In re S.D.

[Cite as In re S.D., 2020-Ohio-3379.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: S.D., R.D., J.D., and M.D. : APPEAL NO. C-200045
C-200084
TRIAL NO. F16-2016X

:
O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 18, 2020

Jon R. Sinclair, for Appellant Mother,

Anzelmo Law and James A. Anzelmo, for Appellant Father,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Allison McWhorter,
Assistant Public Defender, Guardian ad Litem for Appellee minor children.
 OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} In this parental-termination case, the juvenile court overruled the

magistrate’s decision and granted permanent custody of the minor children to the

Hamilton County Department of Job and Family Services (“HCJFS”). The parents

have appealed. Mother argues in one assignment of error that the juvenile court

erred in granting HCJFS’s motion for permanent custody. Father argues in one

assignment of error that HCJFS failed to establish, by clear-and-convincing

evidence, that it should be granted permanent custody of the children.

{¶2} We consider mother’s and father’s assignments of error together. Both

assignments of error are sustained. The judgment of the juvenile court is reversed,

and the cause is remanded with instructions to the juvenile court to issue a judgment

entry adopting the magistrate’s decision awarding legal custody of the children to the

parents with protective supervision of M.D. by HCJFS.

Factual Background

{¶3} On September 13, 2016, nine-year-old S.D. and two-year-old R.D. were

found home alone without adult supervision. A school official had gone to the house

because S.D. had missed ten days of school so far that school year. When the parents

had not returned by 4 p.m. that day, the official called police. It was later discovered

that at the time S.D. was experiencing seizures on a weekly basis. HCJFS was

granted interim custody of S.D. and R.D. on September 14, 2016. On November 16,

2016, the magistrate adjudicated S.D. to be abused, neglected, and dependent, and

R.D. to be neglected and dependent.

2
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} The parents were ordered by the magistrate to comply with the

following dispositional orders: (1) provide access to HCJFS and the guardian ad

litem (“GAL”) and sign release-of-information forms; (2) complete mental-health

and chemical-dependency assessments and follow all recommendations; (3)

complete random toxicology screens; (4) obtain and maintain income and stable

housing; (5) complete parenting classes; (6) establish father’s paternity; and (7)

complete AMEND assessment/domestic-violence-awareness classes and follow the

recommendations.

{¶5} While the case involving S.D. and R.D. was pending, mother gave birth

to the two youngest children, J.D. (January 11, 2017) and M.D. (November 28, 2017).

Both children were placed in the interim custody of HCJFS—J.D. on January 23,

2017, and M.D. on December 1, 2017.

{¶6} On June 14, 2018, HCJFS filed a motion for permanent custody, which

was denied by the magistrate on April 12, 2019. The magistrate ordered that the

children be returned to the custody of their parents, with protective supervision by

HCJFS of M.D. As part of the order for protective supervision, the magistrate

ordered that the parents provide access to HCJFS and the GAL, complete home-

based therapeutic services, complete random toxicology screens, and maintain stable

income and housing.

{¶7} HCJFS and the GAL filed objections and motions to present newly

discovered evidence. The juvenile court held a brief hearing on August 22, 2019, but

decided to consider the parties’ arguments via written submissions instead of

conducting an objection hearing. The court granted the motions to present newly

discovered evidence in part, and accepted evidence that mother had been charged

3
 OHIO FIRST DISTRICT COURT OF APPEALS

with theft on May 23, 2019. The court sustained the objections, set aside the

magistrate’s decision, and granted permanent custody to HCJFS on January 28,

2020.

{¶8} The four minor children in this case all have the same mother. Father

is the confirmed father of the three youngest children, and the alleged father of S.D.

Mother, father, and S.D. are from Guatemala, but came to the United States

approximately four years prior to the permanent-custody trial. Father speaks some

English, but the parents primarily speak Spanish and Mam. Interpreters were

provided to facilitate communication between HCJFS and the parents and during all

court proceedings, visitations, home visits, and services.

{¶9} There have been three HCJFS caseworkers over the course of the case.

Jennifer Adams was the caseworker from October 2016 to November 2017.

Samantha Benny was the caseworker from January 2018 to June 2018. Caitlin

Francesconi was the caseworker at the time of trial after taking over in July 2018.

Julie Pederson is the GAL for all four children.

{¶10} Over four days of trial, the caseworkers and GAL testified generally

that throughout the case the parents failed to communicate consistently with HCJFS

and did not seem to understand why the children were removed from the home,

what was going on with their case, or what HCJFS’s concerns were for the children.

The Permanent-Custody Determination

{¶11} Parents’ interest in the care, custody, and control of their children “is

perhaps the oldest of the fundamental liberty interests recognized by [the United

States Supreme Court].” In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d

829, ¶ 8, quoting Troxel v. Granville 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49

4
 OHIO FIRST DISTRICT COURT OF APPEALS

(2000). “Permanent termination of parental rights has been described as the family

law equivalent of the death penalty in a criminal case.” In re D.A. at ¶ 10. The

termination of parental rights should be an alternative of “last resort,” and is only

justified when it is necessary for the “welfare” of the child. In re Cunningham, 59

Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979).

