In re L.H.
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 10, 2022
Christopher Kapsal, for Appellant Mother,
Mary Salyer, Attorney for the Guardian Ad Litem for L.H.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas C. Varney, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services.
BOCK, Judge.
{1} Appellant mother J.H. appeals the trial court‘s judgment terminating her parental rights to her child, L.H. We affirm the trial court‘s judgment.1
Relevant Facts and Procedural History
{2} In November 2018, the Hamilton County Department of Job and Family Services (“JFS“) filed a complaint for emergency interim custody of L.H. and his older sibling, M.W., after JFS received reports of hazardous conditions in the home and that L.H.‘s father, R.D., was abusing J.H. JFS alleged that, when J.H. was at the hospital in preterm labor with L.H, R.D. choked J.H. in the hospital room, spat on her, told her that he hoped that the baby would die, and threw her call light into the bathroom so that she could not reach it, all while she screamed for help.
{3} J.H. tested positive for marijuana when L.H. was born in October 2018. Nevertheless, L.H. was discharged to J.H. from the hospital. She and L.H. lived with A.H., L.H.‘s maternal grandmother.
Interim Custody Hearing
{4} A JFS caseworker testified that J.H. had filed a temporary restraining order (“TPO“) against R.D. based on the assault at the hospital, but she dropped it the day before the interim custody hearing. J.H. testified that she had dropped the TPO because she and R.D. “had a sit-down and talked about the whole incident” before the restraining-order hearing.
{5} J.H. had informed both JFS and a YWCA assessor that R.D. had a history of committing domestic violence against her. J.H. had described an incident
{6} JFS‘s initial safety plan required L.H. to live with J.H. and A.H., under A.H.‘s supervision. J.H. was required to engage in domestic-violence counseling. In October 2018, before the interim custody hearing, JFS discovered that J.H. was not following the safety plan, and J.H. told JFS that she would not follow the safety plan.
{7} The JFS caseworker testified that R.D. had several charges for domestic violence that had been dismissed for want of prosecution, which JFS believed showed a “pattern that [R.D.] has in his past and he has the ability to potentially manipulate whoever his partner is into dropping charges against him.”
{8} J.H. testified that she had not been in contact with R.D. since L.H. had been born. But a JFS assessment supervisor testified that J.H. recently had told her that the dependency case was “putting a wedge between her and [R.D.‘s] relationship.” J.H. had told JFS that she would be with R.D. if it were not for the dependency case. J.H. later told JFS that she wanted to give R.D. another chance because “people make mistakes.”
{9} Although JFS had been given emergency custody of L.H. on the night before the hearing, J.H. refused to tell JFS where L.H. was or to meet JFS to turn physical custody over to JFS. The JFS intake caseworker further testified that L.H. was at risk of imminent harm if custody were remanded to J.H.
Despite services, J.H. remained in a relationship with R.D.
{11} J.H.‘s case plans required her to engage in domestic-violence counseling, individual counseling, and parenting education. An April 2019 semiannual report (“SAR“) reflected that J.H. had completed “Women Helping Women,” a domestic-violence assessment through the YWCA, and was provided with supportive services under her case plan. J.H. reported that she was no longer in a relationship with R.D. and did not live with him. But a September 2019 SAR report reflected that J.H. had stated that she was in a relationship with R.D. and intended to continue that relationship.
{12} In October 2019, JFS modified its temporary-custody motion to a motion for permanent custody of L.H., alleging that J.H.: (1) failed to attend L.H.‘s medical appointments despite being notified, (2) was pregnant again by R.D., (3) had not been to counseling between May 2019 and August 2019, and (4) police continued to respond to J.H.‘s home for “family trouble.” The motion further alleged that J.H. and R.D. continued their relationship, which was marred by domestic violence.
{13} In December 2019, J.H. gave birth to another child. R.D. was the alleged father. The parents had to visit the children separately due to domestic-violence issues.
{14} In July 2020, the magistrate determined that probable cause existed that J.H. continued a relationship with R.D. despite her engagement in domestic-violence services. R.D. had listed J.H.‘s address as his own, and there had been “multiple police runs to [J.H.‘s] home as recently as May and June [2020] involving
{15} An October 2020 entry stated that R.D. had been staying the night at J.H.‘s home “off and on” for the previous two years.
{16} In November 2020, the guardian ad litem (“GAL“) moved to commit L.H. to the permanent custody of JFS. But JFS moved to terminate temporary custody of L.H. and remand custody to J.H. and sought protective-supervision orders.
