In re C.D.

168 N.E.3d 1278

IN RE: C.D., Adjudged Neglected Child.

[John W. - Appellant]

NO. 17-20-11

Court of Appeals of Ohio, Third District, Shelby County.

Date of Decision: March 8, 2021

F. Stephen Chamberlain, Lima, for Appellant.

Madison S. Brinkman, for Appellee.

SHAW, J.

{¶1} Father-appellant, John W. ("John"), brings this appeal from the August 26, 2020 judgment of the Shelby County Common Pleas Court, Juvenile Division, granting permanent custody of the minor child C.D. to the Shelby County Department of Job and Family Services, Children Services Division ("the Agency"). On appeal, John argues that the trial court erred by denying him the ability to testify at the permanent custody hearing via electronic means, and that the trial court erred by ordering John, and other parties to the case, to refrain from posting about the case on social media.

Background

{¶2} C.D. was born in August of 2009. In April of 2018, he was living with his mother, Carol, and his younger sister, Ch.B., in Sidney Ohio. C.D.’s father, John, lived in Florida.¹ John was not the father of Ch.B.²

{¶3} The record indicates that on April 4, 2018, the Agency received a report regarding C.D. and Ch.B. The reporting source told the Agency that C.D. arrived at school with bright red lines all the way around his neck, bruises on his collar bone, and scratches on his elbow and ankle. C.D. told a caseworker that his neck was hurting and that he thought that it might be from fleas or bed bugs. In addition, C.D. told a caseworker that he and his younger sister had been left alone overnight, that it happened almost every night, and that it scared him.

{¶4} While visiting the children's school to investigate the matter, the Agency received reports that Carol, and other adults in her home, were using methamphetamines. Afterward, an officer and a caseworker for the Agency attempted to conduct a home visit at Carol's residence. They made contact with Carol, but Carol refused to take a drug screen and she refused to let the caseworker or the officer inside, stating that the home was infested with bed bugs. The officer and the caseworker thought Carol was "jittery" and "unfocused." They suspected Carol was under the influence at the time.

{¶5} Another visit to Carol's home was conducted May 18, 2018. At that time, a man named Tony answered the door. Tony admitted that Carol used drugs, but stated that he was the primary caregiver for the children and that he did not use drugs. Tony took a drug screen at that time and passed. However, two days later Tony was arrested and charged with burglary. Following his arrest, Tony tested positive for methamphetamines.

{¶6} On May 21, 2018, the Agency received another referral concerning the welfare of the children. The Agency was informed that the children were being taken in and out of a drug house. The Agency was also informed that Carol and her friends were using meth while the children were in Carol's care. The condition of Carol's residence was said to be deplorable.

{¶7} After receiving the new reports, on the night of May 21, 2018, the Sidney Police conducted a wellness-check at Carol's residence. At that time a known drug user was present at Carol's residence and the home was "filthy" and "infested with bed bugs." (Doc. No. 73). The home was "dangerously cluttered in certain areas and littered [with] bags of trash and/or dirty clothes and dirty dishes." (Id. ) In fact, the officers could not open the door to the children's bedroom all the way due to the clutter. The officers told the Agency that no child should be living in that residence.

{¶8} On May 22, 2018, a complaint was filed alleging that C.D. was a neglected child pursuant to R.C. 2151.03(A)(2). Following a shelter care hearing, C.D. was placed in the temporary custody of the Agency.

{¶9} John was eventually served with the complaint in Florida. After being served, John filed a handwritten letter with the trial court indicating that he had received service, that he was disabled, and that he could not afford an attorney because he was waiting on back-pay from social security. An attorney was appointed for John.

{¶10} The matter proceeded to an adjudication hearing on June 8, 2018. John was not present for the hearing. Testimony at the hearing echoed what had been previously alleged regarding the children's living conditions at Carol's residence and Carol's drug problem.³ In addition, there was testimony from witnesses who identified problems with the children's health and wellness, significant problems with the children's school attendance, and problems with Carol leaving the children alone overnight while she was off with others. The trial court filed a detailed entry on the matter adjudicating C.D. and Ch.B. neglected as alleged in the complaint. The children were placed in the temporary custody of the Agency.