{¶12} “Reviewing a juvenile court’s grant of permanent custody requires that

we independently find that clear and convincing evidence supports the decision.” In

re L.M.B. & M.A.B., 1st Dist. Hamilton Nos. C -200033 and C-200044, 2020-Ohio-

2925, ¶ 8. Clear-and-convincing evidence produces “in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” In re K.H., 119

Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford,

161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In

reviewing a challenge to the sufficiency of the evidence, we must examine the record

and determine whether the evidence on each element satisfies the clear-and-

convincing standard. In re L.M.B. & M.A.B. at ¶ 8. For manifest-weight challenges,

we 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.” In re A.B., 1st Dist. Hamilton Nos. C-150307

and C-150310, 2015-Ohio-3247, ¶ 16.

{¶13} When children have been previously adjudicated abused, neglected, or

dependent and temporary custody has been granted to HCJFS pursuant to R.C.

2151.353(A)(2), HCJFS may then move for permanent custody of the children

pursuant to R.C. 2151.413(A) and 2151.414. The court will grant permanent custody

5
 OHIO FIRST DISTRICT COURT OF APPEALS

to HCJFS if a two-prong test is satisfied. The court must find, by clear and

convincing evidence, that: (1) one of the enumerated factors in R.C.

2151.414(B)(1)(a)-(e) applies, and (2) permanent custody is in the best interest of the

children under R.C. 2151.414(D)(1)(a)-(e). See R.C. 2151.414(B)(1).

The First Prong—R.C. 2151.414(B)

{¶14} The first prong can be satisfied by any one of five conditions, including

if the court finds that the children cannot be placed with either of the children’s

parents within a reasonable time or should not be placed with the children's parents,

or if the children have been in the custody of a children’s services agency for at least

12 months of a consecutive 22-month period prior to the filing of the motion for

permanent custody (“12-in-22” provision). R.C. 2151.414(B)(2) and

2151.414(B)(1)(d).

{¶15} The starting point for the 12-in-22 clock is either the date the child was

adjudicated dependent or 60 days after the removal of the child from the home,

whichever is earlier. R.C. 2151.414(B)(1)(e). The end-point for the 12-in-22 clock is

the date the agency filed the motion for permanent custody. In re C.W., 104 Ohio

St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 26.

{¶16} S.D. and R.D. are considered to have been in the temporary custody of

HCJFS since November 13, 2016, 60 days after they were removed from the home.

J.D. is considered to have been in the temporary custody of HCJFS since March 22,

2017. M.D. is considered to have been in the temporary custody of HCJFS since

January 30, 2018. Therefore, M.D. was only in the custody of HCJFS for

approximately four months when it filed its motion for permanent custody on June

14, 2018. The 12-in-22 condition is satisfied as to S.D., R.D., and J.D., but not M.D.

6
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} The juvenile court also found that all of the children could not be

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

with the parents. See R.C. 2151.414(B)(1)(a). When determining whether a child

cannot be placed with either parent within a reasonable period of time or should not

be placed with either parent, the court shall consider all relevant evidence. R.C.

2151.414(E). If the court determines, by clear-and-convincing evidence that one or

more of the factors in R.C. 2151.414(E)(1)-(15) exist as to each of the child's parents,

the court must find that the child cannot be placed with either parent within a

reasonable time or should not be placed with either parent. Id.

{¶18} Before we begin our analysis, we note our concern that the juvenile

court overruled several of the magistrate’s factual findings that were based on

witness credibility determinations—without hearing any additional evidence. Where

a party files objections to a magistrate’s decision, the juvenile court is authorized to

conduct a de novo review of a magistrate’s legal and factual findings. Juv.R.

40(D)(4)(d). But, where the magistrate makes a factual finding based upon the

credibility of the witnesses, the juvenile court must be mindful when conducting a de

novo review of such a factual finding without entertaining new evidence that the

magistrate, as the trier of fact, “is in the best position to judge the credibility of the

witnesses and the weight to be given to the evidence presented.” State v. Carson, 1st

Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16; see In re X.B., 10th Dist.

Franklin Nos. 16AP–243 and 16AP–277, 2016-Ohio-5805, ¶ 13 (“the magistrate, as

the true trier of fact, was in the better position to judge the credibility of the

witnesses”). The juvenile court judge did not have the advantage of being present in

the courtroom as the witnesses testified and observing the witnesses’ demeanor.

7
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} The juvenile court found that the conditions in R.C. 2151.414(E)(1),

(2), (3), (4), (8), (14), and (15) were satisfied, and held that the children could not be

returned to the parents within a reasonable time.

{¶20} R.C. 2151.414(E)(1) requires the court to consider whether:

the parent has failed continuously and repeatedly to substantially remedy

the conditions causing the child to be placed outside the child’s home. In

determining whether the parents have substantially remedied those

conditions, the court shall consider parental utilization of medical,

psychiatric, psychological, and other social and rehabilitative services and

material resources that were made available to the parents for the

purpose of changing parental conduct to allow them to resume and

maintain parental duties.

{¶21} The children were removed from the home due to concerns over

domestic violence, supervision and parenting, and medical and education neglect.

The magistrate found that the parents had completed all case-plan services and that

the children could be placed with the parents within a reasonable time. The juvenile

court acknowledged that the parents had complied with the case plan, but held that

they had “failed to demonstrate behavior change sufficient to remedy the issues” that

caused the children to be removed from the home. It cited concerns about domestic

violence, the parents’ inability to supervise all four children for extended periods of

time, lack of interaction between the parents and S.D. during visitations, and

mother’s mental health.

