In re J.E.

[Cite as In re J.E., 2023-Ohio-3827.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

IN RE: :

J.E., JR. : CASE NO. CA2023-08-013

: OPINION
10/23/2023
:

:

:

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. AND20220178

Jess C. Weade, Fayette County Prosecuting Attorney, and Rachel S. Martin, Assistant
Prosecuting Attorney, for appellee.

Steven H. Eckstein, for appellant.

K. Danielle Whitt, for mother.

Susan R. Wollscheid, guardian ad litem.

S. POWELL, P.J.

{¶ 1} Appellant ("Father") appeals the decision of the Fayette County Court of

Common Pleas, Juvenile Division, granting permanent custody of his son, J.E., Jr., to
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appellee, Fayette County Children Services ("FCCS").1 For the reasons outlined below, we

affirm the juvenile court's decision.

Facts and Procedural History

{¶ 2} On May 18, 2022, FCCS filed a complaint alleging the then six-year-old J.E.,

born August, 16, 2015, was an abused and dependent child. FCCS filed this complaint

after it received evidence that Father had beaten J.E. on the back with a belt. This evidence

included an audio recording of Father beating J.E. – a recording in which J.E. can be heard

screaming – and a photograph depicting the resulting welts on J.E.'s back.

{¶ 3} Upon receiving this evidence, FCCS contacted local police to conduct a

wellness check on J.E. During this wellness check, J.E. provided the responding officers

with the belt that Father had used to beat him. Father was subsequently arrested, charged,

and, due to Father having a prior child abuse conviction, convicted of fourth-degree felony

child endangerment for which he was sentenced to 12 months in the Fayette County Jail.2

{¶ 4} On August 10, 2022, the juvenile court adjudicated J.E. an abused child. The

juvenile court also issued a dispositional decision granting temporary custody of J.E. to

FCCS. The juvenile court's adjudicatory and dispositional decisions were based on Father's

stipulations that: (1) there was sufficient evidence for an abuse finding; and (2), despite

FCCS' reasonable efforts to eliminate J.E.'s removal, it was nevertheless in J.E.'s best

interest to grant temporary custody to FCCS.

{¶ 5} On January 9, 2023, FCCS moved for permanent custody of J.E. To support

1. J.E.'s mother is not a party to this appeal and, for purposes of this opinion, will not be discussed further
except to note that she had previously lost custody of J.E. in December of 2020. It was at this time that a
judicial decision from a different Ohio county placed J.E. in the custody and care of Father.

2. Father was initially charged with, and pled guilty to, both fourth-degree felony child endangerment and first-
degree misdemeanor domestic violence. However, at Father’s sentencing hearing, the trial court merged the
two offenses as allied offenses of similar import. The state then elected to proceed with sentencing Father on
the child endangerment charge.
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this motion, FCCS argued that it should be awarded permanent custody of J.E. "based on

the fact that the child has been abandoned, and that it is in the best interest of the minor

child that permanent custody be granted" to FCCS. The juvenile court held a hearing on

FCCS' permanent custody motion on March 31, 2023. Father, still incarcerated as a result

of his conviction for fourth-degree felony child endangerment, was transported from the

Fayette County Jail to attend this hearing.

{¶ 6} During the permanent custody hearing, the juvenile court heard testimony

from just two witnesses: the caseworker assigned to J.E.'s case and Father. The juvenile

court also received a report from J.E.'s guardian ad litem that included the following

recommendation:

I believe it to be in the best interest of [J.E.] to grant the motion
for Permanent Custody to Fayette County Children Services at
this time. Neither parent has shown a willingness or ability to
provide proper and adequate care for the minor child. It is
unlikely that either parent would be able to make sufficient
progress on the case plan in order to correct the issues that
cause[d] the initial removal in a timely manner. It is the opinion
of this GAL that this child cannot be safely placed back with
either parent within a reasonable time and that these parents
have essentially abandoned this child. [J.E.] is in need of a
legally secure placement and appropriate supervision and care.
I believe the only option to achieve those goals at this time [is]
to grant the motion for permanent custody to the Fayette County
Children Services agency.

{¶ 7} On July 26, 2023, the juvenile court issued a decision granting permanent

custody of J.E. to FCCS. In so holding, the juvenile court determined that Father had

abandoned J.E. given that Father last had contact with J.E. on May 18, 2022. This was the

same day that Father was arrested for beating J.E. with the belt. The juvenile court also

found Father had not "made any attempts to contact the child via letter, phone or requests

for visits through the agency since the child's removal on May 18, 2022." The juvenile court

further determined that it was in J.E.'s best interest to grant permanent custody to FCCS.

