In re A.D.
Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 6, 2022
Jeffrey J. Cutcher, for Appellant Father,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Madeline Schneider, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Megan E. Busam, Assistant Public Defender, for Guardian ad Litem for A.D., Jr.
{1} Appellant father appeals the judgment of the Hamilton County Juvenile Court granting permanent custody of his child, A.D., Jr., (“A.D.“) to the Hamilton County Department of Job and Family Services (“HCJFS“). For the following reasons, we affirm the judgment of the juvenile court.
Factual and Procedural History
{2} On April 2, 2019, HCJFS filed a complaint for temporary custody of A.D. The complaint alleged that A.D. had undiagnosed behavioral concerns that required intensive and constant care. It further alleged that A.D. was diagnosed with Sensory Disorder, was believed to be an autistic child, was non-verbal, and appeared to be developmentally delayed. Regarding mother, the complaint alleged that she was currently homeless and unable to provide for A.D.‘s basic needs. Regarding father, the complaint alleged that he was employed as a truck driver and was gone for months at a time, was without stable housing, and was not financially prepared to care for A.D.‘s special needs. Interim custody was granted to HCJFS that same day and a guardian ad litem was appointed.
{3} On August 13, 2019, A.D. was adjudicated dependent and neglected after father admitted dependency and stipulated that his employment prevented him from caring for A.D., and the court found that A.D. had suffered physical abuse by mother and that mother had “exited,” leaving A.D. behind. Father agreed to a temporary custody plan and A.D. was committed to the temporary custody of HCJFS. The initial case plan averred that father should obtain housing, be involved in A.D.‘s medical appointments and assessments, and attend all recommended classes to increase his understanding and ability to address A.D.‘s specific and immediate needs.
{4} The juvenile court conducted a review hearing on October 14, 2019. The entry from the court indicated that no parent was engaged in regular visitation or services and said that father‘s stated intentions of gaining new employment and a stable residence had yet to be recognized. Temporary custody to HCJFS was extended on March 4, 2020, after all parties agreed to the extension.
{5} On August 18, 2020, HCJFS filed a motion to modify temporary custody to permanent custody. The motion alleged that A.D. did not have a relationship with either parent, that neither parent was involved in A.D.‘s medical or therapeutic care, and that father had not visited with A.D. since November of 2019. An amended case plan was approved by the court on April 16, 2021, which requested that father‘s visitation be changed to supervised visitation, that father complete a diagnostic assessment of functioning, and that father follow all service recommendations and sign all needed release forms. The case plan indicated that father now had stable housing but was still working as a truck driver.
{6} The guardian ad litem filed her report on July 1, 2021, recommending that the juvenile court grant permanent custody of A.D. to HCJFS. Hearings were held before a magistrate on July 13 and August 25, 2021, at which the HCJFS caseworker and father testified.
{7} The HCJFS caseworker testified that father ultimately completed a diagnostic assessment of functioning, obtained housing, and obtained local employment. Regarding visitation, the caseworker testified that, when the case was transferred to him in October of 2020, he was told that father had not visited A.D. since November of 2019. Father started visits again in March of 2021 and completed
{8} Regarding father‘s ability to care for A.D., the caseworker testified that there was no evidence that father had the ability to meet A.D.‘s special needs and said there were concerns about whether father fully understood A.D.‘s disabilities. The caseworker visited a school, located by father for A.D., called KidsLink, but A.D. had yet to be accepted into the program. The cost for the program was $82,500, and the school said they had to go through the Streetsboro Board of Education to find out whether the cost would be covered. The school is also closed several days throughout the month and sometimes up to two weeks during the month, which does not align with father‘s work schedule. Father had not indicated any plans to the caseworker for childcare outside of school.
{9} The caseworker testified that A.D. was bonded with his foster family and seemed happy. He said the interactions between A.D. and his foster mother had always been positive, and his foster mother had expressed an interest in adopting him. He explained that A.D. had shown improvement with his behaviors since being placed with his foster mother and receiving services through Children‘s Hospital and
{10} Father testified that, for the past two years, he worked for a truck auction company doing pressure washing. With this position, he traveled all over the United States and lived on the road. However, he said he would come back to the area to spend a lot of time with his mother. In February of 2021, he sought new employment so he could stop traveling and get custody of his son. He said that he now works for a place called Cabmat, making $18 an hour. When asked how long he had been in this position, he said he had just recently completed his 90-day trial period. Father testified that he had friends who lived close to him who agreed to help with A.D. When asked how he anticipated KidsLink being paid for, father said, “I mean, he got grants because he‘s special needs, but, I mean, that‘s a lot. We would have to – we‘d have to do some loans or something or another, but I think I make enough money to do it, but it‘s going to be hard on me and [A.D.].” Father agreed that he intended to apply for any benefits that A.D. would be entitled to. When asked what arrangements he made for alternative care for A.D. during school breaks, he said that the daughter of his friend had agreed to “help with the situation.” He denied knowing what the school‘s hours were. When asked if he had identified any daycares that met A.D.‘s needs, he replied, “I mean, what I got – what I got is a little bit better for my needs as far as, you know, being close by.” He claimed that he talked to one daycare but only asked what was needed for enrollment.
