[Cite as In re A.J., 2016-Ohio-7979.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: A.J., K.J., C.J. and M.J. :
:
: C.A. CASE NO. 27137
:
: T.C. NOS. 2013-1914, 2013-1915,
: 2013-1916, 2013-1917
:
: (Civil appeal from Common Pleas
: Court, Juvenile Division)
:
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OPINION
Rendered on the ___30th___ day of _____November_____, 2016.
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HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P. O. Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
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DONOVAN, P.J.
{¶ 1} Petitioner-appellant Father appeals a decision of the Montgomery County
Court of Common Pleas, Juvenile Division, terminating his parental rights with respect to
four of his minor children, A.J., K.J., C.J., and M.J. (hereinafter referred to as “the
Children”), and awarding permanent custody of all of the Children to Montgomery County
Children’s Services (hereinafter “MCCS”). Father filed a timely notice of appeal with this
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Court on June 1, 2016.1
{¶ 2} A.J. was born in April of 2007. K.J. was born in September of 2009. C.J.
was born in April of 2010. M.J. was born in March of 2011. Father is the biological
father of A.J., K.J., and C.J., but not M.J. Father, however, is listed as the legal father
and guardian of all the Children.
{¶ 3} MCCS became involved with the Children in March of 2013, after Mother
gave birth to a baby who tested positive for illegal drugs. The record indicates that this
was the second child that Mother had given birth to who tested positive for drugs. Mother
also tested positive for drugs at the time of the child’s birth. In a separate case, Mother
and Father’s parental rights were terminated with respect to the infant born in March of
2013. We also note that in February of 2013, Father was arrested for possession of
marijuana and pills without a prescription.
{¶ 4} Thereafter, on March 18, 2013, MCCS filed a complaint in which it alleged
that the Children were dependent because of Mother and Father’s drug abuse and the
parents’ inability to provide basic necessities for them. On March 25, 2013, the juvenile
court awarded interim custody of the Children to MCCS. The Children were adjudicated
dependent on April 23, 2013. MCCS was awarded temporary custody of the Children
on July 24, 2013.
{¶ 5} In the early pendency of the case, MCCS created a case plan for Mother and
Father whereby they could address the issues leading to the removal of the Children from
1 We note that although Mother’s parental rights regarding all of the Children were also
terminated along with Father’s rights, Mother did not appeal the juvenile court’s decision.
Therefore, on appeal, we need only address the merits of the juvenile court’s decision as
it relates to Father.
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their care. The case plan for Father included a drug assessment and follow up
treatment, an order to obtain and maintain stable housing and employment, and complete
parenting classes, as well as to attend the Children’s various appointments.
{¶ 6} On May 27, 2014, the juvenile court granted MCCS the first extension of
temporary custody of the Children. Shortly thereafter, on September 12, 2014, MCCS
filed a motion for permanent custody of the Children. Mother filed a motion for a second
extension of temporary custody of the Children on December 8, 2014. On January 16,
2015, Father filed a motion for custody of the Children, or in the alternative, for a second
extension of temporary custody to MCCS.
{¶ 7} On January 23, 2015, a hearing was held before the magistrate regarding
MCCS’s motion for permanent custody, during which the trial court heard testimony from
several witnesses, including Mother, MCCS caseworker Kathy Hatton, and the Children’s
foster mother. The hearing was continued until April 2, 2015, at which time the
magistrate heard additional testimony regarding the motion for permanent custody of the
Children as well as the MCCS’s recent motion to suspend Father’s visitation. Mother
was not present at the continued hearing because she was incarcerated. Father was
present at the hearing but did not testify. The magistrate heard testimony from the
Children’s therapists and caseworkers from MCCS. Father’s sister and grandmother
also testified on his behalf.
{¶ 8} On July 27, 2015, the magistrate issued a decision terminating Mother and
Father’s parental rights and granting permanent custody of the Children to MCCS.
Represented by separate counsel, Mother and Father filed objections to the magistrate’s
decision on the same day, August 10, 2015. The juvenile court subsequently overruled
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Mother and Father’s objections and adopted the magistrate's decision in a judgment
issued on April 25, 2014.