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{¶ 8} In reaching this decision, the juvenile court determined that Father had made

"dismal progress" on his case plan, which Father had only begun working on while

incarcerated approximately two months prior to the hearing on FCCS' permanent custody

motion. The juvenile court also found the interrelationship between Father and J.E. was

"non-existent" and that there existed a "lack of parental bond" between Father and J.E. The

juvenile court further found that, since Father's arrest on May 18, 2022, J.E. had not had

any contact with Father, nor had Father made any attempts to contact J.E. including no

efforts to either telephone or write to J.E.

Father's Appeal and Single Assignment of Error for Review

{¶ 9} On August 2, 2023, Father filed a notice of appeal from the juvenile court's

decision granting FCCS' motion for permanent custody. Father's appeal now properly

before this court for decision, Father has raised one assignment of error for review. In his

single assignment of error, Father argues the juvenile court erred by granting permanent

custody to FCCS. To support this argument, Father claims the juvenile court incorrectly

determined that FCCS had proved, by clear and convincing evidence, that it was in J.E.'s

best interest to grant FCCS permanent custody. Although not explicit, Father's argument

is essentially a challenge to the sufficiency and manifest weight of the evidence supporting

the juvenile court's permanent custody decision. We find no merit to this challenge.

Sufficiency and Manifest Weight of the Evidence Standards

{¶ 10} "An appellate court's review of a juvenile court's decision granting permanent

custody is generally limited to considering whether sufficient credible evidence exists to

support the juvenile court's determination." In re D.P., 12th Dist. Butler No. CA2020-07-

074, 2020-Ohio-6663, ¶ 13. "That is to say, the juvenile court's decision to grant permanent

custody must be supported by sufficient evidence." In re P.E., 12th Dist. Clermont No.

CA2023-04-021, 2023-Ohio-2438, ¶ 14. Sufficiency of the evidence is a test of adequacy.

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In re L.C., 5th Dist. Stark 2023CA0043, 2023-Ohio-2989, ¶ 16. "[W]hether the evidence is

sufficient to sustain the judgment is a question of law." In re Z.J., 1st Dist. Hamilton No. C-

220627, 2023-Ohio-1347, ¶ 27. "However, even if the juvenile court's decision is supported

by sufficient evidence, 'an appellate court may nevertheless conclude that the judgment is

against the manifest weight of the evidence.'" In re C.S., 12th Dist. Clinton No. CA2020-

04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164,

2016-Ohio-72, ¶ 19.

{¶ 11} In determining whether a juvenile court's permanent custody decision is

against the manifest weight of the evidence, this court "'weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a

manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.'"

In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-

095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, ¶ 20. "In weighing the evidence, there is a presumption in favor of

the findings made by the finder of fact and evidence susceptible to more than one

construction will be construed to sustain the verdict and judgment." In re M.A., 12th Dist.

Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15. "We are especially mindful of this in

permanent custody cases." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-

1000, ¶ 26.

R.C. 2151.414(B)(1) and the Applicable Two-Part Permanent Custody Test

{¶ 12} The state is required to prove by clear and convincing evidence that the

statutory standards for permanent custody have been met before a natural parent's

constitutionally protected liberty interest in the care and custody of his child may be

terminated. In re R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-

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Ohio-3074, ¶ 14, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). In

Ohio, it is R.C. 2151.414(B)(1) that sets forth the applicable two-part permanent custody

test. In re M.H., 12th Dist. Clermont Nos. CA2021-08-050 thru CA2021-08-052, 2022-Ohio-

49, ¶ 30. One part of that two-part test requires the juvenile court to find any one of the

circumstances set forth in R.C. 2151.414(B)(1)(a) to (e) applies. In re C.B., 12th Dist.

Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10. This includes a circumstance where

the child has been abandoned. In re S.S., 12th Dist. Clermont No. CA2023-04-020, 2023-

Ohio-2916, ¶ 16, citing R.C. 2151.414(B)(1)(b). A child shall be presumed abandoned when

the child's parents have "failed to visit or maintain contact with the child" for more than 90

days. R.C. 2151.011(C). Id. This holds true "regardless of whether the parents resume

contact with the child" after that 90-day period ends. Id.

{¶ 13} The other part of that two-part test requires the juvenile court to find the grant

of permanent custody be in the child's best interest. In re D.K.W., 12th Dist. Clinton No.

