In re E.S.
Rendered on March 25, 2021
On brief: Yeura Venters, Public Defender, and Robert D. Essex, for appellant.
On brief: Robert McClaren, for Franklin County Children Services.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch
LUPER SCHUSTER, J.
{1} Appellant, D.S. (“father“), appeals from a decision and judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch, terminating his parental rights and placing E.S. and D.S. in the permanent custody of appellee, Franklin County Children Services (“FCCS“). For the following reasons, we affirm.
I. Facts and Procedural History
{2} This case involves FCCS‘s request for permanent custody of E.S., born February 8, 2005, and D.S., born May 30, 2008. On January 4, 2017, FCCS filed a complaint alleging E.S. and D.S. to be neglected and dependent children. FCCS filed the complaint after receiving information that L.S., the children‘s mother, had been a heavy drug user for years, abusing crack, prescription pills, and heroin. The complaint stated that
{3} On January 11, 2017, following a preliminary hearing, the trial court granted a temporary order of custody (“TOC“) to FCCS. The trial court ordered mother to undergo an alcohol and drug assessment, complete random drug screens, participate in a drug treatment program, and follow the recommendations of the assessment visits with FCCS. Subsequently, at a February 15, 2017 hearing, the parties proceeded uncontested as to the dependency cause of action and the trial court dismissed the neglect cause of action. The trial court adjudicated the children dependent and converted the TOC to an order of temporary court custody (“TCC“) to FCCS. Subsequently, the trial court approved and adopted a case plan for both mother and father.
{4} Prior to the scheduled annual review hearing, FCCS filed a motion on December 7, 2017 requesting that permanent court custody (“PCC“) of E.S. and D.S. be granted to FCCS. Pursuant to the PCC motion, FCCS alleged, under
{5} On October 28, 2019, the guardian ad litem for E.S. and D.S. filed a report detailing her work with the children. Ultimately, the guardian ad litem recommended that
{6} Following several more continuances, the trial court conducted a trial on the motion for PCC on November 4, 2019. Father did not contest the granting of the PCC motion as to E.S. but did contest the granting of the PCC motion as to D.S. Mother did not participate in the trial. At the time of the trial, E.S. was 14 years old and D.S. was 11 years old.
{7} During the trial, father testified as if on cross-examination that he has been married to mother since 2007. Father acknowledged he had a court ordered case plan that required him to complete drug screens, but he testified that he stopped completing those drug screens when FCCS stopped providing him bus passes. Additionally, father agreed that he stopped calling in for his drug screens in June 2017, which would not have required transportation, missing more than 600 call-ins. Father denied having any positive drug test results, denied having a drinking problem, and denied being an alcoholic. However, father agreed that he had not obtained alcohol or drug treatment or any alcohol or drug assessment since the case was opened.
{8} When asked why the children were placed in FCCS‘s custody, father blamed mother and testified that he was not involved in that decision because he was not living with mother even though the two are still married. Though father disagreed that the children were removed because of drug and alcohol concerns, father agreed that mother is addicted to heroin and that her drug abuse interfered with her ability to care for the children. Father indicated a general lack of knowledge of where his children were living or the conditions of their living situation at the time the children were placed in FCCS‘s custody. Father testified he had recently moved into new housing “a couple days” prior to the trial, testifying his new residence had three bedrooms and thus plenty of space for D.S. should he be returned to father‘s care. (Nov. 4, 2019 Tr. at 42.) However, father was unable to provide an address of his housing, stating he did not remember where he moved.
{9} Alejandria Scott, the FCCS caseworker assigned to the case, testified that mother admitted to using heroin and fentanyl. The caseworker testified she had the opportunity to observe father‘s residence, a one-bedroom apartment, as part of her involvement in the case, but she testified she was not aware of father‘s recently obtained
{10} The caseworker testified that the children have been in the custody of FCCS since January 2017 and are currently placed together in treatment foster care. Mother had not made any progress on any of her case plan objectives at the time of trial and her drug abuse was ongoing. Mother told the caseworker that she stays with father “on and off.” (Tr. at 58.)
