[Cite as In re E.C.,
2024-Ohio-281.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re E.C. Court of Appeals No. L-23-1217
Trial Court No. JC 22289330
DECISION AND JUDGMENT
Decided: January 26, 2024
…
David T. Rudebock, for appellee.
Laurel A. Kendall, for appellant.
…
DUHART, J.
{¶ 1} This is an appeal from the October 5, 2023 judgment of the Lucas County
Court of Common Pleas, Juvenile Division, terminating the parental rights of appellant,
C.C., the father of minor child, E.C., and granting permanent custody of the child to
appellee, Lucas County Children Services (“LCCS” or “the agency”). For the reasons
that follow, we affirm the judgment.
{¶ 2} Father sets forth one assignment of error:
The trial court’s finding that father did not remedy the issue which
caused the removal such that the children [sic] could not be placed with
him within a reasonable time or should not be placed with him pursuant to
R.C. 2151.414(E)(1), (E)(2) and (E)(13) was not supported by clear and
convincing evidence when time remained on the case.
Background
{¶ 3} E.C. was born in late April 2020, in Ohio, to mother, A.O. The child was in
his mother’s custody when she overdosed, but did not die, in mid-May 2020. Mother
then left Ohio with the child and went to Indiana, to stay with her sister (“the sister”).
Father was not able to obtain custody of the child at that time, as he and mother were not
married and paternity had not been established. In mid-June 2020, mother died. The
child remained in Indiana, with the sister.
{¶ 4} Paternity of E.C. was established, and on March 9, 2022, father was awarded
custody. Father did not have a job or stable housing, so he and the child lived in a shelter
for a while. Father posted on Facebook for a babysitter for E.C., and M.V. responded.
Father allowed E.C. to live with M.V. until he could get on his feet and find a home.
{¶ 5} LCCS became involved and on May 17, 2022, a complaint in dependency
and neglect was filed. Father agreed to a safety plan for E.C., in which the child would
remain at M.V.’s house until father was stable.
2.
{¶ 6} The court approved a case plan for father, filed on June 17, 2022, which
included substance abuse treatment, with the goal of reunification. Father engaged in
substance abuse services at the Zepf Center (“Zepf”), was sober and had supervised visits
with E.C.
{¶ 7} In June and July 2022, father was arrested and charged with two counts of
aggravated menacing and one count of assault of M.V., as it was reported that he
threatened to burn down her house and kill everybody in her family. Father denied
culpability for all of the charges. Notwithstanding, father pled no contest to the
aggravated menacing charge and to an amended charge of menacing; he was found
guilty, sentenced and his jail sentences were suspended. Father appealed those
convictions; the appeals were dismissed as untimely. A trial date was scheduled for the
pending assault charge.
{¶ 8} On September 16, 2022, LCCS filed an amended complaint in dependency
and neglect. E.C. was adjudged a dependent child on September 21, 2022, and placed in
the temporary custody of LCCS. E.C. remained in M.V.’s care.
{¶ 9} In October 2022, father relapsed with alcohol.
{¶ 10} In November 2022, a trial was held on the assault charge and father was
found guilty and sentenced; the jail sentence was suspended. Father appealed his
conviction; the appeal was dismissed as untimely. Since father was on probation for a
3.
previous OVI conviction when he was convicted of aggravated menacing, menacing and
assault, he was charged with and convicted of violating his probation.
{¶ 11} On December 5, 2022, father’s suspended and reserved jail sentences were
enforced and he was ordered to serve his jail time, which was a little over one year, at the
Correctional Center of Northwest Ohio (“CCNO”).
{¶ 12} On July 5, 2023, LCCS filed a motion for permanent custody of the child,
on the bases of R.C. 2151.413(D)(1) and R.C. 2151.414(B)(1). On September 20, 2023,
the trial on LCCS’s motion was held. Father attended the trial.
{¶ 13} On October 5, 2023, the juvenile court issued its judgment granting
permanent custody of E.C. to LCCS. Father appealed.