{¶22} The allegations of domestic violence originated in the case plan filed by

HCJFS on November 2, 2016. In the case plan, HCJFS caseworker Jennifer Adams

8
 OHIO FIRST DISTRICT COURT OF APPEALS

noted, “There is no SACWIS [Statewide Automated Child Welfare Information

System] or Clerk of Court’s [sic] history that would indicate that [father] has ever

abused any children before.” But, Adams wrote that S.D. told her that she had seen

father punch mother in the chest and hit mother on the side of the head. S.D. also

said that father would hit her with a phone charger if she did not complete her chores

quickly enough. Adams also noted that “there are marks that have been seen on

R.D.’s legs that the agency and the check clinic may believe to have been caused by

[R.D.] being hit by a switch or tied up.”

{¶23} On November 16, 2016, the magistrate adjudicated S.D. to be abused

based upon the “clear and convincing evidence presented and the stipulations

entered.” In the adjudication of J.D. on April 19, 2017, the parties stipulated to the

complaint for interim custody as written. The complaint stated that S.D. and R.D.

were removed from the home and adjudicated dependent due to concerns of S.D.

being left home alone with R.D., medical neglect of S.D., and domestic violence by

father in the presence of the children. In the adjudication of M.D. on March 1, 2018,

the magistrate found by clear-and-convincing evidence that S.D. and R.D. were

adjudicated abused, neglected, and/or dependent due to educational neglect,

medical neglect, and domestic violence in the presence of the children.1

{¶24} In its decision denying the motion for permanent custody, the

magistrate found that HCJFS had failed to prove that the parents had ever engaged

in altercations or that domestic violence was an ongoing concern in the case. The

juvenile court acknowledged that there was little evidence in the record of domestic

violence. However, it set aside the magistrate’s finding and found that not only had

1 It is important to note that R.D. was never adjudicated abused.

9
 OHIO FIRST DISTRICT COURT OF APPEALS

domestic violence been established, but that the parents had failed to demonstrate

behavioral change regarding domestic violence.

{¶25} Throughout the case, the parents have steadfastly denied that any

domestic violence occurred. Nevertheless, they completed domestic-violence-

prevention services as required by the case plan. It took three referrals because

father was disenrolled twice due to nonattendance, but he completed the Transform

program, which consisted of 28 classes designed to prevent domestic violence.

Mother also completed domestic-violence-prevention services, in the form of the

Women Helping Women classes.

{¶26} The HCJFS caseworkers and the GAL all testified that parents either

could not articulate what they learned from domestic-violence-prevention services,

or gave contradictory answers. Pederson testified that mother appeared visibly

intimated by father. She testified that when asked questions, mother looked fearful,

looked towards father for direction, and would not answer until father nodded or

answered for her. Pederson testified that when she spoke with mother alone, she

answered quickly and without hesitation. However, Pederson admitted that she

never asked mother about domestic violence outside the presence of father. It is also

important to remember that mother speaks no English, while father speaks some

English. Therefore, even if they were communicating through an interpreter, it is

understandable that mother might look to father before answering questions posed

by the GAL or caseworkers.

{¶27} Although father initially testified that he had no idea why he was

required to take domestic-violence classes, and that he only learned about five

percent from the classes, he later testified that the classes were “good,” and that he

10
 OHIO FIRST DISTRICT COURT OF APPEALS

learned to listen to people and to control his anger and emotions. He testified that

he learned that if he became angry to take a ten minute break and go outside and let

things “air out.” Also, when father completed the Transform program, he received a

completion summary that detailed his participation in the program. According to

the completion summary, father performed “fair” to “good” in all areas of the course,

his efforts were “adequate,” and he “seem[ed] to be at low risk level to re-offend.”

Mother testified that she learned that if she gets into a fight with father she can go

outside or into another room. During the pendency of the case there were no

allegations or physical signs of domestic violence.

{¶28} Considering the parents’ compliance with their case plan, their

testimony at trial that they had learned from services, the fact that there were no

allegations or signs of domestic abuse during the pendency of the case, and the

meager evidence from which the concerns of domestic violence arose in the first

place, the juvenile court’s finding regarding domestic violence was not supported by

clear-and-convincing evidence.

{¶29} Second, we address the issue of the parents’ ability to supervise the

children. The magistrate found that the parents can provide proper supervision. She

cited to the parents’ completion of all case-plan services and the notes from the

parents’ Family Nurturing Center (“FNC”) visitations, which contradicted the

testimony of the GAL and HCJFS caseworkers that the parents’ parenting and

supervision skills at visitations had not substantially improved. She also noted that

during the pendency of the case there were no reports of the parents having

problems supervising the children.

11
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶30} The juvenile court disagreed and held that the parents had not

substantially improved their ability to supervise the children. It relied on the

testimony of the caseworkers and Pederson, all of whom observed only a few

visitations each, and only stayed for a portion of the visitations they did observe.

{¶31} As part of the magistrate’s dispositional orders, the parents were

required to complete parenting classes. Father completed all of the parenting

classes. Mother missed one class, but the caseworkers agreed that she demonstrated

an eagerness to improve her parenting throughout the case.

{¶32} The parents were also ordered to attend visitations with the children at

FNC. During each visitation, an FNC facilitator filled out a “Visitation Observation

and Planning Form” that included notes taken by the facilitator during the visit.

Visitation forms from July 2018 to November 2018 were admitted as exhibits at trial.

Also admitted was an FNC quarterly report covering the period of July 2018 to

September 2018.

