to the home immediately with police. Sing stated that when
Johnson returned to the home, I.R. was observed with marks and bruises. Sing
testified that Father then admitted using inappropriate discipline with I.R., that
Father had stated that he believed his “discipline technique” may have been
attributable to own unaddressed childhood trauma and that Father had “expressed
remorse” for his actions. Sing indicated that I.R. had previously been in agency
custody with his siblings “due to mom having some ongoing issues that she couldn’t
remedy.” Sing stated that Mother’s current whereabouts were unknown.
Sing testified that when I.R. was previously in agency custody, Father
had worked with the Father’s of Initiative program, had completed a parenting
program and had engaged in (but not completed) a substance abuse program. Sing
indicated that the agency’s concerns in the current case related to parenting,
excessive discipline, poor judgment, unaddressed trauma and Father’s housing
situation. Sing stated that at the time of the incident, Father was living with a
girlfriend and that the girlfriend had recently informed Father he could not continue
to live there.
Sing testified that she did not believe, at that time, that I.R. would be
safe in Father’s care because Father had not demonstrated that he had sufficient
skills to “deal with the behavior of an average three-year-old child.” She stated that
she believed that Father’s use of inappropriate discipline with I.R. was “chronic”
based on information obtained during collateral contact with other members of the
household, a direct account from I.R., who was very articulate, and Father’s
admission at a team determination meeting that he used discipline “often” with I.R.
and that that was “his way of responding to [I.R.] at times.”
Sing testified that I.R. did not require hospitalization and that he was
examined by medical professionals following the incident and found to have eczema.
Sing indicated that I.R. was “[e]xtremely comfortable” in the foster home with his
siblings.
Following the hearing, the juvenile court, once again, committed I.R.
to the emergency custody of CCDCFS and again placed I.R. with the same foster
family with whom his two siblings were living.
On February 19, 2021, the agency conducted a semiannual
administrative review (“SAR”). A copy of the SAR report was filed with the court on
March 2, 2021. According to the SAR report, Father participated in the SAR via
telephone. The SAR report indicates, with respect to Father:
[Father] is currently attending Nurturing Parenting classes through
Ohio Guidestone and reports that he has attended two individual
classes and 1 group session. He reports that his second group session
is tomorrow and it is virtual. He was requested to complete a mental
health assessment through juvenile court and has missed two
scheduled appointments. He reports that he plans on calling on
Monday morning to reschedule. He has also been referred to the
Fatherhood Initiative and he states that he left a voicemail message
yesterday and is awaiting a return call. Currently, the visitation is
biweekly and virtual for [Father], however [I.R.] is currently not
wanting to have visits with his father. Agency staff continue to bring
visitation up to [I.R.] during visits and will assess his comfort level
going forward. Father reports a desire to see or speak with his son.
The “Concern Review” portion of the report indicates that Father had
made “[s]ome [p]rogress” towards addressing the issues that impacted Father’s
ability to parent and support I.R. but that the “risk level” was “high” or “moderate,”
at least in part, because Father “has not admitted what happened” to I.R.:
Dad has been engaged in [p]arenting education. There have been
positive reports from his parenting coach[;] as of now this [worker of
record] has not seen him interact with [I.R.] to monitor progress
towards behavior changes.
***
At this time it will be in the best interest of [I.R.] that the agency remain
involved and he remain in care. [Father] has not completed case
services nor shown the desired behavioral changes to ensure [I.R.’s]
safety if he were to return home. At this time the risk level is high and
dad has not admitted what happened to [I.R.] The agency has filed for
permanency and [I.R.’s] foster mother wants to adopt him. Foster
mother has care[d] for [I.R.] since he was born until he was 3 when
[Father] was given custody of him. Foster mom is also the adoptive
parent to [I.R.’s] two older siblings. At this time the risk level is
moderate but dad has not admitted what happened that day.1
Adjudicatory Hearing
An adjudicatory hearing was held on March 3, 2021. At the outset of
the hearing, Father’s counsel made an oral motion to compel the production of
certain activity log notes the agency had failed to produce in discovery. CCDCFS
acknowledged that it did not produce “investigative notes” by Johnson, i.e., notes
that contain information about referents and interviews with family members,
1 Although the SAR report indicates that the agency had “filed for permanency”
with hearing dates in March 2021, it also states as its “[c]urrent [p]ermanency [g]oal,”
“[p]ermanent [p]lacement with [r]elative” and identifies August 19, 2021 as the
“estimated date to achieve the updated permanency goal.”
arguing that such records are “confidential” under Ohio law. The agency indicated
that, in connection with its document production one month earlier, it had advised
Father’s counsel that the investigative notes would not be disclosed. The agency
stated that although Father could have filed a motion to compel and requested that
the court conduct an in camera review of the documents that had been withheld,
Father did not raise the issue until the night before the hearing and that, to the extent
the notes contained information related to Father, Father had access to that
information from other sources.
Father’s counsel acknowledged that he had information regarding the
allegations against him from other sources, including police reports, but claimed
that the notes were necessary for impeachment purposes in the event that Johnson
had a note “that’s different from what her testimony might be about what [Father]
said.” The juvenile court denied the motion. Father’s counsel then moved to
preclude Johnson from testifying at the hearing “about anything that occurred”
during the time period covered by the notes that had not been produced. Once
again, the juvenile court denied the motion.