{¶ 9} It is from this judgment that Father now appeals.
{¶ 10} Father’s sole assignment of error is as follows:
{¶ 11} “THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY TO
MONTGOMERY COUNTY CHILDREN’S SERVICES BECAUSE THAT AGENCY
FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT
CUSTODY WAS IN THE BEST INTEREST OF THE CHILD.”
{¶ 12} In his sole assignment, Father contends that the juvenile court erred when
it adopted the decision of the magistrate granting permanent custody of the Children to
MCCS. Specifically, Father argues that the evidence adduced at the hearing established
that he had completed “most” of his case plan objectives and he was sufficiently bonded
with the Children.
{¶ 13} R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The statute
requires the court to find, by clear and convincing evidence, that: (1) granting permanent
custody of the child to the agency is in the best interest of the child; and (2) either the
child (a) cannot be placed with either parent within a reasonable period of time or should
not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;
(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of
the child; or (d) has been in the temporary custody of one or more public or private
children services agencies for twelve or more months of a consecutive twenty-two month
period. In re K.M., 8th Dist. Cuyahoga No. 98545, 2012–Ohio–6010, ¶ 8, citing R.C.
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2151.414(B)(1).
{¶ 14} R.C. 2151.414(D) directs the trial court to consider all relevant factors when
determining the best interest of the child, including but not limited to: (1) the interaction
and interrelationship of the child with the child's parents, relatives, foster parents and any
other person who may significantly affect the child; (2) the wishes of the child; (3) 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; (4) 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; and (5) whether any of the
factors in R.C. 2151.414(E)(7) through (11) are applicable.
{¶ 15} Father does not dispute that at the time of the hearing, the Children had
been in the temporary custody of the Agency for over twelve months of a consecutive
twenty-two month period. The Children have resided together at the same foster
placement since they were taken into the custody of MCCS in April of 2013. The
evidence supports a finding that the Children are bonded with their foster family. The
Children refer to their foster parents as “mom” and “dad,” respectively. The evidence
also established that the Children are adoptable, and that at the time of the hearing, the
foster family expressed their desire to adopt all of the Children.
{¶ 16} Foster mother testified that after visits with Father, M.J. was noticeably
quieter and started wetting the bed and spreading feces on the floor in the bathroom.
Foster mother also testified that K.J. began calling her and her husband by their first
names because Father told the Children not to call them “mom” and “dad.” Foster
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mother further testified that A.J. and K.J. reported to her that they were very upset
because at a recent visit, Father had stated that he was going to kill the foster parents
after the Children were released into his care. The Children indicated to Alicia Green,
an MCCS caseworker, that they were scared of Father because he told them he was
going to kill the foster parents as well as MCCS employees.
{¶ 17} Kevin Denzler, a licensed therapist employed by the National Youth
Advocate Program, testified that he has counseled A.J. since August of 2013. Denzler
testified that based on his interactions with A.J., he believes she may have past exposure
to domestic violence in her biological parents’ home and could be moderately traumatized
as result. Denzler testified that A.J. stated that she and the other children were scared
and anxious after a visit with Father in March of 2015 because he was yelling at the
children for telling others about the way he acted during their visitation time at MCCS.
A.J. told Denzler that she was concerned that if she and the other children were to be
placed back with Father, their lives would not get better, but only get worse. Green
testified that in March of 2015, there was an altercation between Father and a Sheriff’s
Deputy during which Father yelled profanities at the deputy and also called the Children’s
former MCCS supervisor derogatory names. The Children reported to Green that while
they love Father and like to see him, they were scared of the way he acted and wanted
the foster parents to be present with them during visitation. M.J. informed Green that
essentially he believes he is treated badly because he is not Father’s biological child.
M.J. indicated that he wanted to live with his foster parents.
{¶ 18} Additionally, the record establishes that Father has an ongoing substance
abuse problem that he has failed to properly address. In early 2013, Father tested
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positive for drugs and was referred to CAM and completed the outpatient program.