{11} Further, the caseworker testified that father had not made any progress on the drug screens or alcohol and other drug assessment portions of his case plan. While the caseworker has monthly contact with father, the caseworker testified that father would repeatedly inform her that would not be completing any of the required case plan activities because he has adult children. The caseworker said father would attend his scheduled visits with D.S. but that D.S. was not particularly engaged in the visits. The caseworker also testified that FCCS provided both father and mother with bus passes but stopped providing those passes when father and mother stopped completing any of their case plan activities.
{12} The caseworker testified she provided drug referral paperwork and information to father. Additionally, the caseworker said father did not provide her with verified income but instead directed her to get paystubs from his attorney. The caseworker also stated father did not maintain consistent telephone contact with her and has failed to keep his telephone number up-to-date with FCCS. Father‘s biggest barrier to reunification with D.S., pursuant to the caseworker‘s testimony, was his lack of effort toward completing the case plan activities. The caseworker testified that the issues requiring FCCS to get involved in January 2017 had not been resolved.
{13} In describing D.S.‘s placement in his foster home, the caseworker testified that D.S. has special needs including behavioral issues and an individualized education plan at school to help manage his ADHD. The caseworker testified E.S. and D.S. as bonded “[t]o
{14} Usherala Johnson, the guardian ad litem for E.S. and D.S., testified that the children are able to articulate their wishes. E.S. has consistently expressed a desire to be adopted, telling the guardian ad litem that she does not believe father loves her and she does not believe mother can take care of her. The guardian ad litem testified that D.S. has consistently expressed a desire to stay in his current foster placement if he were not able to return to father‘s care. Though D.S. previously was opposed to the idea of adoption, the guardian ad litem testified that just prior to trial he began expressing an interest in adoption if it were with his current foster parent. The guardian ad litem testified that D.S. has consistently expressed a desire to continue to be able to visit with father even if the court were to grant the motion for PCC, though D.S. understands that he may not be able to visit with father if father‘s parental rights are terminated.
{15} The guardian ad litem testified that mother never had much engagement in the case. Additionally, the guardian ad litem testified that father‘s residence was “not appropriate * * * for anyone to sleep in” because it was too cluttered and without room for a person to safely sleep. (Tr. at 108.) She testified father indicated that he planned to clean out his apartment to make it habitable and that she specifically instructed him that he would need to contact the FCCS caseworker to schedule a new walk-through, but father did not do so prior to the trial. The guardian ad litem testified she was not aware that father had moved from that one-bedroom apartment.
{16} Ultimately, the guardian ad litem testified it was her recommendation that it was in the best interest of both E.S. and D.S. for the trial court to grant the motion for PCC and place the children in the permanent custody of FCCS. Specifically as to D.S., the guardian ad litem testified that she did not believe D.S. could return to father‘s care without protective services in place but D.S. had already been in placement for two years and ten months. The guardian ad litem described D.S. as being “somewhat bonded” with father. (Tr. at 122.) The guardian ad litem noted father had not demonstrated an ability to maintain suitable housing and has not been compliant with the drug and alcohol portions of his case plan. The guardian ad litem described father as exhibiting a lack of motivation to accomplish whatever would need to be done in order to have D.S. returned to his care.
{17} Father also testified on direct examination, stating he and mother had been separated for the past seven years, and he denied that mother has lived with him or temporarily stayed with him since they separated. Father testified he had maintained the same job since 2005. Though father admitted to occasionally consuming alcohol, he denied that he drank alcohol every night. Additionally, father stated he recently moved into new housing so D.S. would have more space. On cross-examination, however, father stated he had not yet moved into the new housing but that he hoped to be able to soon, indicating that he still lived in the one-bedroom apartment that the guardian ad litem had deemed unsuitable. Father testified he did not notify the FCCS caseworker or the guardian ad litem that he had moved because there was a period of time where he did not have a telephone. He also denied knowledge of the case plan.