CA2014-02-001, 2014-Ohio-2896, ¶ 21. This is generally done by utilizing the best-interest

factors set forth in R.C. 2151.414(D)(1). In re S.W., 12th Dist. Preble Nos. CA2022-08-013

and CA2022-08-014, 2023-Ohio-118, ¶ 19. These factors include, but are not limited to:

(1) the interaction and interrelationship of the child with the child's parents; (2) the wishes

of the child, as expressed directly by the child or through the child's guardian ad litem, (3)

the custodial history of the child; and (4) the child's need for a legally secure permanent

placement. R.C. 2151.414(D)(1)(a)-(d). These factors also include whether any of the

factors listed in R.C. 2151.414(E)(7) to (11) apply. In re G.A., 12th Dist. Clermont No.

CA2022-11-079, 2023-Ohio-643, ¶ 41, citing R.C. 2151.414(D)(1)(e). One of those factors,

R.C. 2151.414(E)(7), involves a parent having been convicted or pled guilty to specific

criminal offenses against the child. In re B.M., 12th Dist. Clinton Nos. CA2022-11-028 and

CA2022-11-029, 2023-Ohio-1112, ¶ 56. Another of those factors, R.C. 2151.414(E)(10),

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applies when the parent has abandoned the child. See, e.g., In re D.P., 12th Dist. Clermont

Nos. CA2022-08-043 and CA2022-08-044, 2022-Ohio-4553, ¶ 41 (finding a father had

abandoned his twin boys while he was in prison for over a year, "during which he had no

contact with the twins," thus constituting abandonment under R.C. 2151.414[E][10]).

Father's Argument and Analysis

{¶ 14} Father does not dispute the juvenile court's finding he had abandoned J.E.

while he was incarcerated in the Fayette County Jail following his conviction of child

endangerment. Father only disputes the juvenile court's decision finding a grant of

permanent custody to FCCS was in J.E.'s best interest. Father supports this claim by

arguing that, because the juvenile court's decision was "based upon such conflicting

evidence," the juvenile court's decision finding it was in J.E.'s best interest to grant

permanent custody to FCCS was not "based upon clear and convincing evidence." This is

because, according to Father, though there was some "testimony in support of the grant of

permanent custody," there was also "significant testimony, contra, to a grant of permanent

[custody] to FCCS." So much testimony, in fact, that Father claims "the contra testimony

clearly outweighs the testimony in support" of granting FCCS' motion.

{¶ 15} However, upon a thorough review of the record, this court disagrees with

Father's claim. This court instead finds there to be overwhelming competent and credible

evidence in the record to support the juvenile court's decision. This includes, but is not

limited to, the evidence in the record supporting the juvenile court's finding Father had made

"dismal progress" on his case plan, something which the record indicates Father only began

working on approximately two months prior to the permanent custody hearing. This also

includes the evidence in the record supporting the juvenile court's finding that the

interrelationship between Father and J.E. was "non-existent" and that there existed a "lack

of parental bond" between Father and J.E. This is in addition to the evidence in the record

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supporting the juvenile court's finding that J.E. had been in the temporary custody of FCCS

since Father's arrest on May 18, 2022, during which time J.E. did not have any contact with

Father, nor did Father make any attempts to contact J.E. by phone or letter. The record

instead supports the juvenile court finding that Father had never even asked FCCS if it was

possible for J.E. to visit him during the 12 months that he was incarcerated at the Fayette

County Jail.

{¶ 16} These findings, coupled with the evidence in the record that showed J.E. had

been receiving weekly counseling sessions while in the temporary custody of FCCS, had

been taking the necessary medication to address his ADHD, and appeared happy and

doing well in his current foster-to-adopt home, convinces this court that the juvenile court

did not err in its decision finding a grant of permanent custody to FCCS was in J.E.'s best

interest. This is because, contrary to Father's claim, the juvenile court's best interest

determination was both supported by sufficient evidence and was not against the manifest

weight of the evidence. Father's argument otherwise lacks merit. This is particularly true

in this case when considering both that (1) J.E.'s guardian ad litem recommended the

juvenile court grant FCCS' permanent custody motion, and (2) there was no other

appropriate relative placement available for J.E. Therefore, finding no merit to any of the

arguments raised by Father herein, Father's single assignment of error lacks merit and is

overruled.

Conclusion

{¶ 17} For the reasons outlined above, and having now overruled Father's single

assignment of error, Father's appeal from the juvenile court's decision granting permanent

custody of his son, J.E., to FCCS is denied.

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{¶ 18} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

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