Johnson and Lelonna Ferguson, an extended-term social worker for
CCDCFS, testified on behalf of CCDCFS at the adjudicatory hearing. Johnson
testified that in late August 2020, she went to Father’s home, which he shared with
his girlfriend and her children in Euclid, Ohio, after the agency received a referral
alleging physical abuse of I.R. She stated that when she arrived at the home, Father
told her that I.R. was with his paternal aunt and that he had been with her the
previous day, too. Father denied any physical abuse of I.R. but stated that I.R. had
scratches on his cheeks and neck due to “bad eczema.” Father also volunteered that
I.R. would have scratches on his neck because he had recently grabbed I.R. by the
back of his hoodie, “where the zipper or something scratched him,” to prevent him
from being hit by a car when I.R. ran into the street when he and Father were
walking to the store.
Johnson stated that she conducted a walk-through of the home,
checking every room except for the adults’ bedroom. Father’s girlfriend was also at
home during Johnson’s visit. Johnson asked to see her. Johnson testified that
Father opened the door to the bedroom and the girlfriend, who was “not fully
dressed,” briefly stepped halfway out of the room into the hallway. Johnson could
not see into the bedroom and did not hear anything that would suggest that there
was a child in the adults’ bedroom. Johnson stated that she told Father she needed
to see I.R. that day. Father told Johnson that I.R.’s paternal aunt was scheduled to
bring I.R. back between 6:00 p.m. and 7:00 p.m. that evening.
Johnson testified that although Father told her I.R. was not at home
during her visit, she later learned that I.R. had been there the entire time. After
receiving a call from a referent advising her that I.R. had been at home with Father
during the visit, Johnson called I.R.’s paternal aunt. The aunt confirmed that I.R.
had not been in her care that day or the previous day. After making several
unsuccessful attempts to reach Father by phone, Johnson stated that she felt
“uneasy,” “like something was going on” because “dad wasn’t being truthful,” so she
went to the Euclid police station and requested assistance in conducting a second
face-to-face visit with Father.
When Johnson returned to Father’s residence with the police, Father
answered the door and stated that I.R. had just arrived home. Johnson told Father
that she needed to see I.R. Father went upstairs to get him. After several minutes,
Father came back downstairs with I.R.
Johnson testified that I.R. immediately ran towards her. Johnson
picked I.R. up and placed him on the dining room table so that she could examine
him. Johnson testified that she saw several marks, i.e., bruises and some scratches
on both sides of his neck and the middle of his throat, and that she took several
photographs of I.R. Johnson stated that she did not see anything that, in her
opinion, would have been caused by a zipper. Johnson stated that I.R. made several
statements to her that were “alarming” and that she decided to immediately remove
I.R. from the home.
Johnson testified that she confronted Father with the statements I.R.
had made and that Father was initially “irate” and denied any abuse, stating that he
had told her “how this happened” and that I.R. “would have these marks.” She
stated that after confronting Father with pictures the agency had received from a
referent that showed I.R. with “a busted lip and marks on his face,” Father calmed
down, “kind of just [went] with whatever was happening at that time” and said he
has “anger management issues” and “sometimes he disciplines in a way that is
inappropriate.”2 Johnson testified that Father was “upset” and crying when he
learned I.R. was going to be removed from his custody but ultimately complied and
gathered up I.R.’s belongings. Johnson indicated that Father was charged with child
endangering as a result of the incident.
Johnson testified that I.R. had been in foster care since he was
“roughly six days old” until March 2020. Johnson stated that, at that time, the
agency had recommended that I.R. remain in the foster home, where he was living
with his two older siblings who had been previously committed to the permanent
custody of CCDCFS but that the juvenile court had, instead, granted Father legal
custody of I.R.
Ferguson testified that she was the case worker assigned to I.R.’s case
after Johnson. She stated that I.R. initially came into agency custody in 2017 due to
Mother’s drug use and undiagnosed mental health issues. Ferguson indicated that
Mother had had no consistent involvement with I.R. during the initial time I.R. was
in agency custody and that the agency has had no communication with Mother since
late August or early September 2020.
Father presented no witnesses. After the parties rested, Father’s
counsel requested that the allegations that Father has mental health issues be
stricken from the complaint because no evidence was presented to support those
allegations. The juvenile court agreed, stating: “[T]here wasn’t any evidence
2 The juvenile court admitted photographs Johnson had taken of I.R. but excluded
from evidence photographs others had allegedly taken of I.R.’s injuries.
submitted suggesting that the father has mental health issues, but an admission by
dad’s statement to the social worker that he has anger management problems, so
the Court will strike the mental health issues and indicate that there’s been clear and
convincing evidence suggesting the anger management problems with dad are
preventing him from providing a safe and adequate home for the child.” The
juvenile court further stated that Father’s claim that a zipper from his hoodie cut
I.R. when Father tried to prevent him from running into the street did not make “any
sense” and that the agency had proven that Father had used excessive and
inappropriate physical discipline with I.R. The juvenile court found that the agency
had met its burden of proof by clear and convincing evidence and I.R. was
adjudicated to be an abused and dependent child.
Dispositional Hearing
On March 4, 2021, the case proceeded to disposition. Johnson,
Ferguson and T.J., I.R.’s foster mother (“Foster Mother”), testified on behalf of
CCDCFS at the dispositional hearing. At the time of the dispositional hearing, I.R.
was three-and-one-half years old.