Temporary/Permanent Custody Law
{¶ 14} R.C. 2151.353 provides in relevant part:
(A) If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of disposition:
…
(2) Commit the child to the temporary custody of any of the
following:
…
(f) Any other person approved by the court.
…
4.
(G) Any temporary custody order issued pursuant to division (A) …
* shall terminate one year after the earlier of the date on which the
complaint in the case was filed or the child was first placed into shelter
care, except that, upon the filing of a motion pursuant to section 2151.415
of the Revised Code, the temporary custody order shall continue and not
terminate until the court issues a dispositional order …. In resolving the
motion, the court shall not order an existing temporary custody order to
continue beyond two years after the date on which the complaint was filed
or the child was first placed into shelter care, whichever date is earlier …
*.
{¶ 15} The juvenile court may grant permanent custody of a child to a children
services agency if the court finds, by clear and convincing evidence, two statutory
prongs: (1) the existence of at least one of the four factors set forth in R.C.
2151.414(B)(1)(a) through (e); and (2) the child’s best interest is served by granting
permanent custody to the agency. In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-
4857, ¶ 12. Clear and convincing evidence requires proof which “produce[s] in the mind
of the trier of facts 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.
5.
First Prong
{¶ 16} This prong requires a finding by the juvenile court, by clear and convincing
evidence, that any of the factors under R.C. 2151.414(B)(1)(a) through (e) applies. The
court need only find that one factor exists. See In re C.W., 104 Ohio St.3d 163, 2004-
Ohio-6411,
818 N.E.2d 1176, ¶ 21. See also In re D.P., 6th Dist. Erie No. E-11-023,
2011-Ohio-4138, ¶ 52.
{¶ 17} Here, the court found that R.C. 2151.414(B)(1)(a) and (d) apply, which
state:
[T]he court may grant permanent custody of a child to a movant if
the court determines … by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody … to the agency …
* that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies …
for [12] or more months of a consecutive [22]-month period …, and the
child cannot be placed with either of the child’s parents within a reasonable
time or should not be placed with the child’s parents.
…
(d) The child has been in the temporary custody of one or more
public children services agencies … for [12] or more months of a
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consecutive [22]-month period, or the child has been in the temporary
custody of one or more public children services agencies … for [12] or
more months of a consecutive [22]-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.1
{¶ 18} When calculating “12 of 22” time, the operative ending date is the date the
agency’s motion for permanent custody was filed. In re A.C., 9th Dist. Summit No.
23090, 2006-Ohio-3337, ¶ 11-12, citing In re C.W. at ¶ 24 (“‘[A] motion for permanent
custody must allege grounds that currently exist.’ In re K.G., [9th Dist. Wayne No.
03CA0066,]
2004-Ohio-1421[,] … ¶ 13. A juvenile court lacks authority to grant an
agency’s motion [on “12 of 22”] grounds if those grounds were not satisfied when the
motion was filed.”).
{¶ 19} R.C. 2151.414(E) sets forth the elements necessary to satisfy a
determination under R.C. 2151.414(B)(1)(a), that the child cannot or should not be placed
with either parent within a reasonable time. See In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513,
857 N.E.2d 532, ¶ 38. Here, the juvenile court found that R.C.
2151.414(E)(1), (2) and (13) applied, which provisions state:
1
The “12 of 22” provision is found in R.C. 2151.414(B)(1)(d) and R.C. 2151.413(D)(1).
LCCS set forth the latter statute as one of the bases under which it sought permanent
custody of E.C.
7.
(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, 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.
(2) Chronic … chemical dependency of the parent that is so severe
that it makes the parent unable to provide an adequate permanent home for
the child at the present time and, as anticipated, within one year after the
court holds the hearing pursuant to division (A) of this section …;
…
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the child.
8.
Second Prong
{¶ 20} This prong concerns the best interest of the child, and when the juvenile
court is making this determination, R.C. 2151.414(D)(1) provides that all factors which
are relevant shall be considered by the court, including, but not limited to:
(a) 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;
(b) 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;
(c) The custodial history of the child …;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
Permanent Custody Trial - September 20, 2023
{¶ 21} The following is a summary of the testimony offered by the witnesses at
trial.