{17} In March 2021, JFS filed a new motion for permanent custody of L.H., alleging that J.H. did not have stable housing and that it was concerned about her employment stability.
{18} In a May 2021 hearing involving L.H.‘s siblings, a JFS caseworker testified that J.H. had been successfully discharged from parenting classes and individual therapy, but JFS was concerned that she had not found stable housing and, according to R.D., she was still in a relationship with him. J.H. testified that she did not have housing, was staying with her sister, and was actively looking for an apartment. J.H. testified that she was employed and was on probation. J.H. also stated that R.D. did not attend the in-home visits, but that she did tell JFS that there were times when R.D. would spend the night. J.H. denied that R.D. lived with her or that they were in a relationship. She testified that she had not seen R.D. since December 2020.
Permanent-custody hearing
{20} The trial court held permanent-custody hearings for L.H. and his sibling in July, August, and September 2021.
{21} J.H. completed a diagnostic assessment form (“DAF“) and parenting classes. She engaged in both domestic-violence services and individual therapy. But she did not have independent housing. J.H. was employed at Frisch‘s. She had been visiting the children. Supervised visits were being held at J.H.‘s home, but they were moved back to the Family Nurturing Center (“FNC“) due to J.H. losing her housing.
{22} R.D. never completed services. His history of domestic violence against J.H. “caused major concerns.”
{23} As of the July 2021 hearing, JFS believed that R.D. and J.H. were still in a relationship because the “[June 2021] complaint that was filed by [J.H.] was dismissed.”
{24} JFS believed permanent custody was in the children‘s best interest because, according to “different court documents,” the domestic violence against J.H. by R.D. had “been going on and off since the case has been open,” the relationship
{25} L.H.‘s foster mother testified that L.H. was six weeks old when he was placed with her. He had more than 80 medical appointments to address his torticollis, which required him to wear a helmet. The foster mother informed J.H. of “the majority” of appointments in the first year of L.H.‘s life but began to inform only JFS because J.H. only appeared for three appointments.
{26} J.H.‘s therapist, Robert Perkins, testified that he provided emotional support and cognitive behavioral therapy. He testified that J.H. and R.D. had been in an on-again, off-again relationship. J.H. had told him that she had her own residence and R.D. “would visit the home sometimes.” J.H. never disclosed any issues of domestic violence in her relationship with R.D. Perkins thought the issues had existed only before J.H. began therapy.
{27} J.H. testified that she had engaged in parenting classes and Women Helping Women services, completed individual therapy, and appeared for visits with L.H. J.H. testified that FNC never raised any issues about her parenting during the visits. J.H. stated that the foster parents were “doing a wonderful job” and that she was ready for her children to come home.
{28} J.H. testified that she was with R.D. “on and off” from about January 2018 until December 2019 when she gave birth to L.H.‘s younger sibling, but the relationship ended at that point. They remained in communication. She testified that the protective orders were denied because service could not be obtained on R.D.
{30} J.H. testified that she had not spoken to R.D., she had not had contact with R.D. since July 2021, she and R.D. were not together, she would not engage him in conversation if she encountered him, and she would call the police if he tried to threaten her. On cross-examination, J.H. conceded that she responded to R.D.‘s Facebook messages and had telephone communication with him, but that he was now blocked.
{31} J.H. conceded that her therapist was correct in that she was in an on-again, off-again relationship with R.D. during the time that she was receiving therapy.
{32} In October 2021, the magistrate committed L.H. to JFS‘s permanent custody. Following objections, the juvenile court found that the magistrate properly determined the factual issues and applied the law, stating that “it is clear that the services * * * did not aid in the behavioral changes that were sought and are necessary in order for [her] children to safely return to her care” and that J.H. did not have independent, stable housing at the time of trial. The trial court stated the facts, that it conducted an independent review of the record, and did not “rewrite here a separate analysis from that of the magistrate, as the magistrate appropriately considered and weighed the necessary statutory factors.” It adopted the magistrate‘s decision, which analyzed the statutory factors as follows.
R.C. 2151.414(D)(1)(a) Interactions and Interrelationships
{33} L.H. began living with his foster parents shortly after his discharge from the hospital when he was born. He had formed a bond with his foster family and his foster parents wished to adopt him. His foster parents had “made a significant commitment” by taking L.H. to approximately 80 medical appointments to address his special needs. J.H. did not attend the medical appointments, but she visited L.H. regularly and formed a positive bond with him. The court found that removing him from his foster home would be traumatic as it is the only home he had ever known.