Johnson testified that after I.R. was taken into agency custody in
September 2020, he spent one night at a foster home in Parma then was transferred
to his current foster home, where I.R. had been previously placed, and where I.R.
was currently residing with his two older siblings. Johnson stated that when I.R.
arrived at the foster home, “it was just a glow and a delight like never seen before in
a three-year-old child.” Johnson stated that I.R. “ran and hugged everyone” and
that he and his brother “literally tumbled over and hit the floor in laughter,” “[s]o
excited to see each other.” Johnson testified that, to her knowledge, I.R. had not had
any physical interaction or communication with Foster Mother or his siblings after
he was placed in Father’s custody in March 2020.
Johnson stated that she continued handling the case for
approximately three months after the agency took custody of I.R. She stated that,
during this time, Father was having “some phone issues” “on and off” and that she
would lose contact with Father for a time and then Father would be back in contact,
stating that his phone was “up and running again.”
Johnson stated that, during the time she was handling the case, I.R.
and Father had one “face-to-face visit.” She indicated that that it took 30 to 45
minutes before she and I.R. left the foster home for the visit because I.R. “would not
calm down” and did not want to visit Father. Johnson testified that when they
arrived at the Jane Edna Hunter Building for the visit, I.R. was “uncomfortable,”
“very nervous” and “[w]ouldn’t take his eyes off [Johnson].” Johnson stated that the
visit was scheduled for two hours but that it only lasted a little over an hour because
Father stated that he needed to leave early. Johnson indicated that Father’s
behavior was appropriate during the visit.
Johnson stated that due to the pandemic, CCDCFS had difficulty
locating places to conduct in-person visits, so the agency scheduled virtual,
telephone “visits.” Johnson testified that Father was made aware that virtual visits
were an option but that Father “wasn’t available” for those types of visits. She
explained that due to Father’s phone issues, she “wasn’t always able” to contact
Father by phone, so she “could never set up anything solid.” She stated that she did
set up one visit by phone with Father in December 2020, but that I.R. did not want
to engage.
Ferguson testified that she was assigned to I.R.’s case in mid-to-late
November 2020 and that she immediately reached out to Father, Mother and Foster
Mother. She stated that she was able to make contact with Father and Foster
Mother, but that Mother never returned her calls.
Ferguson testified that the agency’s case plan included counseling for
I.R. and parenting classes and mental health services for Father. Ferguson related
that I.R. began attending virtual counseling sessions at Ohio Guidestone in January
2021.
With respect to the case plan services for Father, Ferguson stated that
a referral was made for parenting classes, so Father could “develop better parenting
techniques” and that mental health services were part of the case plan because
Father had stated that he had “untreated trauma from when he was little” that “he
kind of thinks is affecting him now.”
Ferguson testified that that Father had begun attending a nine-week
telephonic parenting program at the end of January 2021 and that, as of the date of
the hearing, Father had attended “[l]ike three or four classes.” Ferguson stated that
she had tried to get Father engaged in parenting classes earlier but that Father was,
at one point, in the hospital and, at another point, had issues with his phone such
that Ferguson could not get in contact with him. Ferguson indicated that a referral
had been made for Father to attend parenting classes during the prior period in
which the agency had custody of I.R. but that Father did not complete them.
With respect to mental health services, Ferguson testified that a
mental health assessment was scheduled for December 30, 2020 at the Juvenile
Court Diagnostic Clinic, but that Father did not appear for the assessment.
Ferguson did not know why Father did not attend the assessment. Ferguson stated
that, to her knowledge, mental health services were not part of the case plan for
Father in the prior case.
Ferguson stated that Father is employed and lives with his
godmother, that the home is appropriate and that there is adequate space there for
I.R. if he were to be returned to Father’s care. Ferguson indicated that until mid-
December 2020, Father contacted her weekly to check on I.R. but that after that
time, she had had difficulty reaching him and it was “hit or miss” as to whether
Father responded to her calls or text messages. She stated that she had scheduled
several in-person appointments with Father to see how things were going and to “be
there to support him if he need[ed] anything,” but that Father had not kept the
appointments for various reasons, i.e., because he was running errands with a family
member, he was “busy” or he was not feeling well.
With respect to visitation, Ferguson stated that “virtual visits” were
available to Father but had not occurred because I.R. refused to participate.
Ferguson stated that Mother has never contacted her about I.R. and has never
visited with him.
Ferguson testified that I.R. is “doing so good” in his foster placement,
has no special needs, is attending day care and is bonded with Foster Mother and
his siblings. She stated that I.R. calls Foster Mother “mom,” that he runs to her for
comfort and that his face “lights up” when he talks about her. She indicated that
Foster Mother wants to adopt I.R.
With respect to why the agency was requesting permanent custody as
opposed to seeking temporary custody of I.R., Ferguson stated that it was due to (1)
“the inconsistency in the case plan before and case services not being completed,”
(2) the fact that “[t]he visits weren’t always had” and “there’s always been a reason
why dad couldn’t complete this or finish that for one reason or another” and (3) I.R.
had previously been in this foster home since he was born, i.e., “[i]t’s his stability.”
Ferguson stated that she believed it was in I.R.’s best interest to be committed to the
permanent custody of the agency because “he’s been in care almost his entire life,”
“[h]e needs a safe stable place to be at” and “he needs to be with his family.”
