IN THE MATTER OF: A.J.
CASE NO. CA2018-08-014
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
12/10/2018
2018-Ohio-4941
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. AND20170335
Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, Fayette County Courthouse, 110 East Court Street, Washington C.H., Ohio 43160, for appellee, Fayette County Children Services
OPINION
HENDRICKSON, P.J.
{¶ 1} Appellant, the biological father of A.J. (“Father“), appeals the decision of the Fayette County Court of Common Pleas, Juvenile Division, granting permanent custody of A.J. to appellee, Fayette County Children Services (“FCCS“). For the reasons outlined below, we affirm the juvenile court‘s permanent custody determination.
Facts and Procedural History
{¶ 2} A.J. was born on November 14, 2015. Approximately 16 months later, A.J.‘s
{¶ 3} On May 23, 2017, FCCS learned that Mother was having unsupervised visitation time with her four children. FCCS also learned that Mother had not received the agreed upon substance abuse treatment. Mother, however, had nevertheless told Grandmother that she had received treatment for her heroin addiction. Upon learning Mother had not received any treatment for her substance abuse issues, Grandmother withdrew from the agreement with FCCS and refused to participate further. Per the agreement between Mother, Grandmother, and FCCS, all four of Mother‘s children were then removed from Mother‘s care and placed in foster care or kinship placements. A.J., the child subject of this appeal, was one of the children placed in a foster home. A.J. has remained in the same foster home with the same foster family ever since being removed from Mother and Grandmother‘s care.
{¶ 4} On June 21, 2017, FCCS filed a complaint alleging A.J. was a neglected and dependent child. In support, FCCS alleged Mother‘s whereabouts were then unknown and that the identity of A.J.‘s biological father had yet to be established. FCCS also alleged Mother had admitted using drugs for the past eight years, that she used drugs during her pregnancy with D.D., and that she had continued to use drugs even after D.D.‘s birth. FCCS
{¶ 5} On August 17, 2017, the juvenile court held an adjudication hearing. Following this hearing, the juvenile court adjudicated A.J. a neglected and dependent child. Approximately one month later, the juvenile court held a disposition hearing and issued a dispositional decision finding it was in A.J.‘s best interest to be placed in the temporary custody of FCCS. As part of this decision, the juvenile court noted that A.J. had been placed in a foster home and that she was bonded to her foster family. The juvenile court also noted that A.J.‘s medical concerns had been addressed appropriately by her foster family since being placed in foster care. Two months later, in October 2017, Father was determined to be A.J.‘s biological father. At the time paternity was established, it is undisputed that Father was in prison serving a three-year term for possession of drugs.
{¶ 6} On December 6, 2017, A.J.‘s paternal-great-aunt (“Aunt“) filed a pro se complaint for legal custody of A.J. In support of her complaint, Aunt stated that “as family members” she and her husband would like to be awarded custody of A.J. “until the parents are able to properly care for the child.” At the time Aunt filed her complaint it is undisputed that she lived in Maryland. It is also undisputed that Aunt had had never had any physical face-to-face contact with A.J. prior to filing her complaint. Rather, as the record indicates, Aunt had only seen A.J. on a series of video calls with Mother shortly after her birth.
{¶ 7} On March 16, 2018, FCCS filed a motion for permanent custody of A.J. In support of its motion, FCCS argued A.J. had been abandoned by Mother and Father since neither had any contact with A.J. after she was adjudicated a neglected and dependent child.
{¶ 8} On July 17, 2018, the juvenile court held a hearing on FCCS‘s motion for permanent custody. As part of this hearing, the juvenile court heard testimony from Father, Aunt, and two caseworkers with FCCS. During this hearing, a caseworker testified regarding A.J.‘s success after being placed in foster care as follows:
[A.J.‘s] doing so well, she has made so much progress since being with [her foster parents]. When she came into care she had bowed legs and would not talk to anyone. She had stranger danger and needed therapy for her legs. Since then she has received that therapy up at Nationwide Children‘s Orthopedic Unit. She engages in conversation with the family and with myself and I‘m seeing her in the home. She‘s hitting all of her milestones and, and doing very well.
{¶ 9} After taking the matter under advisement, the juvenile court issued a decision granting FCCS‘s motion for permanent custody. In so holding, the juvenile court determined that both Mother and Father had abandoned A.J. Specifically, as the juvenile court found, “[Father] visited A.J. on March 13, and 20 of 2018. Other than those visits there has been no contact by any parent with [A.J.] since [Mother] last visited in June, 2017.” Concluding, the juvenile court determined FCCS had proved by clear and convincing evidence that a grant of permanent custody was in A.J.‘s best interest.
Appeal
{¶ 10} Father now appeals from the juvenile court‘s decision granting FCCS‘s motion for permanent custody. In support of his appeal, Father argues the juvenile court‘s decision to grant FCCS permanent custody was not supported by sufficient credible evidence and was otherwise against the manifest weight of the evidence. Under these circumstances, this court
Standard of Review
{¶ 11} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of his child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. In re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court‘s review of a juvenile court‘s decision granting permanent custody is generally limited to considering whether sufficient credible evidence exists to support the juvenile court‘s determination. In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. This court will therefore reverse a juvenile court‘s decision to grant permanent only if there is a sufficient conflict in the evidence presented. In re K.A., 12th Dist. Butler No. CA2016-07-140, 2016-Ohio-7911, ¶ 10. However, even if the juvenile court‘s decision is supported by sufficient evidence, “an appellate court may nevertheless conclude that the judgment is against the manifest weight of the evidence.” In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.
