In re A.H.

[Cite as In re A.H., 2020-Ohio-3102.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: A.H. : APPEAL NOS. C-200065
C-200086
: TRIAL NO. F14-1109X

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 27, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee The Hamilton County Department of
Job and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Adam Hardin, Assistant
Public Defender, Guardian ad Litem for A.H.,

Cynthia Daugherty, for Appellant Mother,

Matthew Miller, Guardian ad Litem for Mother,

Roger W. Kirk, for Appellant Father.
 OHIO FIRST DISTRICT COURT OF APPEALS

Z AYAS , Judge.

{¶1} Appellants, S.W. (“Mother”) and A.H. (“Father”), separately appeal

from the judgment of the Hamilton County Juvenile Court granting permanent

custody of their daughter, A.H., to the Hamilton County Department of Job and

Family Services (“HCJFS”). For the following reasons, we affirm.

I. Facts and Procedural History

{¶2} A.H. was born on November 20, 2018, and was found to have acquired

a life-threatening illness in utero from her Mother, which required immediate

intervention and ongoing treatment.

{¶3} Shortly after A.H.’s birth, HCJFS received a report through 241-KIDS,

Hamilton County’s hotline to report suspected cases of child abuse or neglect,

because Mother had lost custody of her other two children as a result of neglect and

dependency.

{¶4} Mother previously lost custody of her then-two and three-year-old

children in August 2016. Permanent custody was granted to HCJFS primarily

because the juvenile court found that Mother’s “profound cognitive delays

prevent[ed] her from keeping her children safe.” Mother’s diagnostic assessment at

that time indicated that Mother had been diagnosed with depressive disorder,

cannabis abuse, and unspecified mental retardation, and noted that she was

suffering from a life-threatening illness. The court’s entry indicated that maternal

grandmother was a crack cocaine addict and that her use of drugs while she was

pregnant led to Mother’s cognitive disabilities.

{¶5} Mother’s older two children were initially removed because she kept

the home in a filthy condition, allowed random people to live in her apartment with

her children, and was dating A.H.’s Father, a convicted sex offender, who along with

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Mother was suspected of physically abusing Mother’s eldest child. Mother was

receiving housing and case-management services from Hamilton County

Development Disability Services (“DDS”) based on her cognitive delays and due to

her illness. But the court determined that despite the services from DDS and HCJFS,

Mother could not complete her case plan or remedy the problems that caused the

children’s removal from her home. Additionally, during supervised visitation with

the children, Mother needed constant redirection in order to care for them

appropriately.

{¶6} The court ultimately found that because Mother could not meet the

special needs of her children, both of whom had developmental delays, or meet her

own basic needs, such as maintaining the medication regimen to treat her serious

illness, the termination of her parental rights was in the children’s best interest.

Mother’s children were subsequently placed in a foster home together.

{¶7} On November 23, 2018, after an assessment worker investigated the

report to 241-KIDS, HCJFS took custody of A.H. An order of interim custody was

made by agreement a few days later. HCJFS then filed a complaint for permanent

custody and moved the court for an order that “reasonable efforts” were not

required. Under R.C. 2151.419(A)(2), HCJFS is not required to make reasonable

efforts to return a child to the child’s home if “[t]he parent from whom the child was

removed has had parental rights involuntarily terminated with respect to a sibling of

the child.” Because Mother had her parental rights terminated with respect to her

two other children, siblings of A.H., HCJFS’s motion was granted.

{¶8} On July 30, 2019, A.H. was adjudicated dependent. The juvenile court

found that A.H. lacked parental care by reason of the mental limitations of her

parents and that it was in A.H.’s best interest because of her medical needs that

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HCJFS assume guardianship. This determination was made based on testimony

from HCJFS assessment worker Audrey Laker, who investigated the initial report at

the hospital, and on a review of A.H.’s medical records and the judgment entry

terminating Mother’s parental rights to her two other children.

{¶9} Laker testified to her concerns about how Mother planned to care for

her newborn, explaining that Mother struggled to provide details about her care,

such as when and how much she should be fed. While Laker did not observe Mother

feed A.H., when she asked Mother how much formula she needed to feed her,

Mother supposed she would mix 20 ounces of water with 20 ounces of formula. And,

when Laker asked Mother how often she needed to bathe the baby, Mother said every

two weeks. Laker also mentioned her concerns with how Mother planned to

transport A.H. to and from necessary medical appointments and regular check-ups

given her limitation in DDS services, which at that time only covered transportation

for herself.