Foster Mother testified that her home was a certified foster home and
that she had already adopted I.R.’s two siblings. She stated that when I.R. was
returned to her care in September 2020, the children were “so happy” and “so
excited,” “like three little peas doing so much with each other,” “[p]rotecting each
other.” Foster Mother indicated that she was bonded with I.R., that he was “a joy to
have” and that it was her intention to adopt I.R. if he was committed to the
permanent custody of the agency.
Foster Mother testified that she noticed significant changes in I.R.
from the time he was removed from her care in March 2020 until he was returned
to her care in September 2020. She stated that when I.R. first returned, he was
“nervous” and “frightened,” “looking around at people, looking for someone.” He
kept asking, “Am I staying here? Do I stay here? Can I stay here?” and could not
keep food down for several days. She stated that he was also “angry,” that he would
“constantly hit on” his brother and that he would kick and scratch at Foster Mother
when she tried to take him upstairs for a nap, stating, “No, no. I don’t want to go
upstairs.” Foster Mother reportedly assured I.R. that no one was going to hurt him,
that she loved him and that he was going to be okay. She stated that I.R. had never
acted out like when he had been previously in her care and that this behavior
subsided as he continued in her care.
Foster Mother stated that, during the time I.R. resided with Father,
she and his siblings had some, limited communication with I.R. but that they had
no face-to-face contact with him.
Foster Mother testified that I.R. has said that he does not want to visit
with Father, that he does not want to leave her home and that he does not want to
go back to Father. She stated that on days I.R. is supposed to have a virtual visit
with Father, he is “a little bit more anxious” and does not want to eat.
Father did not present any witnesses at the permanent custody
hearing. His counsel requested that the juvenile court commit I.R. to the temporary
custody of CCDCFS, rather than grant the agency permanent custody, so that Father
could continue to work on his case plan.
Guardian Ad Litem’s Report and Recommendation
On March 1, 2021, the guardian ad litem filed a written report with
the juvenile court in which he recommended that the agency be granted permanent
custody of I.R. The guardian ad litem reported that he had made multiple attempts
to contact Mother and Father by telephone and via letter but that he was not
successful in reaching them.
After the parties rested, the guardian ad litem testified regarding his
recommendation that I.R. be committed to the permanent custody of the agency.
The guardian ad litem reported that I.R. was bonded with his siblings and Foster
Mother and that I.R. had indicated to him that he wished to stay with Foster Mother
and his siblings. The guardian ad litem stated that, because he had been unable to
reach Father, he could not speak to the condition of Father’s home or to any
interaction or bond between Father and I.R. The guardian ad litem indicated that
he had attempted to speak with I.R. about visiting with Father but that I.R. seemed
“withdrawn” and did not want to talk about it. The guardian ad litem stated that
“[g]iven the history of the case,” he believed it was in I.R.’s best interest for
permanent custody to be granted to the agency.
The Juvenile Court’s Decision to Grant Permanent Custody of I.R.
to CCDCFS
At the conclusion of the hearing, the juvenile court announced its
findings on the record. The juvenile court found that CCDCFS had established, by
clear and convincing evidence, that (1) I.R. could not be placed with either of his
parents within a reasonable time or should not be placed with either parent and (2)
it was in I.R.’s best interest to be committed to the permanent custody of the agency.
As it relates to Father, the juvenile court explained its findings as follows:
Dad has not abandoned him. That’s clear in the fact that, you
know, he has visited [I.R.] once, but despite the fact that he has visited
him once and there may be — may have been attempts at other visits
through other electronic means, they weren’t consistent. And that’s
evidenced by the social worker’s testimony.
What’s also been inconsistent is — and that goes to a lack of
commitment from the dad — is his engagement with case plan
services.
Yes, he has completed three weeks of parenting, but according to
— I think it’s Ms. Ferguson, she gave him the referral when she got the
case, and that was back in November, early part of December. He
waited until almost three or four weeks expired before he decided that
he’s going to start engaging in the parenting classes.
And what’s even more troubling is the mental health, with his
admission that he has suffered some trauma that has not been dealt
with, so it’s a recognition on his part that he has mental health issues
that can interfere in his ability to provide appropriate care for [I.R.],
and notwithstanding * * * an appointment on December 30th for him
to come to the Juvenile Court for a diagnostic assessment, he didn’t
show up. And he still hasn’t completed that assessment.
And I think that also causes some alarm for the Court because
not only his claim — or his individual report about past trauma, but I
think the testimony from yesterday was about him indicating, Yeah, I
recognize I’ve got anger management issues.
And that particular statement was made after showing him
pictures of [I.R.] and injuries that had been caused to him with dad
being the perpetrator — or alleged perpetrator at that point.
And so, you know, that’s an issue, too, for the Court in terms of
lack of commitment.
When we look at some of the other factors, commit an act of
abuse. The Court has already made that determination, that, in fact, it
was dad who was responsible for the injuries to [I.R.] and the Court did
not find that those were justified injuries in an attempt to have [I.R.]
avoid other harm. * * *
And so when you couple that with everything that the Court has
previously stated, and the fact that the Guardian ad Litem has
recommended that it is in [I.R.’s] best interest to be placed in the
permanent custody of the Division of Children and Family Services,
and the need for this child to have permanency. * * *
One final thing that the Court can use as a factor in making a
decision in this case, what are the wishes of the child?