9.
M.V.
{¶ 22} M.V. testified that father posted on Facebook, twice, seeking a babysitter
for E.C. Following the first post, someone else watched E.C., then after the second post,
M.V. messaged father to see if she could help. She did not know father personally; she
was tagged about his post by a Facebook friend, whose dad was friends with father.
M.V. picked up E.C. in February 2022, and he has been with her since. The agency
became involved in April 2022.
{¶ 23} Father visited with E.C., usually when M.V. dropped E.C. off at father’s
place. M.V. cared for the child, loved him, taught him, provided for him and took him to
doctor appointments. She and her husband have two other children in the home. She
received no money or other assistance from father.
{¶ 24} Father consistently and continuously made threats over the phone and on
Facebook to M.V., and he “threatened to kill us. He has threatened my children. He’s
threatened to burn our home.” As a result of the threats, M.V. recalled that father was
charged with and convicted of aggravated menacing, and a no-contact order was issued.
{¶ 25} Some of E.C.’s relatives contacted M.V. so they could see the child. The
relatives included a few of E.C.’s siblings, mother’s cousins, the sister, some of father’s
relatives and their children. M.V. was asked if she permitted visits to occur and she
replied, “Of course.” She observed that father is estranged from many of his relatives.
10.
{¶ 26} M.V. is willing to accept legal custody of the child as “with everything that
has happened and the threats and things and safety[,] we just thought with keeping the
doors open for [father] to constantly come in and out … it wouldn’t be in our best
interest as family as a whole.” M.V. was interested in adopting E.C., and would allow
family to visit him if she adopted him, but not father due to safety concerns for her and
her family.
{¶ 27} E.C. is now three years old and he is thriving. He is talking, knows his
colors, shapes and animals, can count to 20 and is potty training.
Caseworker Kara Grabowski
{¶ 28} Ms. Grabowski is an ongoing caseworker for LCCS, assigned to E.C.’s
family in June 2022, following another caseworker who left the agency. Grabowski
reviewed the previous caseworker’s notes.
{¶ 29} The case plan services outlined for father were: a dual diagnostic
assessment and to follow the recommendations; attend batterer’s intervention program;
and attend a parenting program. Father underwent an assessment, and intensive
outpatient program (“IOP”) and participation in Star Court2 were recommended; he
engaged in those services. He was successful in Star Court for a period of time, but after
the criminal allegations and his positive alcohol screens, he was terminated from the
program. Father was very compliant with services at Zepf at first, with negative alcohol
2
Star Court is an additional service for substance abuse support.
11.
screens, but then he had positive screens. His relapse, which occurred after his ankle
monitor was removed, caused him to “backtrack.” Father did not successfully complete
his IOP due to his incarceration, so he was not referred to the batterer’s class or parenting
class because he was required to complete the substance abuse program first. While in
jail, father could not complete the agency’s programs.
{¶ 30} Father made a “huge effort” to visit the child consistently, and progressed
from level one visits (most restrictive) to level two visits (less restrictive). There were no
complaints about father’s visits with E.C. However, due to threats that father made
against the agency and threats to abscond with E.C., level one visits were again instituted
and then visits were paused, about two weeks before he went to jail.
{¶ 31} When the agency first became involved, E.C. was behind on his speech, as
he only said one or two words, so speech therapy was contemplated. However, the more
time that E.C. spent in M.V.’s home, the more his speech improved and no therapy was
needed. E.C. has been with M.V. for pretty much the entire case, and then some, and he
is doing very, very well and is very well bonded with his caregivers and their children.
{¶ 32} The agency sought appropriate relative placements for E.C., but found
none. LCCS is requesting permanent custody of the child, as it is in his best interest due
to father’s very extensive criminal history and issues with alcohol spanning four decades.
Grabowski recognized that father can remain sober for a short period of time, but he still
has on-going issues with alcohol, which have to be addressed following his incarceration.
12.