{¶10} Laker also testified to her concerns about Father, explaining that he

was verbally aggressive and began yelling at Mother in the hospital room as she was

crying. Mother described to Laker previous instances of Father’s domestic violence

towards Mother but said that Father had changed. Mother told Laker that Father

was living with her. Substantiated allegations of physical violence by Father against

Mother were also detailed in the judgment entry regarding Mother’s other two

children.

{¶11} Neither Mother nor Father appealed A.H.’s dependency adjudication.

{¶12} A case plan was put in place for Father. Father was required to

complete a diagnostic assessment, attend the Fatherhood Program and parenting

classes, attend domestic-violence awareness classes, participate in random drug

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screens and an outpatient drug rehabilitation, maintain stable housing and a stable

income, and regularly visit A.H. at the Family Nurturing Center.

{¶13} The case proceeded to a trial on a disposition for permanent custody

based on HCJFS’s complaint. Hearings were held in July, September, and November

2019, at which Mother, Father, and caseworkers from HCJFS and DDS testified.

{¶14} On January 31, 2020, the juvenile court concluded that A.H. could not

be placed with either of her parents within a reasonable time or should not be placed

with either of her parents, and held that it was in the best interest of A.H. to

permanently terminate Mother’s and Father’s parental rights and place A.H. in the

permanent custody of HCJFS. Mother and Father now separately appeal.

II. Analysis

{¶15} In her sole assignment of error, Mother argues that the trial court

erred by granting permanent custody of A.H. to HCJFS. Mother contends that the

trial court’s findings that it is in A.H.’s best interest to grant permanent custody to

HCJFS and that A.H. cannot be placed with her within a reasonable period of time

are not supported by the evidence, especially where the entry provided no references

to the relevant sections of the Revised Code.

{¶16} Father asserts two assignments of error. In his first assignment of

error, Father argues that the juvenile court abused its discretion and erred in denying

his request for a continuance so that he could be present at the entire trial on the

termination of his parental rights. In his second assignment of error, Father argues

that the trial court erred by granting permanent custody of A.H. to HCJFS. Father

contends that the juvenile court’s denial of his request for an extension of temporary

custody and the juvenile court’s finding that A.H. could not be returned to him

within a reasonable period of time were not supported by clear and convincing

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evidence. He also argues that the juvenile court “failed to specify the statutory

section under R.C. 2151.414 for the factual findings supporting its decision.” We

address Mother’s assignment of error and Father’s second assignment of error

together.

Standards of Review

{¶17} In a case involving the termination of parental rights, an appellate

court reviews the record and determines whether the juvenile court’s decision was

supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-

110363, 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),

paragraph three of the syllabus. Where some competent and credible evidence

supports the court’s decision, this court will not substitute its judgment for that of

the juvenile court. In re W.W. at ¶ 46.

{¶18} A review of the sufficiency of the evidence is different than a review of

the weight of the evidence. In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-

150310, 2015-Ohio-3247, ¶ 15. To determine whether there was sufficient evidence

upon which to terminate parental rights, the court determines whether some

evidence exists on each element. It is a test for adequacy and is a question of law. Id.

at ¶ 15. When conducting a weight-of-the-evidence review in permanent-custody

cases, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether in resolving

conflicts in the evidence, the juvenile court clearly lost its way and created such a

manifest miscarriage of justice that the judgment must be reversed. Id. at ¶ 16.

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Permanent Custody

{¶19} A public children-services agency may seek permanent custody of an

abused, neglected, or dependent child in one of two ways. The agency may either

request permanent custody as part of its original complaint, or it may obtain

temporary custody and subsequently file a motion for permanent custody. R.C.

2151.413, 2151.27, and 2151.353(A)(4); see In re Nibert, 4th Dist. Gallia No. 03CA19,

2004-Ohio-429, ¶ 13. In this case, HCJFS requested permanent custody as part of

its original complaint, to be determined in the initial disposition.

{¶20} In order to grant permanent custody in the initial disposition, the trial

court must determine: (1) that the child cannot be placed with a parent within a

reasonable time or should not be placed with either parent, pursuant to R.C.

2151.414(E); and (2) that permanent commitment is in the best interest of the child,

pursuant to R.C. 2151.414(D). R.C. 2151.353(A)(4); see In re B.E.M., 9th Dist. Wayne

No. 04CA0028, 2004-Ohio-4959, ¶ 7-8. Mother and Father challenge both of these

determinations.

{¶21} In regard to the first requirement, when determining whether a child

can or should be placed with either parent, the juvenile court must find by clear and

convincing evidence that at least one of the factors enumerated in R.C. 2151.414(E)

exist as to each of the child’s parents.