{¶33} The quarterly report summarized the parents’ goals for visitations and

indicated whether the parents were progressing on those goals. Overall, the parents

were showing sufficient to very good progress on the majority of their goals. The

quarterly report also summarized significant progress or concerns from the reporting

period. It indicated that the parents achieved two of their goals during the reporting

period—to speak to each child for five minutes and to teach the children something

new during each visit. The report also listed two concerns—the parents consistently

arriving late for visits and their inconsistency in providing redirections to the

children.

12
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶34} Caseworker Samantha Benny testified that the visitations stayed at the

strictest level of facilitation throughout the case, and there was never a

recommendation to decrease the level of facilitation. At trial, mother denied ever

leaving S.D. home alone to watch R.D., despite clear evidence to the contrary, and

both parents gave inconsistent testimony as to why the children were removed from

the home initially and whether they understood HCJFS’s concerns. However, Adams

testified that mother understood that leaving S.D. home alone was a mistake. Father

also testified that leaving S.D. home alone was a mistake.

{¶35} In her answers on the FAIR assessment, mother explained that her

decision to leave S.D. home alone to care for R.D. was based upon cultural norms in

Guatemala. She told the assessor that growing up in Guatemala she helped care for

her younger siblings, including duties usually reserved for adults in the United

States. She expressed frustration that some things that are acceptable in Guatemala

are not acceptable in the United States.

{¶36} Moreover, the parents completed the parenting classes, were clearly

making progress on their parenting goals, and testified that they would not leave S.D.

home alone in the future to care for a younger sibling. The juvenile court’s finding

regarding the parents’ ability to supervise and parent the children was not supported

by clear-and-convincing evidence.

{¶37} Third, we address the issue of the lack of interaction between the

parents and S.D. during visitations. The juvenile court found that parents had failed

to substantially remedy the concerns of neglect because they failed to adequately

interact with S.D. during visitations. As an initial matter, we note that the juvenile

court’s finding that the parents failed to interact with S.D. during visitations is belied

13
 OHIO FIRST DISTRICT COURT OF APPEALS

by the FNC visitation notes and the FNC quarterly report. Nevertheless, we need not

consider whether the court’s finding is supported by clear-and-convincing evidence

because a lack of interaction between parents and a child during visitations does not

fall within the definition of neglect provided by R.C. 2151.03(A).

{¶38} As relevant, R.C. 2151.03(A) defines a neglected child as any child who

“lacks adequate parental care because of the faults or habits of the child’s parents,

guardian, or custodian,” or whose “parents, guardian, or custodian neglects the child

or refuses to provide proper or necessary subsistence, education, medical or surgical

care or treatment, or other care necessary for the child’s health, morals, or well

being.”

{¶39} R.C. 2151.011(B)(1) defines “adequate parental care” as the “provision

by a child’s parent or parents, guardian, or custodian of adequate food, clothing, and

shelter to ensure the child’s health and physical safety and the provision by a child’s

parent or parents of specialized services warranted by the child’s physical or mental

needs.” In re T.B., 12th Dist. Fayette No. CA2014–09–019, 2015-Ohio-2580, ¶ 14. A

lack of interaction during visitations does not fall within those definitions.

{¶40} Lastly, the juvenile court cited to mother’s failure to change her

behavior regarding her mental health. However, the children were not removed

from the home because of concerns regarding mother’s mental health. Therefore,

her mental health should not be considered under R.C. 2151.414(E)(1), and is instead

properly considered under (E)(2).

{¶41} In summary, a lack of interaction between the parents and S.D. during

visitations, even if true, does not fall within the statutory definition of neglect.

HCJFS failed to present clear-and-convincing evidence that the parents “failed

14
 OHIO FIRST DISTRICT COURT OF APPEALS

continuously and repeatedly to substantially remedy the conditions” that caused the

children to be removed from the home. See R.C. 2151.414(E)(1). The juvenile court

erred in finding the R.C. 2151.414(E)(1) condition satisfied.

{¶42} Under R.C. 2151.414(E)(2), the court considers whether a parent

suffers from chronic mental illness, chronic emotional illness, intellectual disability,

physical disability, or chemical dependency that is so severe that the parent will be

unable to provide an adequate permanent home for the child at the present time or

within one year.

{¶43} The juvenile court found the condition in R.C. 2151.414(E)(2) satisfied

because of mother’s mental-health concerns and a possible intellectual disability.

The court noted that mother only has a third grade education, and that her

inconsistent statements and confusion around the expectations of parental care

could be a result of low cognitive functioning. However, to the extent the court found

that mother has an intellectual disability, there was not clear-and-convincing

evidence presented to support such a finding. Testimony that mother was

sometimes confused and made inconsistent statements falls far short of clear-and-

convincing evidence that she has an intellectual disability. Mother’s confusion and

inconsistent statements may just as easily be attributed to a lack of understanding of

United States cultural norms compared to Guatemala, the language barrier, or fear of

government officials.

{¶44} Mother attempted suicide in February 2017, shortly after J.D. was

removed from her care. Afterwards, she completed three sessions of individual

therapy and was discharged. The caseworkers and Pederson testified that mother

could not articulate to them what she had learned from counseling, and only told

15
 OHIO FIRST DISTRICT COURT OF APPEALS

them that she no longer needed to go. Adams testified that mother told her that she

attempted suicide because she was really sad about the children being removed, but

that she would not attempt suicide again.