{¶ 33} Grabowski indicated that after father is released from jail, he would not
have sufficient time, in the six or so months before the case reaches the two-year mark, to
demonstrate to the agency that he has control over his sobriety. Further, he could not
complete LCCS’s programs3 and obtain stable housing in the time remaining on the case.
Father did not have enough time to do what he needs to do to get E.C. back.
Father
{¶ 34} Father testified that after E.C.’s mother overdosed in May 2020, in Toledo,
he tried to take the child, but paternity was not established. Mother panicked and ran to
Indiana to live with the sister. After paternity was established, E.C. was given to father
and about nine months later, in March 2022, he got custody of E.C. At that time, father’s
living situation was “really messed up because I didn’t have custody of him, I couldn’t
get daycare, welfare, WIC, I couldn’t get nothing.” Father was staying with a friend but
that did not work out because she had a drug problem that father did not know about.
Then, he and E.C. went to a shelter.
{¶ 35} Regarding knowing M.V., father said his “next girlfriend lived with [M.V.]
in like 2011, and me and [M.V.] talked a few times on the phone then during that time we
met and we had been friends on Facebook ever since.” M.V. told father that she would
watch E.C., but father “just kind of ignored it because I wasn’t really confident about it.”
3
Father participated in and completed programs while he was in jail, but in order to be
compliant with the agency, he was required to complete the agency’s programs.
13.
Mutual friends said M.V. was a good person, that she could be trusted with E.C., and
father “was struggling, I really didn’t have no other choice, I was trying to get a job and
get a place and … take care of my son, and she was in the beginning a savior.”
{¶ 36} Father’s involvement with LCCS started when someone called the agency,
he did not know if it was M.V. or his United Way caseworker, and said father was
homeless and “that our apartment got shot up and that is why I was being evicted out of it
and that was all a lie.” He admitted “we was on the verge of being evicted, the
paperwork had already been processed and everything, we was just waiting on them to
come.” M.V. told father that she could take care of E.C. so father could try and get on his
feet and get a place again; father agreed. LCCS asked for a safety plan wherein E.C.
would remain at M.V.’s house until father was stable; father was fine with that.
{¶ 37} Father was given case plan services when Grabowski became the
caseworker, and he immediately started services. He “graduated from LLP and I was
getting ready to go to OP,4 but they seen I dropped dirty for alcohol, so they told me they
wanted to reassess everything on that and I got incarcerated before that could be taken
care of.”
{¶ 38} Father was in the Star program and graduated from phase one to phase two
within two to three weeks, and he went from level one visits to level two within 30 to 45
days. He “was doing everything I was suppose to do -- by the book and I relapsed. …
4
There is no indication in the record what these abbreviations mean.
14.
I got convicted of an assault case that I’m innocent of, and it just pushed me over the
edge and I just said hell with it and started drinking again.” While he was in jail, “the
whole time … I’ve been doing better myself and doing programs and doing things I
needed to.” He took an eight-week anger management program and attended Seeking
Safety, a recovery service program which also dealt with trauma. He enrolled in the
following classes: financial literacy, job skill building, parenting, resume creation,
Thinking for a Change and anger management. He informed the casework and the
guardian ad litem (“GAL”) about all of these programs and classes.
{¶ 39} Father told the court, “I know I messed up, I know I was basically a first-
time father starting this out. I got a baby dropped in my lap and tried taking care of him
and I wasn’t ready to. … I had this baby, I couldn’t get help from welfare, WIC,
daycare, nobody.” He said “my whole life has been where if I have a problem, I deal
with it by alcohol. That’s not the way to deal with it. Or I deal with it by making idle
threats that I never follow through with. That’s not going to save my son. That’s not
going to make him the person I want him to be.”
{¶ 40} Father was angry about being in jail, “but maybe this is what I needed. …
* I don’t want to lose my son. He is all I have. He’s my world. … I have a huge
family, but I have done so much damage from my behavior throughout the years that
none of them want nothing to do with me.” He does not blame them, so “[a]ll I can do is
15.
try to build them bridges back and hope some day they forgive me for what I’ve done to
them.”