{¶22} In this case, the juvenile court did not cite any of the statutory

subsections—R.C. 2151.414(E)(1) through (16)—within its entry. However, the

juvenile court’s detailed recitation of its findings, in which it paraphrased the

language of the enumerated factors, in addition to the record, supports at least three

factors of R.C. 2151.414(E). See In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738

(1996) (requiring the basis given by the trial court to be an enumerated factor).

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Accordingly, it is evident that the juvenile court found that A.H. cannot or should not

be placed with either parent because: the parents failed to remedy the conditions

that caused her removal, pursuant to R.C. 2151.414(E)(1); the parents’ ability to

properly care for A.H. is precluded by chronic mental-health issues and chemical

dependency, pursuant to R.C. 2151.414(E)(2); and Mother had her parental rights

terminated as to siblings of A.H., pursuant to R.C. 2151.414(E)(11).

{¶23} The record demonstrates that Mother had her parental rights

terminated with respect to her two older children. Because only one factor need

apply under R.C. 2151.414(E) to support a court’s finding that a child cannot be

placed with either parent within a reasonable period of time, and because the

juvenile court properly found R.C. 2151.414(E)(11) to apply to the case at bar, we

decline to review the court’s analysis of the other factors also applicable to Mother.

See In re Wingo, 143 Ohio App.3d 652, 659, 758 N.E.2d 780 (4th Dist.2001).

{¶24} As to Father, the record demonstrates that Father completed very little

of his case plan and remained a heavy marijuana user throughout the case. He failed

to complete a diagnostic assessment because he appeared at the assessment under

the influence of marijuana and never returned to complete the assessment while

sober. He did not attend the Fatherhood Program, parenting classes, domestic-

violence awareness classes, or participate in random drug screens and outpatient

drug rehabilitation. He testified that he currently smokes marijuana, and previously

told HCJFS that he regularly smoked “three or four joints a day.”

{¶25} Father also failed to maintain stable housing or a stable income. At

the time of trial, in November 2019, he testified that he only worked odd jobs and

lived with his wife of nine years and her family, after Mother had “put him out” of her

apartment following an incidence of domestic violence for which he was arrested.

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During the first hearing in July 2019, he was still incarcerated for domestic violence.

Father also failed to regularly visit A.H. at the Family Nurturing Center. Though he

claimed that he had transportation issues and that HCJFS did not provide him with

enough bus fare to get to and from visitation, Father testified that his caseworker

regularly gave him six to eight bus fare cards at a time when he asked for them.

{¶26} In regard to the second requirement, the juvenile court found that

permanent custody was in the best interest of the child. See R.C. 2151.414(D). In

making this determination, the juvenile court was required to consider all relevant

factors, including, but not limited to, the following: (1) 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; (2) 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;

(3) the custodial history of the child; (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) apply in relation to the parents and child. R.C.

2151.414(D).

{¶27} The first factor deals with personal interactions and interrelationships.

A.H. was placed in the interim custody of HCJFS shortly after her birth. Mother did

consistently visit with A.H. and was noted to be very caring and loving towards her.

An HCJFS caseworker testified that Mother acted appropriately during visits, in that

she was able to change A.H.’s diapers and sing to her, but a significant concern was

noted on the Family Nurturing Center report regarding Mother’s ability to prepare

bottles to feed A.H. Father’s visits were inconsistent, and he was eventually required

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to call the Family Nurturing Center ahead of time due to his poor attendance. A.H. is

currently with her siblings in foster care, and the foster parent expressed an interest

in adopting A.H., along with her siblings.

{¶28} The second factor concerns the wishes of the child. Because A.H. was

only eight months old at the time the permanent-custody hearings began, her wishes

were expressed through her guardian ad litem. Her guardian ad litem strongly

recommended permanent custody to HCJFS.

{¶29} The third factor concerns the custodial history of the child. A.H. was

removed from Mother’s and Father’s care from the hospital and has been in the same

foster home with her siblings for the entirety of the case.

{¶30} The fourth factor is the child’s need for a legally secure placement and

whether that type of placement can be achieved without a grant of permanent

custody to the agency. The juvenile court said that it “does not question [Mother’s]

love for her child, and her almost-perfect attendance at supervised visitation

indicates that she wants to be a mother to her child,” but went on to state that it

cannot ignore Mother’s deficiencies. We agree that it is clear from the record that

Mother loves her daughter, wants her in her house, and desires to be a good and

effective parent. However, it is also clear that Mother’s cognitive impairment

coupled with her inability to manage her own needs and avoid violent relationships

preclude her from providing a safe and nurturing placement for A.H. We emphasize

that Mother’s cognitive impairment alone does not disqualify her from consideration

as a secure placement. See In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862

N.E.2d 829, ¶ 37 (mental retardation alone does not support the termination of a

parent’s fundamental right to raise his or her child). It is her impairment in

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combination with the record of other objective evidence that supports permanent

placement of A.H. with HCJFS.

