In re Z.C.

195 N.E.3d 590

In the MATTER OF: Z.C., Dependent/Neglected Child

NO. 2022-A-0014

Court of Appeals of Ohio, Eleventh District, Ashtabula County.

Decided: September 9, 2022

Colleen M. O'Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Appellee, Ashtabula County Children Services Board).

Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Appellant, D.C., Sr.).

Joseph K. Palazzo, Kurt Law Office, LLC, 4770 Beidler Road, Willoughby, OH 44094 (Guardian ad litem).

OPINION

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, D.C., Sr. ("Father"), appeals from the March 2, 2022 judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, granting permanent custody of Z.C., a minor child, to the Ashtabula County Children Services Board ("ACCSB"). For the reasons set forth herein, the judgment is affirmed.

{¶2} In January 2019, the Ashtabula County Children Services Board ("ACCSB") began looking into concerns related to eight children who lived with their mother and Benjamin Tressler, Sr. Shortly thereafter, ACCSB was granted temporary custody of the eight children. Father is the biological father of four of the eight children and did not reside with them at any point during the ACCSB investigation and subsequent legal proceedings as he and their mother were no longer together. This appeal pertains to only one of Father's children, Z.C.

{¶3} Father's four children were initially placed with their paternal grandfather, though they were later removed due to allegations of abuse. Six of the eight children, not including Z.C. and his half-brother, L.T., were placed with kin; those families were ultimately granted legal custody of the six children. Unfortunately, the families were unable to take all the children, and Z.C. and L.T. were placed in foster case. They have remained with the same foster family since March of 2020. ACCSB has since been granted permanent custody of L.T., and the foster family wishes to adopt both L.T. and Z.C.

{¶4} Father first contacted ACCSB in March 2019, and then again upon his release from prison for a parole violation in April 2020. He demanded custody of his children but declined to be added to the case plan. Instead, Father filed a motion for legal custody of Z.C. on May 11, 2020 in the juvenile court. On August 13, 2020, ACCSB filed a motion to modify temporary custody to permanent custody. Ultimately the court terminated Father's parental rights and granted permanent custody of Z.C. to ACCSB. Father filed objections to the magistrate's decisions, which the court overruled in March 2022. This appeal followed.

{¶5} Father's assigned errors are related and will be addressed together. They state:

{¶6} [1.] The Ashtabula County Juvenile Court erred and abused its discretion in finding that clear and convincing evidence supported granting permanent custody of the subject child to the Ashtabula County Department of Children and Family Services.

{¶7} [2.] The Juvenile Court erred to the prejudice of the appellant and against the best interest of the child by granting permanent custody, as permanent custody serves to permanently separate the child and his siblings on both a legal and physical basis.

{¶8} Pursuant to R.C. 2151.414(B), before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test. First, it must find one of the following factors applies: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with either parent, based on an analysis under R.C. 2151.414(E). Second, the court must determine that the grant of permanent custody to the agency is in the best interest of the child. R.C. 2151.414(B)(1) and 2151.414(B)(2) ; see also In re William S. , 75 Ohio St.3d 95, 98-99, 661 N.E.2d 738 (1996).

{¶9} "In determining the child's best interest under the second prong, R.C. 2151.414(D) requires that the juvenile court 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 parents 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; and (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." In re C.C. , 11th Dist. Trumbull No. 2016-T-0050, 2016-Ohio-7447, 2016 WL 6167244, ¶80.

{¶10} If both prongs of the foregoing test are met by clear and convincing evidence, the trial court may terminate the rights of a natural parent and grant custody of the child to the moving party. "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." In re K.H. , 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶42. We will not substitute our judgment for that of the trial court applying a clear-and-convincing standard where there is ample competent and credible evidence supporting the trial court's determination. See In re A.J.O. and M.N.O. , 1st Dist. Hamilton No. C-180680, 2019-Ohio-975, 2019 WL 1312858, ¶6.