{¶ 41} Father admitted he has “an extensive criminal history, but I would say 80
percent of that is due to alcoholism. I remained 100 percent sober while I’ve been
incarcerated.” He is a trustee in the honor dorm and earned seven days a month off of his
sentence.
{¶ 42} He apologized to M.V. and said he was grateful for her and her family
being there for E.C. Father indicated that he does not want to kick M.V. and her family
out of E.C.’s life, as E.C. loves them like they are a part of his family, but father wants
“to be a part of my son’s family too.” Father said “I messed my whole life up, I have
other children that don’t even speak to me because of the way I lived my life and the
things I done.” Father is 56 years old and has eight children; two are deceased. He
shared that his “only other son got murdered in 2010 and I lived with that everyday
regretting it thinking if I wouldn’t have been in jail I might have been able to save my
son.”
{¶ 43} Father insisted that he did not deserve to lose custody of E.C. permanently,
and with more time, he could prove to everyone that he can change.
Attorney Alanna Paully, GAL
{¶ 44} The GAL testified that she has been E.C.’s GAL since he was removed
from father’s care. She conducted an independent investigation with respect to E.C., and
16.
authored a report which was filed with the court. She visited with the child at M.V.’s
home, she reviewed documents relevant to the case and she spoke with father.
{¶ 45} The GAL observed that the child has been in his placement for about one
and a half years, he is bonded with the family, he is emotionally attached to them, he is
thriving and there are no concerns with his placement.
{¶ 46} The GAL noted mother is deceased and father is in jail. The GAL met with
father once, one-on-one, and saw him at the review hearings. He expressed that he loves
E.C. very much, and when the GAL saw them together, father was very loving towards
E.C.
{¶ 47} The GAL had concerns with father maintaining his sobriety when is out of
a controlled setting (like jail or having an ankle monitor), as he tends to relapse which
leads to anger management issues. When he is released from jail, father will have
services that he must complete, which would likely go well beyond the four to six months
remaining on the case. The GAL is aware that father took classes at CCNO, but those
classes would not be adequate to complete his case plan. She feels that father taking the
classes shows initiative on his part, and the classes could potentially benefit him.
{¶ 48} The GAL contacted relatives, suggested by father, for potential placement
of E.C. She opines it is in the child’s best interest that permanent custody be awarded to
LCCS.
17.
Juvenile Court’s Judgment
First Prong of Permanent Custody Analysis
{¶ 49} The court found, by clear and convincing evidence that R.C.
2151.414(B)(1)(d) applied. The court also found, by clear and convincing evidence, that
R.C. 2151.414(B)(1)(a) applied, that E.C. cannot or should not be placed with father
within a reasonable time. The court relied on R.C. 2151.414(E)(1), (2) and (13).
{¶ 50} The court found, under R.C. 2151.414(E)(1), that LCCS made reasonable
efforts: to alleviate the need for out-of-home placement by offering father case plan
services, designed to remedy the issues; to identify, implement and finalize a plan of
permanent custody and adoption for E.C.; and to prosecute the motion for permanent
custody.
{¶ 51} The court also found, under R.C. 2151.414(E)(2), that despite LCCS’s
reasonable case planning and diligent efforts to assist father to remedy the issues which
caused E.C. to be placed outside of the home, father continuously and repeatedly failed to
make significant progress in his case plan services. The court found that: father has
chronic substance issues; he was unsuccessfully discharged from substance abuse
treatment at Zepf and Star Court; he was convicted of assault, menacing and aggravated
menacing, and placed on probation; he violated probation and was ordered to serve
consecutive jail terms; he was in jail at the time of the trial, with the earliest release date
in January 2024; he had not even started parenting or anger management classes as
18.
required by the agency, or obtained appropriate housing; E.C. had been in care for 16
months at the time of trial; father clearly failed to alleviate any of the issues that led to
E.C.’s removal; and father continues to demonstrate that he is unable to provide a stable
environment for E.C.
{¶ 52} Lastly, the court found R.C. 2151.414(E)(13) applied, as father is
repeatedly incarcerated which prevents him from providing care for the child.