{¶ 12} As with all challenges to the manifest weight of the evidence, in determining whether a juvenile court‘s decision is against the manifest weight of the evidence in a permanent custody case, an appellate court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. The presumption in weighing the evidence is in favor of the finder of fact, which we are especially mindful of in custody cases. In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶ 25. Therefore, “[i]f the evidence is susceptible to more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” Eastley at ¶ 21.
Two-Part Permanent Custody Test
{¶ 13} Pursuant to
Abandonment
{¶ 14} As it relates to the second part of the two-part permanent custody test, the juvenile court found both Mother and Father had abandoned A.J. This is because, as determined by the juvenile court, both Mother and Father had at one point not had any
{¶ 15} Pursuant to
{¶ 16} Regardless, even if Father had cited to evidence in the record, the record is nevertheless clear that Father failed to visit or maintain any contact with A.J. after he last visited with A.J. on March 20, 2018 up to when the juvenile court held its hearing on FCCS‘s motion for permanent custody on July 17, 2018 – a period of 119 days. Because the record is clear that Father failed to visit or maintain any contact with A.J. for a period of more than 90 days, Father‘s claim that the juvenile court should have instead “started its calculation of abandonment” on the date paternity was established in October 2017 is moot.2
{¶ 17} Father also argues the juvenile court erred by finding he had abandoned A.J. because any failure to visit or maintain contact with A.J. was a result of FCCS terminating his visitation time after only two visits. This, according to Father, was nothing short of an
[A.J.‘s] behavior regressed tremendously by approximately six months. She was throwing herself down on the floor and essentially throwing temper tantrums. She would scream for 20 minutes at a time and it would last the rest of the day. This would last for three or four days after a visitation.
Concerns regarding A.J.‘s behavior were so severe that A.J. was taken to the doctor by her foster parents. Considering A.J.‘s regression following each of her two visits with Father, we find nothing improper about FCCS‘s decision to terminate Father‘s visitation time after only two visits. Father‘s claim otherwise lacks merit.
{¶ 18} Father next argues FCCS was too hasty in its decision to terminate his visitation time. This is because, according to Father, his visitation time with A.J. should have been terminated only after FCCS received a recommendation to terminate his visitation time from a medical professional. However, although Father suggests otherwise, there is no requirement that FCCS receive a recommendation from any medical professional before it could terminate either parent‘s visitation time with A.J. Simply stated, the decision whether to permit Father visitation time was at the discretion of FCCS.4 FCCS chose to terminate Father‘s visitation time after A.J. experienced significant regression in her behavior immediately following each of his two visits with her. We find nothing improper about FCCS‘s decision.
Best Interest of A.J.
{¶ 20} Turning now to the first part of the two-part permanent custody test, the juvenile court found it was in A.J.‘s best interest to grant permanent custody to FCCS. Father disputes the juvenile court‘s best interest determination. It is undisputed that Father never requested to have custody of his daughter. Father instead argues that Aunt should have been granted legal custody of A.J. We again find no merit to Father‘s claim.
{¶ 21} When considering the best interest of a child in a permanent custody case, the juvenile court is required under
{¶ 22} Initially, with respect to A.J.‘s relevant interactions and relationships with those who may significantly impact her young life, the juvenile court reiterated its previous finding that both Mother and Father had abandoned A.J. This is because, as the noted by the juvenile court, neither Mother nor Father had any contact with A.J. since Father‘s last visit on March 20, 2018 – a full 119 days before the hearing on FCCS‘s motion for permanent custody was held on July 17, 2018. The juvenile court also noted that A.J. was doing “very well” in her foster home, that her foster parents were interested in adopting her if FCCS was granted permanent custody, and that A.J., who was then just two years old, was talking and meeting her developmental milestones.
{¶ 23} On the other hand, as it relates to Aunt, the juvenile court noted that Aunt had never physically met A.J. in person. Rather, as the juvenile court found, the only contact Aunt had with A.J. was through a series of video calls with Mother shortly after her birth. The juvenile court further found that visitation time between A.J. and Aunt never transpired due, in part, to the fact Aunt wanted more visitation time than she was offered. Yet, due to the parties’ busy schedules, the record indicates that providing Aunt with any additional visitation time was not feasible.
{¶ 24} The record also indicates Aunt chose not to exchange e-mail addresses with A.J.‘s foster family when they offered to send her photographs of her niece. At the hearing on FCCS‘s motion for permanent custody, Aunt admitted that she had refused to exchange e-mail addresses with A.J.‘s foster family at a previous hearing before the juvenile court. Aunt, however, claimed this was merely a result of her being “so overwhelmed by what had taken place” that she “ended up walking out of the courtroom.”