{¶45} Mother testified that during therapy she addressed her attempt to

commit suicide, and that she and her counselor talked about her mental well-being.

She testified that she felt depressed at the time of her attempt, but no longer felt

depressed after therapy. Mother admitted into evidence a letter from her therapist

that stated that she had completed all scheduled appointments, and that she was

“working hard to make positive changes in her life, and did not report any symptoms

or behaviors that would indicate ongoing depression.” The only evidence presented

by HCJFS to the contrary was from Pederson, who testified that even after therapy,

mother still “looks sad.”

{¶46} Mother’s mental health was undoubtedly a serious concern at one

point in the case. Nevertheless, mother and her counselor both indicated that

mother’s mental health was no longer a serious concern, and HCJFS presented no

evidence that since her suicide attempt, mother’s mental illness has prevented her

from functioning in everyday life, affected her interactions with the children, or has

been an ongoing issue throughout the case. Therefore, the juvenile court’s finding

that mother’s mental illness was so severe as to prevent her from providing an

adequate permanent home was not supported by clear-and-convincing evidence.

{¶47} Under R.C. 2151.414(E)(3), the juvenile court considered whether

either parent had committed any abuse against a child, or caused or allowed a child

to suffer neglect as defined in R.C. 2151.03, between the date that the original

16
 OHIO FIRST DISTRICT COURT OF APPEALS

complaint alleging abuse or neglect was filed and the date of the filing of the motion

for permanent custody.

{¶48} R.C. 2151.414(E)(3) explicitly confines our analysis to the time period

between the filing of the original complaint on September 13, 2016, and June 14,

2018, the date the motion for permanent custody was filed. There was no evidence of

abuse presented after the original complaint alleging abuse and neglect of S.D. and

R.D. was filed. The juvenile court found the condition in R.C. 21515.414(E)(3)

satisfied because of the parents’ neglect of S.D. during visitations. As discussed

above, a lack of interaction with S.D. during visitations does not fall within the

definition of neglect as defined in R.C. 2151.03(A) and is contradicted by the FNC

records. Therefore, the juvenile court’s finding regarding R.C. 2151.414(E)(3) was

not supported by clear-and-convincing evidence.

{¶49} Under R.C. 2151.414(E)(4), the juvenile court considered whether the

parents “demonstrated a lack of commitment toward the child[ren] by failing to

regularly support, visit, or communicate with the child[ren] when able to do so, or by

other actions showing an unwillingness to provide an adequate permanent home for

the child[ren].” (Emphasis added.)

{¶50} The magistrate found that, although the parents had missed

visitations, they had never been discharged from visiting, and that missing visitations

for excusable reasons, such as work or transportation issues, did not justify

terminating their parental rights. The juvenile court overruled the magistrate and

found that the condition in R.C. 2151.414(E)(4) was satisfied due to the parents’

inconsistency in attending visitations.

17
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶51} The parents had visitations with the children twice a week, with each

visitation lasting two hours. The parents’ inconsistency in attending visitations was a

concern since the early days of the case, especially regarding father. Adams testified

that when she was supervising visitations in the earliest days of the case, father

attended about 75 percent of the visitations, and if he did not attend he would call

ahead of time. She also testified that mother was more consistent than father in

attending visitations.

{¶52} However, during the five months leading up to trial, July 1, 2018, to

November 3, 2018, mother missed six and father missed 13 out of a total of 30

scheduled visitations (after subtracting visits canceled by FNC or the foster parents).

Additionally, the parents were over 15 minutes late for at least eight of the visitations

they attended during that time period. Due to frequent missed visitations, the

parents were required to call FNC the day before a visitation and confirm they would

be there; otherwise the visitation would be canceled.

{¶53} The recurring excuses given by the parents were car trouble and work

conflicts. Caseworker Caitlin Francesconi testified that she attempted to provide the

parents with bus passes, and asked father for a work schedule so she could adjust

visitations accordingly, but the parents declined the bus tokens and father never

provided a work schedule. Francesconi testified that father’s work schedule is

sporadic; his employer calls him in the morning if they need him that day, and he

only ends up working two to three days a week. Also, as the trial progressed, the

parents continued to miss visitations. Pederson testified that the parents missed two

visitations in December 2018, right in the middle of trial. Francesconi testified that

in January 2019, the parents had one of their weekly visitations canceled due to three

18
 OHIO FIRST DISTRICT COURT OF APPEALS

consecutive no-shows. However, mother testified that she missed one of those

visitations because she was recovering from surgery, and the other two because of car

trouble.

{¶54} On November 30, 2018, father testified that he had missed two

visitations over the last two months, but admitted that it could have been more.

According to the FNC visitation notes, he had actually missed five during that time

period. He testified that at the time of trial he was only working one to three days

per week. He admitted that HCJFS asked for verification of his employment, but he

never provided it because his job would not give him any documents to verify his

employment.

{¶55} There is no set number of parental visits that proves that a parent is

committed to their child. In re Willis, 3d Dist. Allen No. 1–02–17, 2002-Ohio-4942,

¶ 31. Rather, the “focus [must be] on the particular facts of [the] case and the

language of the statute directing the court to determine whether a parent has

supported, visited, or communicate [sic] with their child when able to do so.”

(Emphasis in original.) Id.