And here while we have the Guard ad Litem * * * who indicated
that the child expressed to him that he wanted to remain with his foster
mother and in his foster home with her and his siblings, he also
indicated just by his behavior that he does not want to live with his
father any longer, and apparently, is fearful that that is expressed in his
refusal * * * to want to engage in phone conversations with his father,
and being anxious and nervous when he had to even go to the one visit
to see his father.
That is the physical manifestation of this child’s desire not to
return to an environment that he does not believe is safe.
And so the Court is going to find that the child cannot be placed
with either parent, that includes both mom and dad, within a
reasonable time or should not be placed with either parent within that
time. And that’s clear and convincing evidence that * * * the Agency
has been able to establish with this Court.
And the Court also finds that it is in [I.R.’s] best interest to be
placed in the permanent custody of the Division of Children and Family
Services.
On March 5, 2021, the juvenile court issued a journal entry
terminating the parental rights of Mother and Father and committing I.R. to the
permanent custody of CCDCFS. The trial court set forth its findings, announced at
the hearing, that I.R. could not be placed with either of his parents within a
reasonable time or should not be placed with either parent and that it was in I.R.’s
best interest to be committed to the permanent custody of the agency.
With respect to its determination that I.R. could not be placed with
Father within a reasonable time or should not be placed with Father, the juvenile
court specifically found:
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.
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.
The juvenile court stated: “[F]ather has not completed case plan
services; father has not engage[d] with any referrals for his mental health
assessments or counseling and father stated that he has suffered past trauma and
did not address or remedy any of those [sic] past history of said trauma.”
In determining that permanent custody was in I.R.’s best interest, the
juvenile court indicated that it considered:
the interaction and interrelationship of the child with the child’s
parents, siblings, relatives, and foster parents; the wishes of the child;
the custodial history of the child, including whether the child has been
in temporary custody of a public children services agency or private
child placing agency under one or more separate orders of disposition
for twelve or more months of a consecutive twenty-two month period;
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; and the report of the Guardian ad Litem.
The juvenile court also found that CCDCFS had made reasonable
efforts to prevent removal of I.R., to eliminate the continued removal of I.R. from
the home or make it possible for I.R. to return home and to finalize the permanency
plan as it related to Father.
Father appealed, raising the following two assignments of error for
review:
First Assignment of Error: The trial court’s award of permanent
custody and termination of appellant’s parental rights is against the
manifest weight of the evidence.
Second Assignment of Error: Appellant was denied effective assistance
of counsel and prejudiced thereby.
Law and Analysis
The Juvenile Court’s Decision to Grant Permanent Custody to
CCDCFS
In his first assignment of error, Father argues that the juvenile court’s
decision to commit I.R. to the permanent custody of CCDCFS was not supported by
clear and convincing evidence and was against the manifest weight of the evidence.
The right to raise one’s own child is “‘an essential and basic civil
right.’” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In
re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52
Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990) (a parent has a “‘fundamental liberty
interest’ in the care, custody, and management” of his or her child), quoting
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
However, this right is not absolute. It is “‘always subject to the ultimate welfare of
the child, which is the polestar or controlling principle to be observed.’” In re L.D.,
2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59
Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
Because termination of parental rights is “‘the family law equivalent
of the death penalty in a criminal case,’” In re J.B., 8th Dist. Cuyahoga No. 98546,
2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368,
776 N.E.2d 485, ¶ 14, it is “an alternative of last resort,” In re Gill, 8th Dist. Cuyahoga
No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when necessary for
the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694,
2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812(9th Dist.1994). “‘All children have the right, if possible, to parenting from either
natural or adoptive parents which provides support, care, discipline, protection and
motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio App.3d 88, 102,
696 N.E.2d 1090 (8th Dist.1996). Where parental rights are terminated, the goal is
to create “a more stable life for the dependent children” and to “facilitate adoption
to foster permanency for children.” In re N.B. at ¶ 67, citing In re Howard, 5th Dist.
Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, 5 (Aug. 1, 1986).
Standard for Terminating Parental Rights and Granting
Permanent Custody to CCDCFS
An agency may obtain permanent custody of a child in two ways. In
re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 44 (8th Dist.), citing In re E.P., 12th Dist.
Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An
agency may first obtain temporary custody of the child and then file a motion for
permanent custody under R.C. 2151.413, or an agency may request permanent
custody as part of an abuse, neglect or dependency complaint under R.C.
2151.353(A)(4). In re J.F. at ¶ 44. In this case, the agency sought permanent custody
for I.R. in its complaint.
When proceeding on a complaint with an original dispositional
request for permanent custody, the trial court must satisfy two statutory
requirements before a child can be placed in the permanent custody of a children
services agency. In re J.F. at ¶ 48. R.C. 2151.353(A)(4) provides that, if a child is
adjudicated an abused, neglected or dependent child, the juvenile court may
“[c]ommit the child to the permanent custody of a public children services agency,”
if the court determines (1) “in accordance with [R.C. 2151.414(E)] that the child
cannot be placed with one of the child’s parents within a reasonable time or should
not be placed with either parent” and (2) “in accordance with [R.C. 2151.414(D)(1)]
that the permanent commitment is in the best interest of the child.” In making these
determinations, the juvenile court may not consider “the effect the granting of
permanent custody to the agency would have upon any parent of the child.” R.C.
2151.414(C).
“A juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence ‘if the record contains
some competent, credible evidence from which the court could have found that the
essential statutory elements for permanent custody had been established by clear
and convincing evidence.’” In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-
1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
“Clear and convincing evidence” is that “measure or degree of proof”
that “produce[s] in the mind of the trier of fact 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), paragraph three of the syllabus; In re M.S., 2015-Ohio-1028, at ¶ 8. “It is
intermediate, being more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.” Cross at 477.
