2021 Ohio 3729
Ohio Ct. App.2021Background
- O.S., born Feb. 27, 2013, was removed from mother's care in July 2016 (domestic violence, mother's homelessness/drug use); KCDJFS obtained temporary custody and the case was refiled in Oct. 2018.
- Father (appellant) had minimal contact with O.S. before removal, has a history of unstable housing and schizoaffective disorder, but later obtained stable housing and regular mental‑health treatment and completed his case plan.
- O.S. has lived with the same foster family since 2017, is bonded to them, has an IEP and was recently diagnosed with frontal epileptic seizures requiring medical monitoring.
- KCDJFS moved for permanent custody Oct. 2020; trial held Mar. 26, 2021; GAL, therapist, caseworkers, foster parent, and the court’s in‑camera interview all reported O.S. does not want to live with Father.
- Trial court found (May 11, 2021) O.S. had been in agency custody for more than 12 of the prior 22 months, KCDJFS made reasonable efforts, and permanent custody to KCDJFS was in the child’s best interest; Father appealed.
Issues
| Issue | Father’s Argument | KCDJFS / State’s Argument | Held |
|---|---|---|---|
| Whether permanent custody was supported by clear and convincing evidence (best interest and placement) | Evidence was insufficient / against manifest weight; Father completed case plan and should reunify | Child in agency custody >12 of 22 months; persistent concerns (home conditions, weak parent–child bond, child’s wishes, medical needs); stability found in foster home | Affirmed: competent, credible evidence supports best‑interest and placement findings |
| Whether agency used reasonable efforts to reunify | KCDJFS failed to include Father in medical/school planning, limited visitations during COVID, and did not sufficiently address bonding | Agency made repeated reasonable efforts (case planning, referrals, visitation, transport, counseling coordination); court previously found reasonable efforts at prior hearings | Affirmed: reasonable and diligent efforts shown; statutory timing rule (In re C.F.) applies |
| Whether child required independent counsel because her wishes conflicted with GAL | Father urged appointment of separate attorney because child’s wishes conflicted with GAL recommendation | GAL’s recommendation and child’s expressed wishes were aligned (child did not want to live with Father); court interviewed child in camera and confirmed wishes | Affirmed: no conflict requiring independent counsel; appointment not required |
| Whether trial court erred by admitting testimony of foster mother who was allegedly undisclosed | Father argued witness was not disclosed per discovery rules and testimony should be excluded | Father had known foster parent for years, no written discovery request shown, no unfair surprise or prejudice demonstrated | Affirmed: trial court did not abuse discretion in allowing testimony |
Key Cases Cited
- In re Murray, 52 Ohio St.3d 155 (1990) (parental custody is an essential civil right)
- Stanley v. Illinois, 405 U.S. 645 (1972) (fundamental parental rights jurisprudence)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (definition of clear and convincing evidence)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978) (appellate standard: do not substitute judgment if competent, credible evidence supports trial court)
- In re C.F., 113 Ohio St.3d 73 (2007) (timing and scope of reasonable‑efforts findings at permanent‑custody hearing)
- In re Williams, 101 Ohio St.3d 398 (2004) (factors for appointing separate counsel for a child when GAL role may conflict)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (deference to trial court on witness credibility in custody contexts)