Second Prong of Permanent Custody Analysis
{¶ 53} As to the child’s best interest, the court considered the relevant factors in
R.C. 2151.414(D)(1)(a) through (e) in reaching its determination.
{¶ 54} Regarding (D)(1)(a), the court considered E.C.’s interactions and
relationships with father and others, and found: father has not visited with the child since
December 2022, when he went to jail; E.C. has been placed in a “free home” for 16
months and M.V. now qualifies as “Kinship caregiver”; and E.C. has thrived in M.V.’s
home and is bonded to the members of the household.
{¶ 55} With respect to (D)(1)(b), the court considered E.C.’s wishes, as expressed
by the GAL since E.C. is only three years old. The court found that the GAL testified it
is in E.C.’s best interest to have permanent custody granted to the agency, as that appears
to be the most feasible way of providing E.C. a stable environment.
{¶ 56} Concerning (D)(1)(c), the court considered E.C.’s custodial history and
found: E.C. lived with mother until she passed away, then he resided with the sister until
19.
father obtained custody; almost immediately after obtaining custody, father sought
placement of E.C. in M.V.’s home due work obligations; father became unreachable and
M.V. kept E.C. for several weeks without contact from father; and E.C. only spent a
minimal amount of time actually in father’s care.
{¶ 57} Regarding (D)(1)(d), the court considered E.C.’s need for a legally secure
placement and determined an award of permanent custody to LCCS is in his best interest.
The court found that no appropriate relatives were identified as willing caretakers, father
is repeatedly incarcerated and mother is deceased. The court also found it was unlikely
that E.C. would find a stable, legally secure and permanent placement in the absence of
an award of permanent custody to the agency.
{¶ 58} With respect to (D)(1)(e), the court found that none of the factors in R.C.
2151.414 (E)(7) to (11) apply.
Conclusion
{¶ 59} The juvenile court concluded after considering the testimony of the
witnesses, the exhibits entered into evidence and all other matters of record, that pursuant
to R.C 2151.414(B)(1)(a) and (d) and R.C. 2151.414(E)(1), (2) and (13), by clear and
convincing evidence, E.C. cannot and should not be placed with father within a
reasonable period of time, and pursuant to RC. 2151.414(D)(1)(a) through (e), an award
of permanent custody to the agency is in the child’s best interest.
20.
Assignment of Error
Father’s Arguments
{¶ 60} Father argues that LCCS did not prove, by clear and convincing evidence,
that the child could not be placed with father pursuant to R.C. 2151.414 (E)(1), (E)(2) or
(E)(13). He further argues that the juvenile court’s finding that he did not remedy the
issue which caused the removal such that E.C. could not or should not be placed with him
within a reasonable time was not supported by clear and convincing evidence, when time
remained on the case. Father sets forth that “‘“a reviewing court will examine the record
to determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof.”’” (Citations omitted.)
{¶ 61} Father contends it was undisputed that he made a “huge” effort to comply
with case plan services by arranging for a dual assessment, engaging in services at Zepf
and visiting E.C. regularly before he was in jail. Father denies that he was guilty of
menacing M.V., and filed an appeal. He expects to be released from jail in December
2023.
{¶ 62} Father acknowledges he did not complete the agency’s programs, but
claims he has completed programs intended to help him get on his feet financially when
he is released from jail. He refers to his trial testimony, that he believes his time in jail
helped him prepare for sobriety and he will be able to demonstrate his sobriety and job
skills after he is out of jail. He contends this court should find there is still time on the
21.
case because E.C. has been in temporary custody for about 18 months, and R.C.
2151.414(D)(2)(b) provides that temporary custody may last for 24 months. Father
maintains that time had not run completely run on his ability to demonstrate compliance
and stability.
{¶ 63} In conclusion, father requests that this court rule that LCCS did not prove
by clear and convincing evidence that he is incapable of caring for the minor child.