In determining whether a child cannot be placed with one of the
child’s parents within a reasonable time or should not be placed with either parent,
the juvenile court must consider “all relevant evidence,” including specific factors
enumerated in R.C. 2151.414(E). If the juvenile court finds by clear and convincing
evidence that at least one of the enumerated factors in R.C. 2151.414(E) exists as to
each of the child’s parents, the juvenile court must find that the child cannot be
placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(E).
If the juvenile court finds that a child cannot be placed with either
parent within a reasonable time or should not be placed with either parent in
accordance with R.C. 2151.414(E), it must then consider whether committing the
child to the permanent custody of the agency is in the child’s best interest.
The best-interest determination focuses on the child, not the parent.
In re N.B., 2015-Ohio-314, at ¶ 59. In determining whether permanent custody is in
the best interest of the child under R.C. 2151.414(D)(1), the juvenile court must
consider “all relevant factors,” including, but not limited to: (1) 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; (2) 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;
(3) the custodial history of the child; (4) 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 (5) whether any of the factors set
forth in R.C. 2151.414 (E)(7) to (11) apply.3
3 These factors include: whether the parent has been convicted of certain crimes,
has withheld medical treatment or food from the child, has placed the child a substantial
risk due to the parent’s drug or alcohol use and rejected treatment, has abandoned the
child or had had its parental rights terminated with respect to a sibling of the child. R.C.
2151.414(E)(7)-(11).
The juvenile court is required to consider each factor listed in R.C.
2151.414(D)(1); however, no one factor is to be given greater weight than the others.
In re T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 23, citing In re
Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Further, only
one of the factors set forth in R.C. 2151.414(D)(1) need be resolved in favor of
permanent custody to support a finding that permanent custody is in a child’s best
interest and to terminate parental rights. In re J.C-A., 8th Dist. Cuyahoga No.
109480, 2020-Ohio-5336, ¶ 80; In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-
Ohio-3818, ¶ 17; In re N.B. at ¶ 53.
The juvenile court has considerable discretion in weighing the R.C.
2151.414(D)(1) factors. We review a juvenile court’s determination of a child’s best
interest for abuse of that discretion. In re P.B., 8th Dist. Cuyahoga Nos. 109518 and
109519, 2020-Ohio-4471, ¶ 76, citing In re D.A., 8th Dist. Cuyahoga No. 95188,
2010-Ohio-5618, ¶ 47; see also In re J.B., 2013-Ohio-1704, at ¶ 97 (“[T]he discretion
that a trial court has in custody matters should be accorded the utmost respect, given
the nature of the proceeding and the impact the court’s determination will have on
the lives of the parties concerned.”).
The Juvenile Court’s Findings in Support of Its Decision to Commit
I.R. to the Permanent Custody of the Agency
This is a difficult and unusual case. Based on the record before us,
there appears to be little doubt that clear and convincing evidence supports the
juvenile court’s determination that it would be in I.R.’s best interest to be committed
to the permanent custody of the agency so that he could be adopted by Foster
Mother and grow up with his biological siblings, with whom he is strongly bonded
and with whom he has lived most of his young life, rather than with his Father, with
whom I.R. has lived only six months, in whose care he has suffered physical injury
and whom I.R. clearly fears and does not wish to visit — much less be returned to
his care and custody.
Indeed, Father does not challenge the juvenile court’s finding that
permanent custody would be in I.R.’s best interest. Rather, he simply asserts that
the juvenile court’s best interest determination is “irrelevant,” i.e., that given that
the juvenile court “erred in the first prong of the analysis, it never should have
reached the second prong.”
In order to commit a child to the permanent custody of a public
children services agency, however, the statute requires proof, by clear and
convincing evidence, not only that permanent custody is in the best interest of the
child, but also that the child cannot be placed with one of the child’s parents within
a reasonable time or should not be placed with either parent. Thus, the issue in this
case is whether the agency presented sufficient competent, credible evidence to
support the juvenile court’s finding, by clear and convincing evidence, that I.R. could
not be placed with Father within a reasonable time or should not be placed with
Father.
The juvenile court found, as it relates to Father, that I.R. could not be
placed with Father within a reasonable time or should not be placed with Father
based on its determination that R.C. 2151.414(E)(1) and (4) applied:
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.
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.4
Based on its findings under R.C. 2151.414(E), the juvenile court was
required to find that I.R. could not be placed with either of his parents within a
reasonable time or should not be placed with either parent. See, e.g., In re C.H., 8th
Dist. Cuyahoga Nos. 82258 and 82852, 2003-Ohio-6854, ¶ 58, citing In re Glenn,
139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000).
4 As it relates to Mother, the juvenile court found that R.C. 2151.414(E)(10) and
(11) also applied:
The child is abandoned by the mother.
The parent has had parental rights terminated with respect to a sibling of the child
and the parent has failed to provide clear and convincing evidence to prove, that
notwithstanding the prior termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare and safety of the child.
There is no dispute in this case that the juvenile court made all of the requisite
findings as it relates to Mother to support an award of permanent custody to the agency.
Father contends that the juvenile court’s findings under R.C.