{¶11} Moreover, an appellate court reviews a trial court's determination of permanent custody and the termination of parental rights for an abuse of discretion.

In re Snow, 11th Dist. Portage No. 2003-P-0080, 2004-Ohio-1519, 2004 WL 605151, ¶28. See also, In re D.F., 2d Dist. Montgomery Nos. 29350 and 2016-CA028, 2022-Ohio-1781, 2022 WL 1701845, ¶23 ; In re L.S. , 8th Dist., 2021-Ohio-510, 168 N.E.3d 149, ¶51 ; Matter of T.L. , 7th Dist. Jefferson No. 19 JE 0013, 2019-Ohio-4919, 2019 WL 6464132, ¶18 ; and Matter of W.G. , 7th Dist. Jefferson No. 22 JE 0002, 2022-Ohio-2342, 2022 WL 2443274, ¶23. "Further, we review a judgment of the trial court adopting the decision of its magistrate for an abuse of discretion." Molzon v. Molzon , 11th Dist. Ashtabula No. 2021-A-0024, 2022-Ohio-1634, 2022 WL 1537472, ¶51. An abuse of discretion is the trial court's "failure to exercise sound, reasonable, and legal decision-making." State v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶62, quoting Black's Law Dictionary 11 (8 Ed.2004). "The highly deferential abuse of discretion standard is particularly appropriate in allocation of parental rights and responsibilities cases since the trial judge is in the best position to determine the credibility of the witnesses and there ‘ "may be much that is evident in the parties’ demeanor and attitude that does not translate well to the record." ’ " Molzon, supra, at ¶53 quoting In re K.R., 11th Dist. Trumbull No. 2010-T-0050, 2011-Ohio-1454, 2011 WL 1104108, ¶30, quoting Wyatt v. Wyatt, 11th Dist. Portage No. 2004-P-0045, 2005-Ohio-2365, 2005 WL 1131766, ¶13.

{¶12} In this case, as to the first prong of the test, there is no dispute that Z.C. was in the temporary custody of ACCSB for more than 12 out of a consecutive 22-month period at the time the court granted ACCSB permanent custody. Instead, Father's argument focuses on the determination that permanent placement was in Z.C.’s best interest.

{¶13} Specifically, Father argues that ACCSB should have done more to help engage Father; that the legal custodians of the six other children agree to keep the children connected to each other and Father, and that the guardian ad litem ("GAL") did not recommend a grant of permanent custody. He argues, that taken together, the facts do not support a firm belief that permanent custody is the appropriate disposition. Additionally, Father argues that permanent placement is not in the best interest of Z.C. primarily due to the risk of severing his relationship with his siblings. In support, he cites In re D.F., 8th Dist., 2019-Ohio-3046, 140 N.E.3d 1081, which emphasized the importance of maintaining sibling relationships.

{¶14} However, In re D.F. is factually distinguishable from the case at bar. Crucially, the mother in that case substantially complied with the case plan and had consistent contact with her child all throughout the process. Id. at ¶11 and ¶38. The reviewing court noted that it was not the case in which the children were at any point out of contact with their mother. Id. at ¶38. Additionally, "[t]his family unit, when in Mother's care, is safe, happy and enjoys the company of one another. * * * The plan here was always reunification. Mother had done all the work to have her children returned to her. This family should be together." Id. at ¶54 and ¶55. In short, the mother in that case had consistent contact with her children and made substantial progress with the case plan, could meet the children's basic needs, was compliant with the mental health services, and was very bonded to her children.

{¶15} The facts here are distinguishable. Father's actions while the children were in the custody of ACCSB support the juvenile court's conclusion that permanent placement was in Z.C.’s best interest. When Father reached out to ACCSB in March 2019, he informed them that he didn't have a house big enough for all his children, and that he had not had contact with them for approximately three years. Throughout the pendency of the case, Father moved into a house that was under renovation but never followed through on a home visit, purportedly due to COVID-19 concerns. He had some contact with some of his children, though one...