LCCS’s Arguments
{¶ 64} LCCS argues that the record supports the juvenile court’s ruling, as the
record indicates that although father may have engaged in services, he did not remedy his
issues, as he relapsed on alcohol in October 2022, and engaged in conduct which led him
to being jailed. The agency notes that father sought additional time after his release from
jail to demonstrate he is able to provide care for E.C., but at the time of trial, E.C. had
been in LCCS’s care for nearly 18 months while father had been in jail for 10 months,
was unable to participate in his case plan services and remained homeless.
{¶ 65} LCCS contends that when evaluating the changes father has made in his
behavior, the record shows he relapsed, he engaged in criminal acts which led to him
being jailed, and he continued to make threats up until a week prior to the permanent
custody trial. The agency asserts the record is replete with actions which demonstrate
that father has failed to change his conduct and he has failed to alleviate any of the issues
22.
which led to E.C.’s removal from father’s care. The agency insists that delaying
permanency for this child does him a disservice.
{¶ 66} LCCS further submits that father has struggled with alcohol for decades
and his criminal record shows that he has been repeatedly incarcerated due to his alcohol
abuse. The agency notes that when father is jailed, it prevents him from visiting with the
child or providing care for the child. The agency maintains that father’s own testimony
indicates he has poor coping skills and turns to alcohol when difficult situations arise.
{¶ 67} LCCS observes that trial testimony shows that E.C. is bonded to M.V. and
her family, and the GAL, after completing an independent investigation, believed it to be
in the child’s best interest to be placed in the permanent custody of the agency.
{¶ 68} LCCS contends there was more than sufficient evidence presented for the
juvenile court to find that permanent custody was in E.C.’s best interest. Thus, the
agency submits that father fails to show how the court’s decision was an abuse of
discretion or lacked clear and convincing evidence to terminate his parental rights.
Standard of Review
{¶ 69} Father sets forth the standard of review is clear and convincing evidence,
and “[in] determining whether a trial court based its decision upon clear and convincing
evidence, ‘a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.’ [Sic.]
State v. Schiebel, 55 Ohio St.3d 71, 74,
564 N.E.2d 54 (1990). In re K.C., [4th Dist.
23.
Athens No. 20CA8,] 2021[-]Ohio[-]184 …, ¶ 14.” Notwithstanding, father contends
“[t]his court should find that the trial court abused its discretion by awarding custody of
the minor child to [the agency].”
{¶ 70} LCCS sets forth that there are two standards of review: abuse of discretion
and “manifest-weight-of-the-evidence.”
{¶ 71} A review of the law shows that in In re Z.C., Slip Opinion No. 2023-Ohio-
4703, ¶ 1, the Supreme Court of Ohio held that “the proper appellate standards of review
to apply in cases involving a juvenile court’s decision under R.C. 2151.414 to award
permanent custody of a child and to terminate parental rights … are the sufficiency-of-
the-evidence and/or manifest-weight-of-the-evidence standards.” The appropriate
standard to apply depends on the nature of the arguments presented by the parties. Id. at
¶ 11.
Standards Defined
{¶ 72} Sufficiency of the evidence is a test of adequacy. State v. Thompkins, 78
Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). “Whether the evidence is legally sufficient
to sustain a verdict is a question of law.”
Id.
{¶ 73} Manifest weight of the evidence “‘depends on [the evidence’s] effect in
inducing belief.’” (Emphasis deleted.) Thompkins at 387, quoting Black’s Law
Dictionary 1594 (6th Ed.1990). When reviewing for manifest weight, the appellate court
weighs the evidence and all reasonable inferences, considers the witnesses’ credibility
24.
and decides whether, in resolving evidentiary conflicts, the judge lost her way and
created a manifest miscarriage of justice such that the judgment must be reversed and a
new trial ordered. Eastley v. Volkman,
132 Ohio St.3d 328,
2012-Ohio-2179,
972 N.E.2d
517, ¶ 20.
Analysis
{¶ 74} After reviewing the arguments of father and the agency, we find the
sufficiency of the evidence standard applies to our examination of the juvenile court’s
decision, where the court found, inter alia, that R.C. 2151.414(B)(1)(a) and (d) applied.