{¶56} The credibility of the witnesses is highly relevant to this factor. The

magistrate clearly believed father and mother when they testified that they missed

visitations because of work and transportation issues. The juvenile court had no

basis for overruling the magistrate on those factual findings because the court did

not hear any additional testimony. As the magistrate correctly pointed out, missing

visitations for valid reasons should not be held against the parents. The juvenile

court’s finding regarding R.C. 2151.414(E)(4) was not supported by clear-and-

convincing evidence.

19
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶57} Under R.C. 2151.414(E)(8), the juvenile court considered whether the

parents repeatedly withheld medical treatment or food from the children when they

had the means to provide the treatment or food. The court held that the parents had

withheld medical treatment for S.D.’s seizures.

{¶58} It is undisputed that while in the parents’ care S.D. was having

approximately one seizure a week, and that since being placed in foster care and

receiving medical treatment, she had only one seizure, and that was over two years

before trial.

{¶59} Pederson testified that although the parents said that they took S.D. to

the hospital, they have no understanding of what further treatment is needed or what

S.D.’s medical needs are. Mother testified that they took S.D. to Children’s Hospital

many times, but that the hospital sent them away without seeing S.D. Adams

testified that father told her the same thing early in the case, that they had taken S.D.

to the hospital, but that the hospital did not treat her. Both mother and father

testified that if S.D. was returned to their care, they would seek medical care for

S.D.’s condition.

{¶60} The condition in R.C. 2151.414(E)(8) is not satisfied by the mere

existence of a child’s medical conditions where there was no evidence in the record

that the parents actually withheld medical treatment. In re B.H., 12th Dist. Fayette

No. CA2008-06-019, 2009-Ohio-286, ¶ 29.

{¶61} HCJFS established that the parents knew that S.D. had a medical

condition, but it failed to establish that they withheld medical treatment. In fact, the

parents’ testimony pointed to the opposite—that they sought treatment numerous

20
 OHIO FIRST DISTRICT COURT OF APPEALS

times but were turned away. The juvenile court’s finding was not supported by clear-

and-convincing evidence.

{¶62} Under R.C. 2151.414(E)(14), the juvenile court considered whether the

parents were unwilling to provide food, clothing, shelter, and other basic necessities

for the children or to prevent the children from suffering physical, emotional, or

sexual abuse or physical, emotional, or mental neglect.

{¶63} The juvenile court found that the condition in R.C. 2151.414(E)(14) was

satisfied because the parents did not consistently attend S.D.’s school or medical

appointments, and, although the parents have adequate income, they did not provide

money, food, or clothing to the children while in foster care.

{¶64} This court has previously questioned the applicability of R.C.

2151.414(E)(14) once a child is placed in the custody of HCJFS. See In re P., 1st Dist.

Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 31 (“It follows that the

R.C. 2151.414(E)(14) condition does not apply once the child is taken into the custody

of HCJFS, since at that point the child’s basic necessities are being provided for by

HCJFS.”). However, in In re P., there was an issue as to whether the parent had the

ability to provide food and other necessities, which is not at issue in the present case.

{¶65} Adams testified that the parents were invited to a meeting at the

hospital regarding S.D. Mother attempted to attend the meeting, but went to the

wrong hospital. This appears to have been an honest mistake, and should not have

been held against the parents. Pederson testified that the parents were invited to

“several” school meetings regarding S.D.’s individualized education plan (“IEP”), but

only attended one. Adams’s and Pederson’s testimony failed to establish that the

parents were unwilling to provide basic necessities for the children.

21
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶66} This case is dissimilar to other cases in which the R.C. 2151.414(E)(14)

condition was found to be satisfied. See, e.g., In re Dylan R., 6th Dist. Lucas No. L-

021267, 2003-Ohio-69, ¶ 11 (the parents used what little money they had to purchase

a video-game console instead of paying rent); In re Briazanna G., 6th Dist. Lucas

No. L-04-1366, 2005-Ohio-3206, ¶ 5 (the parents sold WIC supplies for money to

buy drugs, depriving their child of basic necessities such as food). Although the

parents may not have provided money or clothing for the children while they were in

foster care, they routinely brought food to visitations. There is no indication that the

children were in need of any clothes or money while in foster care, or that their basic

needs were not being met. The juvenile court’s finding was not supported by clear-

and-convincing evidence.

{¶67} Under R.C. 2151.414(E)(15), the juvenile court considered whether the

parents

committed abuse as described in section 2151.031 of the Revised

Code against a child or caused or allowed the child to suffer neglect as

described in section 2151.03 of the Revised Code, and the court

determines that the seriousness, nature, or likelihood of recurrence of the

abuse or neglect makes the child’s placement with the child’s parent a

threat to the child’s safety.

{¶68} The juvenile court found that the likelihood of recurrence of abuse or

neglect made placement with the parents a threat to the children’s safety. As

discussed above, not only was the evidence of domestic abuse weak, HCJFS failed to

prove that domestic abuse was an ongoing concern or that it was likely to recur.

22
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶69} Regarding neglect, the caseworkers and GAL testified that they were

concerned that if the children were returned to the parents, they would rely on S.D.

to care for the other children. Mother testified that she never left S.D. alone to watch

R.D. despite clear evidence to the contrary. Father initially testified that he had no

idea why the children were removed, only to later testify that the children were

removed because he and mother had made a mistake and left S.D. home alone.

{¶70} However, mother testified that if the children were returned to her and

father, she would not use S.D. to supervise the other children. She testified that she

would stay home to care for the children, and that she has family to help her—her

father, siblings, uncles, and cousins. Both parents insisted that they would take S.D.

to her medical appointments and ensure that she received treatment.