{12} Father denied using any “nonprescription drugs” for the last five months. He testified that his apartment had two bedrooms, one of which was set up for A.D. He agreed that he would be involved in A.D.‘s medical services and appointments if A.D. was placed with him. He claimed that he was previously involved in meetings where they were talking about A.D. He described the meetings as progress reports over the phone. He said, “I just know we was talking about [A.D.] and everything. They‘d be talking about him, so I just really didn‘t even want to hear none of that.” He ultimately denied having attended any of A.D.‘s medical appointments. When asked if he received medical insurance through his employer, he responded, “I just got the package. I did dental. Can‘t do heath because of child support, and it would just take too big of a chunk, so I got dental.” When asked if he had taken any special-needs classes, medical classes to help with any medical issues, or parenting classes to help with a special needs child, he said no.
{13} The magistrate entered a decision on October 1, 2021, granting permanent custody of A.D. to HCJFS. The magistrate found that A.D. had been in the temporary custody of HCJFS for at least 12 months of a consecutive 22-month period and that permanent custody to HCJFS was in A.D.‘s best interest. Father filed objections to the magistrate‘s decision on October 14, 2021, arguing that the evidence was insufficient to support the magistrate‘s determination. The trial court heard
Law and Analysis
{14} In his first assignment of error, father argues that the trial court‘s best interest determination was not supported by sufficient evidence. In his second assignment of error, father argues that the trial court erred in finding that he abandoned A.D. Because the assignments of error are interrelated, we address them together.
{15} ”
{17} In determining the best interest of the child under the second prong of the two-part test, the juvenile court is required to consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period;
(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of
R.C. 2151.414 apply in relation to the parents and child.
{18} In determining the best interest of A.D., the juvenile court found that father had limited contact with A.D. due to inconsistent visitation, and that A.D.‘s current placement had been utilizing all available resources to meet A.D.‘s special needs, while father had not been involved in any of these interventions. The court noted that A.D. had significant special needs, which appeared to be improving with his current foster placement. The juvenile court recognized that A.D. was unable to express his own wishes due to age and developmental challenges, acknowledged that A.D. had been in the care of HCJFS for more than 12 months of a 22-month period, had been at his current placement for more than a year and that foster mother wanted to adopt him. The juvenile court found that a legally secure placement could not be achieved without a grant of permanent custody to HCJFS because A.D. has special needs that could only be met by his foster family. The court noted that, had A.D. been with father in April of 2021, A.D. would have suffered another change in placement as father was involuntarily hospitalized due to the marijuana incident on the highway and said that father had no insight that his marijuana use caused him and those around him to be at risk. Lastly, the court found that father had abandoned A.D. by going more than 90 consecutive days without contacting or providing support for A.D. These findings are supported by the record.
{20} Father argues that a legally secure placement could be achieved with him as he had independent and appropriate housing, had new permanent employment that did not require travel, and lived close to KidsLink, which was approved as an appropriate school for A.D. by the HCJFS caseworker. “A legally secure placement ‘encompasses a stable environment where a child will live in safety with one or more dependable adults who will provide for the child‘s needs.’ ” In re D.V., 1st Dist. Hamilton Nos. C-210580 and C-210624, 2022-Ohio-1024, ¶ 30, citing In re P. & H., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 42.
{21} A.D. is an autistic child with numerous special needs. A.D. was first placed outside the home in April of 2019. The initial case plan indicated that father should obtain housing as soon as possible, be involved in all of A.D.‘s medical appointments and assessments, and attend classes that would increase his understanding and ability to address A.D.‘s needs. While father did ultimately obtain
{22} Father specifically takes issue with the juvenile court‘s finding under
{23} A child is 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.”
{24} First, father argues the presumption of abandonment was rebutted by showing that his inability to visit A.D. was due to his employment. However, while this might explain why he did not visit A.D., it does not explain why he did not maintain any contact with A.D. No evidence was presented of any attempts to maintain contact with A.D. while he was away. Father additionally argues that the presumption of abandonment was rebutted when he moved to Streetsboro, Ohio, obtained new permanent employment and had at least one visit with A.D. between the trial dates. However, this argument ignores the latter part of the statute which provides that a parent is presumed to have abandoned the child, regardless of whether the parent resumes contact after the period of abandonment. See
{25} After our review of the record, we find that there was sufficient evidence before the trial court to find, by clear and convincing evidence, that a grant of permanent custody to HCJFS was in A.D.‘s best interest. Accordingly, we overrule both assignments of error.
Conclusion
{26} Having overruled both assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.