R.C. 2151.414(D)(1)(b) The Wishes of the Child
{34} L.H. was three years old at the time of the permanent-custody hearing. His GAL supported committing him to JFS‘s permanent custody.
R.C. 2151.414(D)(1)(c) Custodial History
{35} L.H. had been living with his foster parents for nearly three years, almost his entire life.
R.C. 2151.414(D)(1)(d) Child‘s Need for Legally Secure Permanent Placement
{36} While placing L.H. with relatives would achieve the need for a legally secure permanent placement, it was only one factor to consider.
R.C. 2151.414(D)(1)(e) Whether Factors in (E)(7)-(10) Apply
{37} L.H. was abandoned by R.D. under
Standard of Review
{38} Parents have a paramount right to the custody of their children; therefore, the juvenile court‘s determination to grant permanent custody to JFS must be supported by “clear and convincing” evidence. In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, 46. Clear and convincing evidence is evidence sufficient to “produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “We will not substitute our judgment for that of the trial court applying a clear-and-convincing standard where there is ample competent and credible evidence supporting the trial court‘s determination.” In re A.M., 1st Dist. Hamilton No. C-190027, 2019-Ohio-2028, ¶ 16.
{39} A review of the sufficiency of the evidence is different than a review of
Assignments of error
J.H. was afforded a fair hearing
{40} J.H.‘s first assignment of error asserts that the decision is unclear whether it was based on evidence that was heard during L.H.‘s permanent-custody hearing. She points out that the magistrate‘s decision considered factual findings from related custody trials. J.H. raises due-process concerns, arguing that she was denied a fundamentally fair hearing.
{41} J.H. failed to raise this issue in her objections to the magistrate‘s decision, which confines our review to plain error. See
{42} The juvenile court held joint hearings for L.H. and his siblings. J.H. appears to argue that L.H.‘s trial should have been severed from that of the other two children‘s trials. But
{43} Alternatively, J.H. may be arguing that because the magistrate‘s decision mentioned facts developed in other hearings, it depended on facts arising from those hearings. But the examination of witnesses specifically referred to each child. The court‘s legal conclusions and findings of fact were broken down by each child to avoid confusion as to what evidence was considered in each child‘s matter. The court considered evidence that was directly relevant to L.H.‘s case.
{44} We do not find plain error. Therefore, J.H.‘s first assignment of error is overruled.
{45} In her second assignment of error, J.H. argues that the juvenile court abused its discretion by adopting the magistrate‘s decision as it did not contain required consideration of the statutory factors. She argues in her third assignment of error that the magistrate‘s finding that permanent custody was in L.H.‘s best interest was based on insufficient evidence and was against the manifest weight of the evidence. We disagree.
{46} Before terminating parental rights and granting permanent custody to a public child-services agency, a juvenile court must apply the two-pronged test established by
{47} The first prong of the permanent-custody test is satisfied when a child is in the temporary custody of JFS for 12 or more months of a consecutive 22-month period.
{48} The second prong of the test requires the juvenile court to determine whether permanent custody is in the child‘s best interest. In re Allah, 1st Dist. Hamilton No. C-040239, 2005-Ohio-1182, ¶ 10. The trial court is required to consider “all relevant factors,” including five specific factors in the statute.
{49} The trial court properly considered the best-interest factors under
{50} The trial court‘s judgment was supported by clear and convincing evidence. L.H. was removed from J.H.‘s home because she was in a violent relationship. She remained in a violent relationship with R.D., despite her completing the case-plan services. J.H. lacked stable housing. Finally, J.H. only attended three of more than 80 of L.H.‘s medical visits. Clear and convincing evidence supports the trial court‘s finding that J.H. failed to demonstrate that she could provide a safe and stable home for L.H.
{51} Moreover, this is not one of those rare situations in which the juvenile court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed.
{52} We overrule J.H.‘s second and third assignments of error.
{53} The decision to terminate a parent‘s parental rights requires serious consideration and should not be taken lightly. We have thoroughly reviewed the record and hold that it supports the juvenile court‘s judgment terminating J.H.‘s parental rights and granting permanent custody to JFS. Therefore, we affirm the juvenile court‘s judgment.
Judgment affirmed.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.