{¶71} Regarding S.D.’s education, the parents denied not sending S.D. to

school despite the fact that she had missed ten of 19 school days by September 14,

2016. Mother testified that she did not understand what an IEP was or what services

S.D. was receiving as a result. Nevertheless, while failure to send a child to school

may very well threaten the child’s growth and well-being, it does not present a

“threat to the child’s safety.” See R.C. 2151.414(E)(15). Furthermore, both parents

testified that education was important and that they would ensure that S.D. went to

school, and Francesconi admitted at trial that both parents responded

“appropriately” when asked about the children’s schooling.

{¶72} The parents’ testimony was somewhat inconsistent, but there was little

evidence presented to support the court’s finding that neglect was likely to recur, or

that it would threaten the children’s safety. “A decision based on clear and

convincing evidence requires overwhelming facts, not the mere calculation of future

23
 OHIO FIRST DISTRICT COURT OF APPEALS

probabilities.” In re Williams, 11th Dist. Geauga Nos. 2003-G-2498 and 2003-G-

2499, 2003-Ohio-3550, ¶ 45. The court’s finding that the R.C. 2151.414(E)(15)

condition was satisfied was not based upon clear-and-convincing evidence.

{¶73} With none of the conditions in R.C. 2151.414(E) satisfied, the court

erred in holding that the children could not be placed with the parents within a

reasonable time and should not be placed with the parents. The 12-in-22 condition

was satisfied as to S.D., R.D., and J.D., but not M.D. Thus, we do not reach the best-

interest prong of the permanent-custody test regarding M.D., but we must continue

our analysis for S.D., R.D., and J.D.

The Second Prong—R.C. 2151.414(d)(1) best-interest analysis

{¶74} Under the second prong, the juvenile court must determine whether

granting permanent custody to HCJFS is in the best interest of the children. R.C.

2151.414(B)(1). Pursuant to R.C. 2151.414(D)(1), the court may find that permanent

custody is in the best interest of the children upon consideration of all relevant

factors, including:

(a) the children’s relationships with the parents, siblings, foster caregivers, and

any other person who may significantly affect the children,

(b) the wishes of the children, with consideration granted for their maturity,

(c) the custodial history of the children, including whether the children have

been in the custody of a public child services agency for 12 or more months in a

consecutive 22 month period,

(d) the children’s need for a legally secure permanent placement and whether

that type of placement can be achieved without a grant of permanent custody to

HCJFS, and

24
 OHIO FIRST DISTRICT COURT OF APPEALS

(e) whether any of the factors in divisions (E)(7) to (11) apply in relation to the

parents and children.

{¶75} No single factor is given greater weight or heightened significance. In

re P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 35.

{¶76} The magistrate held that the R.C. 2151.414(D)(1)(a) factor favored

returning the children to the parents due to the positive nature of the children’s

interactions with the parents during visitations. The juvenile court found that the

children were bonded with each other, with the foster family, and with their parents.

But, it disagreed with the magistrate, and held that the R.C. 2151.414(D)(1)(a) factor

favored granting permanent custody to HCJFS.

{¶77} The HCJFS caseworkers and Pederson testified that all of the children

are doing well in the foster home and are bonded to the foster family. S.D.’s

therapist Morgan Roberts testified that S.D. described her foster family as her family.

Pederson testified that when S.D. was removed from the home, she was behind

developmentally and academically and had trouble communicating her wants and

needs. She testified that since being placed with the foster family, S.D. has become

more outgoing and energetic, is engaged in many activities, and is bonded with the

foster family. The foster mother testified that S.D. would appear sad and irritable

before and after visits with parents. She also testified that R.D. has become much

more talkative and playful than when he first came into the foster home.

{¶78} It is important to note that father speaks some English, but mother

does not speak any English. The children are in an English-speaking foster home,

and although the parents have taught R.D. and J.D. some Spanish, they do not have

the ability to communicate effectively with the parents in Spanish. The longer S.D.

25
 OHIO FIRST DISTRICT COURT OF APPEALS

has been in the foster home, the less she has wanted to speak Spanish with her

parents, and her ability to speak and understand Spanish has degraded. Interpreters

were present at all visitations in order to facilitate communication between the

parents and the children. In spite of the language barrier, the FNC visitation notes

describe many instances of loving interaction between the parents and the children.

{¶79} There is a strong bond between the parents and the children, and

there is a strong bond between the foster family and the children. With the evidence

cutting both ways, the R.C. 2151.414(D)(1)(a) factor does not weigh heavily in favor of

either side.

{¶80} Under R.C. 2151.414(D)(1)(b), the juvenile court found that S.D.

wished to remain with the foster family, and that the three younger children were too

young to express their wishes. Pederson and Roberts testified that S.D. wished to

stay with the foster family and be adopted by them. However, there is evidence in

the record that as of April 2017, S.D. wanted to live with her parents. The longer she

remained in the foster home, the more she wanted to permanently remain with the

foster family. We must also remember that S.D. was only 11 years old at the time of

trial. We agree with the magistrate and the juvenile court that the evidence showed

that the children are bonded and it is in their best interest to keep them together.

Therefore, to the extent that S.D.’s wish to remain with the foster family contradicts

what is in the best interest of the remaining children, the importance of keeping the

children together is paramount.

