In the Matter of: H.D. (H.D., Jr., Appellant)
No. 13AP-707
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 23, 2014
[Cite as In re H.D., 2014-Ohio-228.]
SADLER, P.J.
(C.P.C. No. 11JU-08-11263) (REGULAR CALENDAR)
Rendered on January 23, 2014
William T. Cramer, for appellant.
Rоbert J. McClaren, for appellee Franklin County Children Services.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
{1} Appellant, H.D., Jr. (“father“), appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which terminatеd his parental rights and granted appellee‘s, Franklin County Children Services (“FCCS“), motion for permanent custody of H.D. for purposes of adoption. For the following reasons, we affirm.
I. BACKGROUND
{2} On August 24, 2011, FCCS filed a complaint seeking custody of the minor child, H.D., who was born on July 3, 2011, alleging neglect and dependency because “[a]t the time of delivery, both Mother and [H.D.] tested positive for methadone.” (Aug. 24, 2011 Complaint, 1.) An Emergency Care Order was issued on August 25, 2011, granting
{3} Effective September 29, 2011, the trial court found H.D. to be a dependent minor, pursuant to
{4} On December 3, 2012, FCCS filed anew their motion for permanent custody. According to FCCS, “[p]utative Father * * * has failed to make any significant progress in his case plan objectives towards reunification with this child.” (Dec. 3, 2012 FCCS’ Motion for Permanent Custody, 4.) A hearing on FCCS’ motion for permanent custody was tried before a magistrate on March 25 and April 8 and 9, 2013. Therein, FCCS presented witnesses including Amy Dunfee, father‘s substance abuse counselor, Moniсa Kagey, Franklin County Family Drug Court Manager, father, Solena Helm, FCCS caseworker, and Charles Christopher Alley, the Guardian ad Litem (“GAL“). The GAL recommended the trial court “grant the P.C.C. motion to move forward with placement.” (Apr. 9, 2013 Tr., 10.) Father also testified in support of his own case-in-chief.
{5} In an amended decision filed June 11, 2013, the magistrate granted permanent custody to FCCS. Father filed objections to the magistrate‘s decision asserting the magistrate‘s decision was against the manifest weight of the evidence, and FCCS filed a memorandum contra. In denying father‘s objection, the trial court approved and adopted the magistrate‘s decision finding “that the magistrate properly granted [permanent custody] of [H.D.] to FCCS for purposes of adoption. The parental rights of
II. ASSIGNMENT OF ERROR
{6} Father brings a sole assignmеnt of error for our review:
The juvenile court‘s conclusion that termination of parental rights was in the best interest of the child was not supported by clear and convincing evidence.
III. STANDARD OF REVIEW
{7} “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).
{8} “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
IV. DISCUSSION
{9} In his sole assignment of error, father argues the trial court‘s decision determining it was in the best interest of H.D. to award permanent custody to FCCS and terminate his parental rights was not supported by clear and convincing evidence. Specifically, father asserts the trial court erred in finding FCCS met its burden, pursuant
{10} Parents have a constitutionally-protected fundamental interest in the care, custody, and management of their children. Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of Ohio has recognized the essential and basic rights of a parent to raise his or her child. In re Murray, 52 Ohio St.3d 155, 157 (1990). These rights, however, are not absolute, and a parent‘s natural rights are always subject to the ultimate welfare of the child. In re Cunningham, 59 Ohio St.2d 100, 106 (1979). Thus, in certain circumstances, the state may terminate the parental rights of natural parents when it is in the best interest of thе child. In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000); In re Wise, 96 Ohio App.3d 619, 624 (9th Dist.1994).
{11} “A decision to award permanent custody requires the trial court to take a two-step approach.” K.L. at ¶ 18. First, a trial court must determine if any of the factors set forth in
(a) The child is not abandoned or orphaned, has not 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 has not been in the temporary custody of one or more public children services agencies or private child placing аgencies for twelve or more months of a consecutive twenty-two-month period if, 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, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public childrеn 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 agеncies 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.
(Emphasis added.)
{12} Here, the trial court, pursuant to
{13} The trial court, upon review of the magistrate‘s dеcision, approved and adopted the entirety of the decision but, with respect to the threshold determinations, only specifically addressed the magistrate‘s alternative
{14} In the present case, father does not dispute that H.D. has been in the custody of FCCS for the requisite
{15} Therefore, although father specifically challenges the trial court‘s decision with respect to
{16} Because the
{17} With respect to the determination of a child‘s best interests, the trial court must consider all relevant factors, including, but not limited to, the following:
(a) The interаction 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 bеen 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 previоusly 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 оf the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{18} In granting permanent custody to FCCS, the trial court found each of the above factors weighed in favor of finding permanent custody to be in H.D.‘s best interest. Father asserts the trial court‘s determination, with respeсt to
{19} Pursuant to
{20} Upon review, we find the trial court‘s finding, as to
{21} Father testified that he missed visitation with H.D. for four months due to active warrants for his arrest and subsequent periods of incarceration for domestic violence and criminal mischief. Father acknowledged that he missed sеveral visits prior to his incarceration because he was “running from the [l]aw.” (Apr. 9, 2013 Tr., 56.) According to father, he was released from jail on January 25, 2013 and resumed visits with H.D. on February 2, 2013. Father testified that during visitation, H.D. “warms up to me after I‘d say 10 or 15 minutes, maybe 20 minutes and then we start playing.” (Apr. 9,
{22} Solena Helm, FCCS caseworker, testified that father did not visit with H.D. between August 1, 2012 and February 5, 2013, approximately five and one-half months. According to Helm, based upon her observations of father and H.D., “they do not have a parent/child bond.” (Apr. 8, 2013 Tr., 99.) Helm testified that H.D. dоes not know “that [father] is his dad and that there‘s this, you know, there‘s no like separation anxiety,” and it takes H.D. awhile to get comfortable with father. (Apr. 8, 2013 Tr., 99-100.) Helm acknowledged that the lack of a paternal bond was the result, in part, of father‘s extended absence. Helm also stated that H.D. has bеen with his foster and prospective adoptive parents since August 2011 and is bonded to the family. According to Helm, upon seeing his foster mother, H.D. “was just excited; like reaching for her, you know, couldn‘t wait to be picked up.” (Apr. 8, 2013 Tr., 101.)
{23} When specifically asked whether H.D. has bonded to his foster family, the GAL responded “that is an easy answer, it‘s a definite yes. * * * He interacts with * * * the foster mom as if she is mom.” (Apr. 9, 2013 Tr., 8.) According to the GAL, father and H.D.‘s bonding has not progressed because father was absent from H.D‘s life for a period of four to six months. According to the GAL, the court should “grant the P.C.C. motion * * * to move forward with placement.” (Apr. 9, 2013 Tr., 10.)
{24} Thus, despite father‘s claim that he is bonded with H.D. and that the mother‘s absence from H.D.‘s life was imputed against him, the record established that father and H.D. did not possess a parent/child bond and that father was absent from H.D.‘s life for a significant period of time. As such, “the trial court was free to assign more weight to the overwhelming testimony” presented by FCCS. J.T. at ¶ 15.
{25} Accordingly, with all the
V. CONCLUSION
{26} Having overruled father‘s sole assignment of error, the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is hereby affirmed.
Judgment affirmed.
DORRIAN and O‘GRADY, JJ., concur.