{¶ 25} Next, regarding A.J.‘s wishes, the juvenile court noted that A.J. was too young to express her wishes. The guardian ad litem, however, issued a report and recommendation that recommended granting FCCS‘s motion for permanent custody. This recommendation was based, at least in part, on the fact that A.J. appeared “very bonded with her foster family and they are open to adopting her if the opportunity arises.” The guardian ad litem also testified that A.J.‘s foster parents were “very interested in adoption” and that there was “absolutely no reason to believe that that [would] change.” The juvenile court then noted that A.J. had been in the temporary custody of FCCS since June 21, 2017. The record supports the juvenile court‘s finding.
{¶ 26} Furthermore, regarding A.J.‘s need for a legally secure placement, the juvenile court found A.J.‘s need of a legally secure permanent placement could not be achieved without a grant of permanent custody to FCCS. The juvenile court‘s decision was based on its finding A.J. “had almost no interaction with [her] parents for the past year,” that she was doing “very well” in her foster home, and that her foster parents were interested in adopting her if FCCS was granted permanent custody. Therefore, according to the juvenile court, granting FCCS permanent custody was “the only way to provide [A.J.] with a legally secure placement.”
{¶ 27} Finally, with respect to any of the factors contained in
{¶ 28} After a thorough review of the record, we find the record fully supports the juvenile court‘s decision to grant FCCS‘s motion for permanent custody. Father nevertheless argues the juvenile court erred by granting permanent custody to FCCS since he “never thought of abandoning his daughter and also that FCCS was never inclined to allow him the custody of the child.” However, as noted above, Father never expressed any interest in obtaining custody of A.J. Yet, even then, there is nothing in the record to support Father‘s claims – particularly those claims alleging FCCS was somehow working against him to deny him access to A.J. Therefore, while it may be true that Father “never thought” of abandoning A.J., as noted above, the juvenile court‘s decision finding he had abandoned his daughter was supported by sufficient credible evidence and was not otherwise against the manifest weight of the evidence. Father‘s claims otherwise lack merit.
{¶ 29} Father also argues the entire process by which his relationship with A.J. was measured was “unfair” and denied him a “meaningful opportunity” to develop a relationship with his daughter. But, after a full and thorough review of the record, we find nothing improper in the manner in which FCCS managed this case when taking into account A.J.‘s best interest. The juvenile court, just like this court on appeal, must act in a manner that places A.J.‘s best interest above all else. “‘A child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security.‘” In re D.E. at ¶ 60, quoting In re Keaton, 4th Dist. Ross Nos. 04CA2785 and 04CA2788, 2004-Ohio-6210, ¶ 61. The
Aunt‘s Motion for Legal Custody
{¶ 30} Aunt did not appeal from the juvenile court‘s decision denying her complaint for legal custody. Father, however, argues the juvenile court erred by denying Aunt‘s complaint because placing A.J. with Aunt would have allowed him to see his daughter. This may very well be true. But, as noted above, it is undisputed that Aunt had never physically met A.J. in person. Rather, as the record indicates, Aunt had only seen A.J. through a series of video calls with Mother shortly after her birth. The guardian ad litem raised the same concerns regarding Aunt‘s limited interactions with A.J. specifically noting that “[t]he relative that has filed for custody of [A.J.] admittedly has no relationship with [A.J.] and has never even had face to face contact with her.” We agree with the juvenile court that placing A.J. with someone she has never physically met would not be in her best interest. This is particularly true here when considering A.J.‘s strong bond with her foster family whom she had resided with in the same foster home for over a year.
{¶ 31} In so holding, we note that Aunt lives in Maryland, not Ohio. In turn, had the juvenile court granted Aunt‘s motion for legal custody, A.J. would have been forced to move many miles away from Mother‘s family and from her three siblings, C.E., M.J., and D.D. We also find significant Aunt‘s decision not to visit A.J. when offered visitation time by FCCS. This, according to the record, was because Aunt wanted more visitation time with A.J. than what was offered. Yet, as noted above, the record indicates that providing Aunt with any additional visitation time was not feasible due to the parties’ busy schedules. The juvenile court took all these issues into consideration when issuing its permanent custody
{¶ 32} We also find significant Aunt‘s decision not to provide her e-mail address to A.J.‘s foster family when they offered to send her photographs of her niece. The fact that Aunt choose not to take this minor step towards further developing her relationship with A.J. creates some question regarding Aunt‘s commitment to her niece. This is certainly the case here when considering A.J. was then just two years old and had otherwise very limited interaction with Mother, Father, and Aunt following her birth. Therefore, based on the facts and circumstances here, the juvenile court did not err by denying Aunt‘s complaint upon finding it was not in A.J.‘s best interest to be placed with Aunt. Father‘s claim otherwise lacks merit.
Conclusion
{¶ 33} The juvenile court did not err in its decision to grant FCCS‘s motion for permanent custody of A.J. The juvenile court also did not err in its decision to deny Aunt‘s complaint for legal custody of her niece. Therefore, finding no merit to any of the arguments raised by Father herein, Father‘s two assignments of error are overruled, and the juvenile court‘s permanent custody determination is affirmed.
{¶ 34} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.