{¶81} As discussed above, the 12-in-22 condition is satisfied as to S.D., R.D.,

and J.D. Also, the children have been in their current foster home since March 2017.

26
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶82} Under R.C. 2151.414(D)(1)(d), the court considered whether a legally

secure permanent placement could be achieved without granting permanent custody

to HCJFS. 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 Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 42,

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

{¶83} The magistrate held that a legally secure permanent placement could

be achieved by returning the children to the parents. The magistrate found,

Parents [sic] situation appears to be different from 2016: parents have

complied with court orders, and mother does not work, so there will be

proper supervision, and father has completed extensive anger

management and domestic violence awareness, even though there was no

proof at Trial of any physical or verbal altercations between parents.

{¶84} The juvenile court disagreed. It found that the parents do not

understand the needs of the children, do not have the ability to supervise the

children appropriately, and never provided HCJFS with proof of stable income or

housing.

{¶85} The court’s concerns regarding stable housing stem from the parents’

failure to provide HCJFS with a copy of the lease agreement for the apartment they

live in, and a visit to the apartment by Pederson in May 2018, during which the

electricity was shut off and mother had to go around to the back of the building to

retrieve the keys in order to enter. Pederson testified that she did not inquire as to

why the keys were behind the building, and that father told her that the electricity

27
 OHIO FIRST DISTRICT COURT OF APPEALS

was shut off due to construction in the building. Regardless, Francesconi visited the

home three times in the three months leading up to trial and testified that the

housing was stable and appropriate. It is clear from her testimony that the parents’

housing, whatever its condition in May 2018, is now appropriate.

{¶86} The caseworkers testified that they repeatedly asked the parents for a

copy of the lease and verification of father’s income, but never received anything

despite father reassuring them multiple times that he would acquire the requested

documents. Pederson testified that father also refused to give her any information

about his income. Mother was charged with theft in May 2019, but there are no

details in the record concerning this charge, and mother indicated that the case has

been resolved. Francesconi testified that although she was never able to verify

father’s income, the parents never asked HCJFS for help financially, and she did not

have concerns about the parents’ ability to provide financially for the children.

{¶87} When asked about the lease, father testified that he and mother had

been living in their current apartment for over a year, and that he had not provided

HCJFS with a copy of the lease because he had not had a chance to pick it up from

the landlord. Regarding income, he testified that he had asked his employer for

documents verifying his employment, but the employer refused to provide them.

{¶88} Although the parents may have failed to adequately explain their

repeated failures to provide HCJFS with a copy of the lease agreement, failure to

provide a lease agreement cannot alone justify the court’s finding that the parents

lacked stable housing, especially not when father testified that they had been living in

the same apartment for over a year prior to trial, and Francesconi testified that the

parents’ housing at the time of trial was appropriate. Also, despite father’s erratic

28
 OHIO FIRST DISTRICT COURT OF APPEALS

work schedule, HCJFS has not shown that the parents cannot financially provide for

the children. A lack of financial support was not cited as one of the reasons the

children were initially removed from the home. The parents brought food to every

visitation, they have maintained stable housing, and they have acquired furniture

and clothing in preparation for the children’s return.

{¶89} The juvenile court’s findings that the parents do not have stable

housing or income are not supported by clear-and-convincing evidence. Also, as

discussed above under the sections concerning R.C. 2151.414(E)(1) and (15), there

was not clear-and-convincing evidence presented to support the court’s findings that

the parents do not understand the needs of the children and do not have the ability

to properly supervise them. Therefore, the juvenile court’s finding that the parents

cannot provide a legally secure permanent placement was not supported by clear-

and-convincing evidence.

{¶90} R.C. 2151.414(D)(1)(e) directs us to R.C. 2151.414(E)(7)-(11) to

determine if any of those conditions apply. In its best-interest analysis, the juvenile

court stated that none of the R.C. 2151.414(E)(7)-(11) factors apply, contrary to its

finding a few pages earlier that the condition in R.C. 2151.414(E)(8) was satisfied.

Regardless, as discussed above, there was not clear-and-convincing evidence

presented to support the court’s finding that the condition in R.C. 2151.414(E)(8) was

satisfied.

{¶91} The court’s holding that granting permanent custody to HCJFS was in

the best interest of the children was not supported by clear-and-convincing evidence.

29
 OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶92} This is an extremely difficult case. Termination of parental rights is an

alternative of last resort and is only justified when it is necessary for the welfare of

the children. The juvenile court’s decision to permanently terminate the parents’

parental rights boiled down to their failure to consistently acknowledge why the

children were taken away, failure to communicate effectively with HCJFS, failure to

articulate what they learned in their classes to the satisfaction of the court, and their

inconsistent attendance at visitations. Mother and father are not perfect parents.

But, it is clear from the record that although they made mistakes in raising their two

oldest children, they love and care for their children and strive to be better parents.

As explained above, after a thorough review of the record, we hold that HCJFS did

not present clear-and-convincing evidence in support of its motion for permanent

custody. We further hold that the juvenile court’s judgment was not supported by

sufficient evidence and was against the manifest weight of the evidence.

{¶93} Mother’s and father’s assignments of error are sustained. The

judgment of the juvenile court is reversed and the cause is remanded with

instructions to the juvenile court to issue a judgment entry adopting the magistrate’s

decision awarding legal custody of the children to their parents with protective

supervision of M.D. by HCJFS.

Judgment reversed and cause remanded.

ZAYAS, P.J., and BERGERON, J., concur.

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

30