{¶31} Mother has made a good-faith effort to participate in the services

offered through DDS and HCJFS. She was able to temporarily increase her weekly

services provided through DDS to help maintain her home, she obtained part-time

employment, and she enrolled in part of a parenting class offered through HCJFS.

Unfortunately, Mother has been unable to progress significantly in demonstrating

her ability to provide for her daughter or herself on a daily basis. A DDS supervisor

testified at trial that she had received multiple reports about the condition of

Mother’s home, and said that several providers for household chores and personal

care had stopped their services to Mother because Mother would refuse to maintain

her apartment in a suitable condition and would sometimes not let them inside.

Audrey Laker testified that upon an unannounced visit to Mother’s home, Father was

there and appeared under the influence of marijuana, and the home was cluttered

and smelled of marijuana and cigarette smoke. Another HCJFS caseworker testified

to his concern that Mother’s cognitive delays led to her inconsistency in using her

DDS services and said that to consider Mother for placement, she would need to have

someone there at least 12 to 16 hours per week to help her support A.H.

{¶32} The juvenile court found that Mother lacks a strong support system

from within her family to help care for a young child, and Mother admitted as much.

Mother also continued to engage in domestically-violent relationships. While she

ended her relationship with Father and participated in some domestic-violence

awareness classes, she began another violent relationship during the pendency of

this case. Mother admitted at trial that the police were called to her home on more

than six occasions for domestic disturbances involving her more recent boyfriend. In

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one instance, Mother’s boyfriend choked and hit her. An HCJFS caseworker testified

that Mother’s continued involvement in violent relationships demonstrated her poor

decision-making and was a contributing factor in the agency’s move for permanent

custody.

{¶33} HCJFS had no concerns with Mother’s apartment, which a caseworker

considered stable housing, noting that Mother had a crib inside but little other

furniture. However, a legally secure permanent placement “ ‘is more than a house

with four walls. Rather, it generally encompasses a stable environment where a child

will live in safety with one or more dependable adults who will provide for the child's

needs.’ ” In re P., 1st Dist. Hamilton No. C-190309, 2019-Ohio-3637, ¶ 42, quoting

Matter of K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 87 (4th Dist.2018).

{¶34} The court found that Father was largely absent from A.H., despite

engaging in some supervised visitation. This finding is supported by the record,

which demonstrates Father’s consistent refusal to stop using marijuana and follow

his case plan.

{¶35} The fifth factor concerns the applicability of R.C. 2151.414(E)(7)

through (11). As explained above, Mother had her parental rights involuntarily

terminated as to siblings of A.H, and thus R.C. 2151.414(E)(11) is applicable.

{¶36} Viewing the facts of this case in light of the factors set forth in R.C.

2151.414(D), we find that, while it is clear Mother loves her daughter, it is in A.H.’s

best interest that HCJFS be granted permanent custody. While A.H. was bonded

with Mother, the record shows that A.H. is also bonded with her siblings and her

foster family, who are able to meet all of her needs, including the medication regimen

for treating her illness.

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{¶37} Having thoroughly reviewed the record, we find that sufficient credible

evidence supports the juvenile court’s decision to terminate Mother’s and Father’s

parental rights and to grant permanent custody of A.H. to HCJFS. Mother’s sole

assignment of error and Father’s second assignment of error are overruled.

{¶38} Lastly, in his first assignment of error, Father argues that the juvenile

court abused its discretion and erred in denying his request for a continuance at the

trial on the termination of his parental rights. We find this assignment to be without

merit. There is no request for a continuance in the record. At the second hearing in

September 2019, Father’s attorney simply explained to the court that Father had

transportation issues and could not attend the hearing. He did not move for a

continuance of the hearing. Father was able to testify at the next hearing in

November 2019, and his attorney represented his interests throughout the trial. See

In re Joseph P., 6th Dist. Lucas No. L-02-1385, 2003-Ohio-2217 (a parent’s due-

process rights are not violated when the parent is represented at the hearing by

counsel, a full record of the hearing is made, and any testimony that the parent

wishes to present was presented); Compare In re M/W, 1st Dist. Hamilton No. C-

180623, 2019-Ohio-948 (mother’s due-process rights were violated when her

counsel requested a continuance, which was denied, and mother was unable to

present her testimony). Therefore, Father’s first assignment of error is overruled.

Conclusion

{¶39} In conclusion, we affirm the judgment of the juvenile court.

Judgment affirmed.

M OCK , P.J., and M YERS , J., concur.

Please note:

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The court has recorded its own entry on the date of the release of this opinion.

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