{¶ 75} Regarding the court’s finding that R.C. 2151.414(B)(1)(d), the “12 out of
22” provision applied, the record shows the agency filed its motion for permanent
custody of E.C. under, inter alia, the “12 out of 22” provision in R.C. 2151.413(D)(1),
which provides a “[c]hild has been in the temporary custody of … [a] public children
services agenc[y] … for [12] or more months of a consecutive [22]-month period.”
The record further shows that at the time LCCS filed its motion, in July 2023, E.C. had
been in its temporary custody since May 2022, which we note is not a 22-month period.
As set forth above, a motion for permanent custody must allege grounds which exist at
the time the motion is filed, In re C.W., supra, at ¶ 24, which is not the case with LCCS’s
motion. Thus, LCCS had no basis to move for permanent custody of E.C. under the “12
out of 22” provision. Consequently, we find that the juvenile court’s finding that the “12
out of 22” provision applied is not supported by sufficient evidence.
25.
{¶ 76} With respect to the juvenile court’s finding that R.C. 2151.414(B)(1)(a)
applied, that E.C. could not and should not be placed with father within a reasonable
time, we find, after thoroughly reviewing the record, that the court’s decision to grant
permanent custody of E.C. to LCCS on this basis is supported by sufficient evidence.
{¶ 77} The record reveals that father has had issues with alcohol for four decades,
he has anger management issues, he has an extensive criminal history, he has been in and
out of jail many times over the years, and at the time of trial, he was not in a stable place
as he had no housing, no job and he was in jail.
{¶ 78} The record further shows that despite the services offered to father by
LCCS to assist him in remedying the issues which caused E.C. to be placed outside of the
home, father failed to make significant progress in those services. He was initially
compliant with services, as he made a “huge effort” to visit E.C. consistently and he
underwent an assessment and participated in substance abuse treatment, with positive
results. Yet, during that time, he was charged with committing three crimes against
M.V., who had taken E.C. into her home and cared for him, without payment or
assistance from father; he pled to and was convicted of two of the crimes.
{¶ 79} In October 2022, father relapsed, which he claimed was because he was
convicted of assault, of which he was innocent. However, the record shows that he was
convicted of assault in November 2022. The record also reveals that father’s visits with
E.C. were eventually stopped due to threats that he made against the agency and threats
26.
to abscond with E.C. Then, in December 2022, father was ordered to serve his jail
sentences, which totaled approximately one year.
{¶ 80} Ultimately, when the agency filed for permanent custody of E.C., father
had not completed any of his case plan services. According to the testimony of the
caseworker and GAL, father could not participate in case plan services for LCCS while
he was incarcerated, and following his release from jail, in the four to six or so months
remaining before the case reached the two-year mark, there was not sufficient time for
father to complete his services.
{¶ 81} The record further shows that when LLCS became involved, E.C. was
behind on his speech, but the more time he spent in M.V.’s home, the more his speech
improved. E.C. has been with M.V. for the entirety of the case, he is thriving in her care
and he is bonded with her and the family. The GAL testified it was in E.C.’s best interest
to have permanent custody granted to the agency, so the child was in a stable
environment.
{¶ 82} We therefore find there is sufficient evidence in the record to support the
juvenile court’s decision that pursuant to R.C 2151.414(B)(1)(a) and R.C.
2151.414(E)(1), (2) and (13), E.C. cannot and should not be placed with father within a
reasonable period of time, and pursuant to RC. 2151.414(D)(1)(a) through (e), an award
of permanent custody to the agency is in E.C.’s best interest.
27.
{¶ 83} We conclude that while the juvenile court erred in finding pursuant to R.C.
2151.414(B)(1)(d), that E.C. had been in the temporary custody of LCCS for more than
12 months of a consecutive 22-month period, this error is harmless, as there is an
abundance of evidence in the record to support the court’s finding under R.C.
2151.414(B)(1)(a).
{¶ 84} Accordingly, we find father’s sole assignment of error not-well taken.
{¶ 85} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas, Juvenile Division, is affirmed. Father is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
28.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
29.