Thereafter, however, on December 18, 2014, at the beginning of a visitation with the
Children, Father submitted to a drug screen which came back positive for cocaine, heroin,
alcohol, and other unspecified opiates. Green testified that Father disputed the drug test
results, stating that he only smoked cigarettes. Father claimed the drug test was
incorrect. Father was referred to an assessment at CAM after the positive drug screen,
but he never attended the assessment claiming that he was “too busy.” Green also
provided Father with a list of local adult in-patient and outpatient treatment providers, but
he never contacted any of the local treatment facilities.
{¶ 19} The record also establishes that Father has failed to provide adequate
housing for the Children. Specifically, Father began living with his parents after the
Children were placed in the temporary custody of MCCS. MCCS supervisor Kathy
Hatton testified that Father’s parents’ house did not have sufficient bed space for all of
the Children. Sometime thereafter in September of 2014, former MCCS caseworker
Michelle Smith testified that she did a home visit at Father’s purported new residence
where he stated he was living with his grandmother. Smith testified that it was apparent
that Father was not actually living at the residence because the room he stated was “his”
was filled what appeared to be his grandmother’s personal items. Moreover, Smith
testified that the grandmother’s house did not contain sufficient bed space and bedding
for all of the Children. Green further testified that at the time of the hearing, Father had
failed to locate adequate, stable housing for the Children and himself.
{¶ 20} Furthermore, we note that all of the Children were involved in some type of
therapy or counseling at the time of the permanent custody hearing. The record
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establishes that Father never contacted any of the Children’s therapists or counselors
regarding their progress. A.J. and K.J. were both struggling at school when they were
initially placed in foster care. A.J. and K.J. were therefore placed in special programs to
help them succeed. Although he was told to contact the school regarding their progress,
Father has never contacted A.J. and K.J.’s school. The record also establishes that
Father has never contacted the Children’s foster mother regarding any medical and/or
dental appointments they have attended, nor has Father attended any such
appointments. Father indicated to Green that he did not think that the Children needed
to be involved with any special services if they were returned to his custody. Father
further stated that the only reason the Children were receiving help was because MCCS
was involved.
{¶ 21} Finally, the GAL indicated that the Children’s best interests would be served
by granting custody to MCCS. Father expresses the desire to retain custody of the
Children, but he failed to comply with the terms of his case plan, which was designed to
aid him in rectifying the problems that resulted in MCCS's intervention. Specifically, the
record establishes that Father failed to maintain stable housing, and he has a significant,
ongoing substance abuse problem that he failed to properly address. Moreover, his
angry, erratic, and potentially violent behavior during visitation with the Children speaks
to his questionable fitness as a caretaker and provider for the Children.
{¶ 22} A trial court's decision on termination “will not be overturned as against the
manifest weight of the evidence if the record contains competent, credible evidence by
which the court could have formed a firm belief or conviction that the essential statutory
elements for a termination of parental rights have been established.” (Citations omitted).
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In re A.U., 2d Dist. Montgomery No. 22264, 2008–Ohio–186, ¶ 15. Furthermore, “issues
relating to the credibility of witnesses and the weight to be given the evidence are primarily
for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007–Ohio–3433, ¶ 22.
The “rationale of giving deference to the findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984); In re J .Y., 2d Dist. Miami No. 07–CA–35, 2008–Ohio–3485,
¶ 33.
{¶ 23} Our review of the record, transcript, and exhibits establishes that there is
clear and convincing evidence which supports the juvenile court's decision finding that
the statutory elements for termination under R.C. 2151.414(B) have been satisfied.
Thus, the juvenile court did not err when it adopted the decision of the magistrate
awarding permanent custody of the Children to MCCS.
{¶ 24} Father’s sole assignment of error is overruled.
{¶ 25} Father’s sole assignment of error having been overruled, the judgment of
the juvenile court is affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Heather N. Jans
Kirsten Knight
Andrew Schlueter
Julia Kolber
Hon. Anthony Capizzi