2151.414(E)(1) and (4), as they relate to Father, do “not comport with the record”
and are “against the manifest weight of the evidence.” With respect to the juvenile
court’s finding under R.C. 2151.414(E)(1), he argues that the record does not
demonstrate “by clear and convincing evidence” his “repeated and continuous
failure” to remedy the situation that led to I.R.’s removal. He also challenges the
juvenile court’s finding that the agency made “reasonable efforts” to reunify I.R. with
Father. Father asserts that the evidence shows that he was attending parenting
classes and a support group for single fathers, that he is employed and has
appropriate housing and that “the only thing [he] had not addressed was his own
mental health.” Father further notes that “a mere six months” had passed between
the time I.R. was removed from Father’s custody and the permanent custody
hearing, that “the record does not show any effort by CCDCFS to reengage [Father]
with regard to his mental health” and that this “[o]ne failure” is “hardly continuous
and repeated.”
Father also argues that the record does not support the juvenile
court’s finding that Father has demonstrated a “lack of commitment” toward I.R. by
failing to regularly support, visit or communicate with him when he was able to do
so or by other actions showing an unwillingness to provide an adequate permanent
home for I.R. In support of his contention, Father points to testimony by Ferguson
that Father “often” contacted her regarding I.R. He also notes that there is no
dispute that he is employed and that his home is suitable for I.R. Father argues that
he “tried to have contact” with his son and that I.R.’s reticence to participate in
visitation with him should not be “twisted around” to suggest a lack of interest or
commitment on the part of Father.
The agency responds that Father’s failure to attend the appointment
for a mental health assessment, his “lack of engagement in anger management and
mental health services,” his failure to complete a nine-week parenting course in six
months (allegedly “repeat[ing]” his failure to complete parenting classes when I.R.
was previously taken into custody), his inconsistent communication with and failure
to keep appointments with the agency and his failure to respond to the guardian ad
litem’s requests for contact, “taken together,” clearly and convincingly demonstrate
both “a pattern of repeated and continuous failures to remedy the problems leading
to the child’s removal” and a “lack of commitment” to I.R., supporting the juvenile
court’s findings under R.C. 2151.414(E)(1) and (4).
There is limited information in the record regarding what Father did
(or allegedly failed to do) during the time I.R. was previously in agency custody.
Ferguson testified only that Father had not completed parenting classes; there is no
indication that mental health services were then part of Father’s case plan or that
there were any concerns regarding excessive discipline by Father at that time.5
5 As indicated above, although Ferguson testified at the dispositional hearing that
Father did not complete parenting classes during the initial period I.R. was in custody,
Sing testified at the emergency custody hearing that Father had completed a parenting
program at that time. It is unknown, based on the record before us, which is correct.
Regardless, given that there was no concern regarding anger management or excessive
discipline during the time I.R. was previously in custody, presumably, the parenting
classes to which Father was referred in connection with this case had a different focus.
As to Father’s efforts after I.R. was removed from his care on
September 1, 2020, the record is somewhat limited and, at times, inconsistent with
the SAR report filed with the juvenile court on March 2, 2021. Although the
parenting classes to which Father was referred were described as a nine-week course
(which Father reportedly began attending in late January), there was no testimony
that Father had missed any classes, only that he had attended only three or four
classes by the time of the March 4, 2021 hearing. And, as detailed above, the SAR
report filed on March 2, 2021, suggests that Father was making some progress with
that aspect of his case plan. With respect to Father’s failure to complete a mental
health assessment and to engage in any recommended mental health services,
Ferguson testified only that a mental health assessment had been scheduled for
Father for December 30, 2020 and that Father had failed to appear for the
assessment. There was no testimony as to why Father failed to appear for the mental
health assessment or whether any efforts were made to reschedule the assessment.
On the other hand, the agency presented substantial, credible
evidence that Father was not communicating consistently with the agency.
Ferguson testified that she was repeatedly unable to contact Father by telephone,
that Father missed multiple appointments with the agency and that Father failed to
respond to efforts by the guardian ad litem to contact him. Although the record does
not show any specific efforts by the agency to assist Father in rescheduling and
completing his mental health assessment, without consistent communication back
from Father and without Father’s participation in scheduled meetings with the
agency, it would seem that there was little more the agency could do to assist Father
in completing that aspect of his case plan.
Issues with Father’s communication with the agency also appear to
have impacted his visitation with I.R. Although the record reflects that I.R. was
reluctant to engage in any form of visitation with Father, it appears that even virtual
visitation was rarely attempted due, in part, to Father’s failure to consistently
communicate with the agency.
Although Father attempts to downplay the significance of his
noncompliance with the mental health services element of his case plan, asserting
that “the only thing [Father] had not addressed was his own mental health,” the
agency presented evidence that Father had expressly acknowledged that he had
unaddressed trauma from his childhood that he believed played a role in the
incident and impacted his ability to appropriately parent and discipline I.R. As such,
Father’s failure to take any steps during the six months I.R. was removed from his
care to address this trauma is noteworthy and demonstrates a lack of commitment
toward I.R.
Further, although Father was not compliant with his case plan, we
note that even “substantial compliance with a case plan” is not, in and of itself,
“dispositive” and “does not preclude a grant of permanent custody to a social
services agency.” In re J.B., 2013-Ohio-1704, at ¶ 90, citing In re C.C., 187 Ohio
App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.). This case is not just
about Father’s compliance (or lack of compliance) with case plan services. To be
reunified with I.R., Father needed to remedy the conditions that led to I.R.’s removal
from the home, show that he could provide a safe, appropriate and loving
environment for I.R. and do so within a reasonable time.