{18} The trial court conducted an in-camera interview with D.S. during which D.S. stated that he wanted to return to his parents’ care, but if he could not do that, his preference was to stay in his current foster placement and continue to be able to visit with mother and father. D.S. stated he did not want to be adopted. D.S. also told the trial court that mother and father still live together.
{19} Following the trial, the trial court granted FCCS‘s motion for permanent custody of both E.S. and D.S. and terminated the parental rights of mother and father. The trial court considered the factors in
II. Assignment of Error
{20} Appellant assigns the following error for our review:
The trial court committed reversible error by terminating the appellant-father‘s parental rights when the decision was against the manifest weight of the evidence.
{21} In his sole assignment of error, father argues the trial court erred in granting permanent custody of D.S. to FCCS. More specifically, father asserts the decision to grant the motion for PCC was against the manifest weight of the evidence.
{22} “In reviewing a judgment granting permanent custody to FCCS, an appellate court ‘must make every reasonable presumption in favor of the judgment and the trial court‘s findings of facts.‘” In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. “‘[I]f the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the [juvenile] court‘s verdict and judgment.‘” In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
{23} “Judgments are not against the manifest weight of the evidence when all material elements are supported by competent, credible evidence.” J.T. at ¶ 8. “Pursuant to
{24} “Parents have a constitutionally-protected fundamental interest in the care, custody, and management of their children.” In re H.D., 10th Dist. No. 13AP-707, 2014-Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of Ohio recognizes the essential and basic rights of a parent to raise his or her child. In re Murray, 52 Ohio St.3d 155, 157 (1990). However, these rights are not absolute, and a parent‘s natural rights are subject to the ultimate welfare of the child. In re Cunningham, 59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the state may terminate the parental rights of natural parents when such termination is in the best interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8.
{25} In deciding to award permanent custody, the trial court must take a two-step approach. K.L. at ¶ 18. The court must first determine if any of the factors set forth in
{26} Once the trial court determines that one of the circumstances in
(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 public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(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 this section apply in relation to the parents and child.
{27} The trial court considered all of the above statutory factors with respect to D.S. and concluded that an award of permanent custody was in the best interest of the child. Father disagrees with the trial court‘s conclusions.
{28} Father‘s argument is not a challenge to any specific finding of the trial court under
{29} Under
{30} Next,
{31}
{32}
{33} Additionally, the trial court found that the only housing that father had made available to survey by FCCS was not appropriate safe and stable housing, and both the caseworker and the guardian ad litem testified father‘s apartment was not suitable for habitation by D.S. or anyone. While father testified he had secured new housing just days before trial, he did not inform the caseworker, the guardian ad litem, or D.S.‘s attorney of this new housing, and he was unable to provide any specific information about where the housing was located or when it might be ready for D.S. to live in it. Father demonstrated a lack of understanding of D.S.‘s basic needs. All of this evidence, as well as the evidence regarding D.S.‘s behavioral issues and educational needs, supports the trial court‘s finding that D.S. was in great need of a legally secure permanent placement to continue his physical, educational, emotional, and social development and that such a legally secure permanent placement could not be achieved without a grant of permanent custody to FCCS.
{34} Finally,
{35} Here, the record demonstrates the trial court thoroughly reviewed and weighed the evidence in relation to all factors relevant to determining whether granting permanent custody to FCCS was in D.S.‘s best interest. Having reviewed the record, we find competent, credible evidence supported the trial court‘s determinations as to each of those factors and its ultimate conclusion that granting the motion for permanent custody to FCCS was in the child‘s best interest. Thus, because the trial court‘s decision to grant the motion for permanent custody and terminate father‘s parental rights was not against the manifest weight of the evidence, we overrule father‘s sole assignment of error.
IV. Disposition
{36} Based on the foregoing reasons, the trial court‘s decision granting the motion for permanent custody was not against the manifest weight of the evidence. Having overruled father‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch.
Judgment affirmed.
BROWN and BROGAN, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).