{¶11} As the case proceeded, Carol was not cooperative with meeting Agency staff or seeing C.D. In fact, Carol did not visit with C.D. after his removal from her care in May of 2018. Her whereabouts were mostly unknown throughout the pendency of the case.

{¶12} In June of 2019, C.D.’s sister, Ch.B., was placed into the legal custody of her paternal grandmother. Meanwhile, the Agency explored numerous relative placement options for C.D. John was one of several of the placement options for C.D. that the Agency explored. In fact, John eventually filed a motion for legal custody of C.D. Notably, since John lived in Florida, and he did not have the financial means to travel regularly, he was only having contact with C.D. via the phone approximately once every three weeks.

{¶13} Through the interstate compact, John's home was studied to determine if C.D.’s legal placement with John would be a viable option. Ultimately John was rejected as a viable candidate for placement. John's live-in paramour was statutorily disqualified due to having a felony conviction in 2015. The paramour was also the only individual receiving an income at the time, as John received food stamps but no social security benefits. The GAL cited this as a reason that should the paramour move out, John would not be able to provide for C.D.

{¶14} Despite the fact that the interstate compact rejected John as a possible placement, the trial court reviewed John's request for legal custody of C.D. at a hearing, analyzing all of the information presented. Ultimately the trial court found that legal placement of C.D. with John was not appropriate. In addition to the rejection by the out-of-state home study, the trial court stated as follows.

[T]he Agency outlined a significant history of criminal offenses and legal problems of the father including aggravated battery, DUI, probation violations, and a past warrant for his arrest. John * * * has also been involved as a witness or victim in various criminal and inappropriate matters as reported by the Gainesville Florida Sheriff's Department. He has had certain mental health and psychological problems as a result, in part, of a homicide in which he was involved. Overall he did not credibly demonstrate to this Court that he is personally able to handle the custodial needs of C.D. at this time. The Court also questions his judgment in his attempt to use this case and the child's name to raise funds on the internet during the pendency of these proceedings, resulting in the agreed Order/Entry of this Court on January 31, 2019 prohibiting such conduct. The Court finds that such behavior is not to be in the best interest of the child. Overall, the Court finds the testimony and concerns of the Agency and the report and testimony of the Guardian Ad Litem credible and well-taken. When compared to the child's success in foster care the Court finds that placement of legal custody with the father is not in the child's best interest.

(Doc. No. 175).⁴

{¶15} Following the denial of John's motion for legal custody, the Agency continued to exhaust all possible relative placement options for C.D. After being unsuccessful, the Agency filed for permanent custody of C.D. on August 6, 2019; however, John eventually identified another possible relative placement for C.D. in Rhode Island. The Agency dismissed its original permanent custody motion to allow time for a home study to be done of John's relative. After this home study revealed that John's relative would be unable to care for C.D., the Agency again filed for permanent custody.

{¶16} A permanent custody hearing was held August 7, 2020. At the hearing, the trial court heard testimony of Carol's abandonment of C.D. and her lack of involvement with the case plan. The trial court heard testimony regarding the Agency's efforts to place C.D. with various relatives, including John.⁵ The trial court heard testimony regarding John's financial and health issues, the trial court heard testimony of C.D. thriving in his placement, and the trial court heard testimony of C.D.’s bond with his foster family. The GAL also recommended that the Agency's motion for permanent custody be granted.

{¶17} After hearing the testimony, the trial court determined, by clear and convincing evidence, that C.D. had been in the care of the Agency for 12 or more months of a consecutive 22 month period, and that it was in C.D.’s best interests for the Agency's permanent custody motion to be granted. A judgment entry terminating John's parental rights with respect to C.D. was filed August 26, 2020. It is from this judgment that John appeals, asserting the following assignments of error for our review.

Assignment of Error No. 1

The trial court committed error that was prejudicial to the appellant father by denying him his due process rights in failing to allow his testimony [through] participation via electronic means of telephone or internet.

Assignment of Error No. 2

The trial court committed error prejudicial to the appellant/father in [preventing] him (and other parties) from posting matters regarding the case on social media in violation of the First and

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