In this case, although Father appears to have genuine affection for
I.R. and a desire to parent him, the record shows that Father has never even
acknowledged what happened to I.R. — much less taken any of the necessary steps
to remedy the conditions that led to the August 31, 2020 incident and I.R.’s removal
from his care. Father’s conduct surrounding the August 31, 2020 incident is cause
for great concern — not only due to his inappropriate, excessive discipline of I.R. —
but also due to his actions in lying to the social worker about I.R.’s whereabouts and
hiding I.R. from the social worker when she attempted to conduct a well check of
I.R.
Following careful consideration of the testimony presented at the
permanent custody hearing, we find that competent, credible, clear and convincing
evidence supports the juvenile court’s findings that (1) the agency made reasonable
efforts to make it possible for I.R. to return to Father’s custody, (2) “notwithstanding
reasonable case planning and diligent efforts by the agency to assist the parents to
remedy the problems” that caused I.R. to be placed outside the home, Father has
failed “continuously and repeatedly to substantially remedy the conditions” causing
I.R. to be placed outside the home and (3) Father “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.” Accordingly, the trial court did
not err in committing I.R. to the permanent custody of CCDCFS.
We overrule Father’s first assignment of error.
Effective Assistance of Trial Counsel
In his second assignment of error, Father argues that he was denied
the effective assistance of trial counsel because (1) his trial counsel failed to timely
file a motion to compel the production of Johnson’s “investigative notes” concerning
the events surrounding the removal of I.R. from Father’s custody and (2) failed to
investigate “the potential for independent witnesses to verify [Father’s] version of
events.” Father contends that “what was known and said at the time of I.R.’s
removal” was “absolutely critical” and that counsel’s failure to perform these tasks
resulted in prejudice to Father because it precluded “effective cross-examination” of
Johnson and “severely hampered” “any effort to develop independent witnesses.”
The right to counsel, guaranteed in juvenile proceedings by R.C.
2151.352 and by Juv.R. 4, includes the right to the effective assistance of counsel.
See also In re M.I.S., 8th Dist. Cuyahoga No. 98138, 2012-Ohio-5178, ¶ 26 (“[T]the
right to effective assistance of trial counsel attaches * * * to criminal proceedings and
to proceedings for the permanent, involuntary termination of parental rights.”),
citing Jones v. Lucas Cty. Children Servs. Bd., 46 Ohio App.3d 85, 86, 546 N.E.2d
471 (6th Dist.1988). “[T]he test for ineffective assistance of counsel used in criminal
cases is equally applicable in actions seeking to force the permanent, involuntary
termination of parental custody.” In re S.P., 8th Dist. Cuyahoga No. 110194, 2021-
Ohio-1822, ¶ 20, quoting In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93(1st Dist.1998).
To establish ineffective assistance of counsel, the represented party
must demonstrate: (1) deficient performance by counsel, i.e., that counsel’s
performance fell below an objective standard of reasonable representation, and (2)
that counsel’s errors prejudiced the party, i.e., a reasonable probability that but for
counsel’s errors, the outcome would have been different. Strickland v. Washington,
466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. “Reasonable probability” is “probability sufficient to undermine
confidence in the outcome.” Strickland at 694. Father has not met his burden here.
First, trial counsel’s failure to file a motion to compel the production
of Johnson’s investigative notes and failure to investigate potential witnesses who
could support his version of events relate to the juvenile court’s adjudication of I.R.
as an abused and dependent child, not to its decision committing I.R. to the
permanent custody to CCDCFS. Father has appealed only the juvenile court’s
judgment granting permanent custody of I.R. to the agency. He did not reference
the juvenile court’s adjudication order in his notice of appeal and has not included
any assignment of error related to the adjudication of I.R. as an abused and
dependent child in his appellate brief.
Second, even assuming that Father’s trial counsel were deficient in
failing to compel the production of Johnson’s investigative notes, he has not shown
that, but for counsel’s errors, the outcome in this case would have been any different.
The juvenile court’s decision to award permanent custody to CCDCFS was based on
(1) Father’s conduct after I.R. was removed from his care, i.e., Father’s failure
continuously and repeatedly to substantially remedy the conditions causing the I.R.
to be placed outside the home and lack of commitment toward I.R., and (2) the
juvenile court’s determination that committing I.R. to the permanent custody of the
agency was in his best interest. Any potential inconsistency between Johnson’s
testimony in court and her investigative notes at the time of I.R.’s removal would
not have impacted those determinations.
Finally, with respect to counsel’s alleged failure to investigate the
“potential for independent witnesses,” Father claimed that I.R. was scraped by a
zipper when Father grabbed the back of I.R.’s hoodie to avoid him being hit by a car
when they were walking to the store together. Although, in general, trial counsel has
a duty to conduct a reasonable investigation or to make a reasonable decision that a
particular investigation is unnecessary, see, e.g., Strickland, 466 U.S. at 691, 104
S.Ct. 2052, 80 L.Ed.2d 674, there is nothing in the record to suggest that anyone
else witnessed the incident at issue who would have supported Father’s version of
events. Further, I.R.’s injuries, as depicted in the photographs taken by Johnson
and admitted into evidence at the hearing, do not appear to be consistent with
Father’s version of events.
Father’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
________________________
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR