[Cite as In re Z.P., 2017-Ohio-6987.]



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




IN RE: Z.P., Y.P., D.P., J.H., AND P.H.   :        APPEAL NOS. C-160572
                                                                C-160584
                                          :                     C-160620
                                                   TRIAL NO. F11-2431Z
                                          :

                                          :            O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 28, 2017



Raymond T. Faller, Hamilton County Public Defender, and Robert Adam Hardin,
Assistant Public Defender, Appellant Guardian ad Litem for Z.P., Y.P., D.P., J.H., and
P.H.,

Raymond Becker, for Appellee Mother,

The Barbanel Law Firm, LLC, and Roberta J. Barbanel, for Appellee P.H., father of
J.H., and P.H.,

James W. Costin, In re Williams attorney for the children, Z.P., Y.P., D.P., J.H., and
P.H.,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Lee Slocum, Assistant
Prosecuting Attorney, for Hamilton County Department of Job and Family Services.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}       The guardian ad litem (“GAL”) for the children, Z.P, Y.P., D.P., J.H., and

P.H., has appealed from the juvenile court’s judgment denying the motion filed by the

Hamilton County Department of Job and Family Services (“HCJFS”) for permanent

custody, and awarding legal custody of the children to their mother.


                                             Background


       {¶2}       Mother has three children, Z.P., Y.P., and D.P., from her relationship

with Y.P., Sr. The father of her other two children, P.H. and J.H., is her husband, P.H.

(“stepfather”).

       {¶3}       On October 26, 2011, HCJFS filed a complaint alleging that mother’s

five children were abused and dependent, after mother refused to cooperate with an

investigation into allegations that stepfather had sexually abused her then five-year-old

daughter, D.P. HCJFS alleged that the child had tested positive for gonorrhea, as did

stepfather. A magistrate of the Hamilton County Juvenile Court granted temporary

custody of the children to HCJFS, and HCJFS implemented a case plan for the family.

       {¶4}       In March 2012, HCJFS filed an amended complaint seeking permanent

custody of the five children. M.F., a paternal aunt, filed a petition for custody of Z.P.,

Y.P., and D.P. Then P.B.C., the maternal grandmother, petitioned for custody of all five

children.

       {¶5}       In October 2013, D.P. was adjudicated abused and dependent, and the

other four children were adjudicated dependent. Over the next several months, the

magistrate conducted 13 evidentiary hearings, culminating on July 7, 2014.




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                                  The Magistrate’s Decision


       {¶6}    After continuing the matter numerous times, the magistrate issued a

decision in July 2015, awarding legal custody of Z.P., Y.P., and D.P. to M.F., and

awarding permanent custody of P.H. and J.H. to HCJFS.

       {¶7}   In his decision, the magistrate discussed the evidence that had been

presented. He noted that mother had completed all of the recommended case-plan

services, including parenting and domestic-violence education, as well as individual

therapy.   According to the Family Nurturing Center (“FNC”), mother had visited

consistently with her children and there was no concern about her contact with or care

for the children.    In addition, mother had participated in some of D.P.’s therapy

sessions and was highly supportive of the child.

       {¶8}   With respect to D.P.’s contraction of gonorrhea, the magistrate

determined that D.P. had been the victim of sexual abuse, noting that stepfather had

tested positive and had been treated for gonorrhea contemporaneously with the child’s

diagnosis and treatment.       The magistrate noted that police had conducted an

investigation into the likely sexual abuse of D.P. The child had been subjected to

forensic interviews in which she had identified stepfather as the perpetrator. She also

identified a 17-year-old person named “D.J.” as a perpetrator. Police were unable to

identify anyone named “D.J.”

       {¶9}   Stepfather submitted to, and failed, a police polygraph examination

about sexual misconduct with D.P. Stepfather claimed that the test results had been

skewed because he had been emotionally agitated and upset at the time. He later

passed a polygraph administered by an independent examiner.

       {¶10} The magistrate noted that Rachel Rigg, D.P.’s longtime therapist,
testified that D.P. had never disclosed abuse by anyone named D.J., and that the child




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consistently discussed abuse by her “dad,” whom she identified as stepfather. Rigg said

that D.P. had identified no potential perpetrator other than stepfather.

       {¶11} The magistrate concluded that stepfather had sexually abused D.P., and
that mother, stepfather, and Y.P., Sr., lacked fitness to care for their respective children.

       {¶12} The magistrate determined that mother was not an appropriate caregiver

for her children. The magistrate noted mother’s continuing insistence that D.P. had

contracted gonorrhea at birth, despite clear medical evidence to the contrary. Mother

disbelieved D.P.’s statements about sexual abuse and maintained that D.P.’s therapist

had influenced the child’s narrative of abuse. The magistrate found that mother would

not be dutiful in protecting D.P. from further abuse, and could not genuinely support or

participate in D.P.’s trauma therapy. The magistrate determined that mother was not

prepared to meet D.P.’s emotional and mental-health needs. In addition, mother

remained married to stepfather, despite her claim that they had separated.               The

magistrate concluded that mother did not perceive stepfather as a risk to her children,

so it was unlikely that mother would adhere to court orders preventing stepfather from

having contact with the children.

       {¶13} Consequently, the magistrate determined that an award of custody to

M.F. was in the best interest of Z.P., Y.P., and D.P. With respect to J.H. and P.H., the

magistrate determined, in accordance with R.C. 2151.414(D)(1), that an award of

permanent custody to HCJFS was in their best interest, and that the children should

not be placed with either parent, pursuant to R.C. 2151.414(E).            Accordingly, the

magistrate awarded legal custody of Z.P., Y.P., and D.P. to M.F., and awarded

permanent custody of P.H. and J.H. to HCJFS.

       {¶14} Objections to the magistrate’s decision were filed by mother, stepfather,

HCJFS, and the GAL. In addition, the GAL filed motions for in-camera interviews with

the children and to present additional evidence. The GAL noted that the last trial date


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had been in July 2014 and that the magistrate had not issued his decision until a year

later. The juvenile court granted the GAL’s motions.

       {¶15} Beginning in April 2016, the court took additional evidence over the

course of several more dates, and conducted in-camera interviews with the children.


                               The Juvenile Court’s Judgment


       {¶16} On June 27, 2016, the court issued a judgment modifying the

magistrate’s decision. The court determined that M.F. was no longer a viable legal

custodian for Z.P., Y.P., and D.P., and that an award of permanent custody to HCJFS

was not in the best interest of any of the children. The court placed the children in the

legal custody of mother, with an order limiting the children’s contact with their fathers.

The trial court stayed its order pending appeal.


                                         The Appeals


       {¶17} The GAL and HCJFS appealed the court’s judgment, but HCJFS later

withdrew its appeal without explanation. In a single assignment of error, the GAL

argues that the juvenile court’s determination that mother had substantially remedied

the conditions that caused the children to be placed outside the home was contrary to

the weight of the evidence. The GAL argues that the trial court should have found that

mother failed to remedy the problems and that it was in the best interest of the children

to award permanent custody to HCJFS.

       {¶18} A juvenile court’s determination on a motion for permanent custody

must be supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton

Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. “Clear and convincing evidence” is

evidence sufficient to “produce in the mind of the trier of fact[] a firm belief or




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conviction as to the facts sought to be established.” Id., quoting In re K.H., 119 Ohio

St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42. In reviewing a juvenile court’s

determination on a permanent-custody motion, we must examine the record and

determine if the juvenile court had sufficient evidence before it to satisfy the clear-and-

convincing standard. Id.

       {¶19} R.C. 2151.414 governs the procedures a juvenile court must follow and

the findings it must make on a motion for permanent custody. Id. at ¶ 46. We will

apply the version that was in effect on the date that the motion for permanent custody

was filed, which in this case was March 8, 2012. See In re C.E.1, 1st Dist. Hamilton No.

C-140674, 2015-Ohio-5710; In re C.M., 1st Dist. Hamilton Nos. C-150365 and C-

150396, 2015-Ohio-3971, ¶ 13.

       {¶20} Under former R.C. 2151.414(B)(1)(a), a juvenile court may grant

permanent custody of a child to the agency if the court determines by clear and

convincing evidence that the child cannot be placed with one of the child’s parents

within a reasonable time, or should not be placed with either parent, and determines

that permanent custody is in the child’s best interest.


                        Cannot or Should Not be Placed with Mother


       {¶21} Under former R.C. 2151.414(E), the juvenile court must enter a finding

that a child cannot be placed with either parent within a reasonable time or should not

be placed with either parent if it determines by clear and convincing evidence that one

of the factors listed in former R.C. 2151.414(E)(1) through (16) exists as to each of the

child’s parents.

       {¶22} In this case, the juvenile court found by clear and convincing evidence

that one or more of the factors in former R.C. 2151.414(E) existed as to each of the




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fathers, but not as to mother. After considering each of the factors, the court concluded

that the children could be placed with mother, with orders limiting the fathers’ contact

with the children.

       {¶23} The GAL contends that the juvenile court’s determination that the

children should be placed with mother was against the weight of the evidence.

Specifically, the GAL asserts that the evidence supported a finding under former R.C.

2151.414(E)(1) that mother had failed to remedy the conditions causing the children to

be placed outside the home. In addition, the GAL asserts that mother’s demonstrated

unwillingness and inability to provide a safe and adequate home for her children and to

prevent her children from suffering physical, emotional, or sexual abuse, supported

findings under former R.C. 2151.414(E)(4) and (14). We agree.

       {¶24} As the juvenile court pointed out in its decision:

       The main issue in this case throughout and the main issue still remaining

       is whether the mother is capable of or willing to protect her children

       from the fathers. This has been particularly true regarding [stepfather].

       * * * The mother has held out from the beginning of this case, and still

       does, that her husband did not commit that act. The concern of child

       caring authorities is that the mother will not protect the children from

       further abuse by [stepfather] and will cover up for him.

       {¶25} The court determined that strong evidence indicated that stepfather had

“sexually abused his stepchild [D.P.] when she was 5 years old and that he sexually

transmitted the disease of gonorrhea to her,” but then stated that the evidence was “not

conclusive.” The court found, however, that “[t]he fact that the step-father lived with

the child; that both he and [D.P.] had gonorrhea at near the same time; and his




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deception at the hospital and other times is strong evidence against him; especially

when coupled with [D.P.’s] statements.”

       {¶26} The court noted that mother is still married to stepfather and continued

a close relationship with him, even though she “lamely” claimed to be separated from

him and living apart. The court noted that much of the concern regarding mother’s

willingness and ability to protect her children from stepfather stemmed from her

history of ignoring protective orders and her ongoing deceptive behavior. Early on in

the case, mother and stepfather had both violated an order that they have no

unsupervised contact with the children when they took D.P. to the hospital to demand a

rape kit, and then lied about their reason for the hospital trip. An early safety plan

required a family supervisor to be present at all times, but when HCJFS caseworkers

went to the home, no supervisor had been present. Mother and maternal grandmother

had actively attempted to thwart the physical removal of the children from the home.

Also, stepfather had visited with mother and the children, despite orders prohibiting

him from having contact with them, and mother had inappropriately recorded

statements by stepfather to be played for the children during her visits with them.

       {¶27} Even after mother claimed to have separated from stepfather, the two

had been seen together on multiple occasions, including hospital visits, court hearings,

and visitation appointments. Mother and stepfather had arrived at an HCJFS meeting

together but had entered separately so as to appear not to be together. In addition, the

court noted, the two had appeared to “be in some type of financial arrangement along

with the grandmother in the purchase of the mother’s current home.” The court also

stated, “There were many other examples of mother’s and [stepfather’s] deceptive

actions that created HCJFS distrust regarding the mother’s willingness to overlook the




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                  OHIO FIRST DISTRICT COURT OF APPEALS



safety of her children in favor of her relationship with [stepfather] and hide it from

authorities.”

       {¶28} In addition, the court recognized:

       But the mother never satisfied the main requirement expected by

       [HCJFS]; that is, to acknowledge that her husband sexually abused

       [D.P.] and that she would discontinue association with him, forbid him

       to be near the children and protect them from him. Throughout the

       hearings, testimony and reports[,] there were indications that the

       children would have been returned to the mother if she would

       acknowledge her husband’s culpability with [D.P.].

       {¶29} The court also noted that “mother still supports her husband and does

not believe that he sexually abused her daughter.”          We note that mother has

consistently insisted that stepfather is not the perpetrator and therefore, we do not

believe she is capable of, or willing to, protect her children from him. This is true even

with court orders in place.

       {¶30} We agree with the GAL that the evidence supported a finding by clear

and convincing evidence that mother failed to remedy the underlying problem that

initially caused her children to be removed from their home because she failed to

acknowledge the overwhelming evidence that stepfather had sexually abused her child.

See former R.C. 2151.414(E)(1). Mother’s conduct demonstrated her unwillingness to

provide an adequate permanent home for the children or to prevent them from

suffering abuse. See former R.C. 2151.414(E)(4) and (14). The record contained ample

evidence that the children should not be placed with mother. Moreover, given mother’s

well-documented history of ignoring court orders concerning stepfather’s contact with

the children and her deception about his ongoing involvement in their lives, the




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                  OHIO FIRST DISTRICT COURT OF APPEALS



likelihood of mother’s adhering to another order limiting stepfather’s contact with the

children was, at best, remote. The juvenile court should have entered a finding that the

children cannot be placed with mother. See former R.C. 2151.414(E).


                                         Best Interest


       {¶31} For the same reasons that the children should not be returned to their

mother, their best interest would not be served by returning them to her. In assessing

the best interest of a child for purposes of a permanent-custody determination, a

juvenile court must consider all relevant factors, including: (a) the child’s interaction

with parents, siblings, relatives, foster caregivers and out-0f-home providers, and any

other person who may significantly affect the child; (b) the wishes of the child; (c) the

custodial history of the child; (d) the child’s need for a legally secure placement and

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

and (e) whether any of the factors under former R.C. 2151.414(E)(7) to (11) apply.

Former R.C. 2151.414(D)(1)(a)-(e); In re K.G. at ¶ 16.

       {¶32} In this case, the juvenile court discussed each of the best-interest factors

in its decision. With respect to the children’s interaction with significant others, the

court noted that the children had lived with mother until they were removed from her

home in 2011. At the time of removal, the children were ages eight, six, five, two, and 11

months. By the time of the court’s decision in 2016, the children had been out of

mother’s home for four and a half years. The court noted that the children love their

mother and are bonded to her.

       {¶33} Mother’s three oldest children had a tumultuous relationship with their

father, Y.P., Sr. During their early years living with mother and Y.P., Sr., the children

witnessed incidents of domestic violence and sexual assault.         Y.P., Sr., had been




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                   OHIO FIRST DISTRICT COURT OF APPEALS



incarcerated for much of his children’s lives, and had demonstrated no interest in his

children in recent years. The court noted that his children wanted nothing to do with

Y.P., Sr., and that they considered stepfather to be their “daddy.” Although mother’s

two youngest children had been removed from her care when they were two years old

and 11 months old, respectively, stepfather had visited with them and they had become

bonded to him.

         {¶34} The court noted that the children’s current foster mother has a very close

relationship with the children and that the children are bonded to her. At the time of

the court’s decision, D.P. had been in the foster mother’s care for four years, and the

other children had been in her care for at least two years. The court noted that the

children have thrived in her home because she and her husband have addressed their

many needs. The court noted that the foster mother and her husband are willing to

adopt the children if permanent custody was awarded to HCJFS.

         {¶35} In considering the wishes of the children, the court noted that the four

oldest children wanted to return to their mother and to stepfather. Although the

youngest was not sufficiently able to express his wishes, he clearly indicated that he felt

a part of the family with his father, siblings, and mother. The court further noted that

the children want to be adopted by their foster mother, “who they like and trust,” if they

cannot return to their mother and to stepfather.

         {¶36} The court considered the custodial history of the children, reiterating

that the children had been in foster care since 2011 when the allegations of sexual abuse

arose.    The court determined that the children no longer qualified for temporary

custody.

         {¶37} Given our determination that the evidence supported a finding that the

children should not be returned to their mother, and considering the factors of former




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                  OHIO FIRST DISTRICT COURT OF APPEALS



R.C. 2151.414(D)(1), the court’s conclusion that the best interest of the children would

be served by returning them to mother was against the weight of the evidence.


                                           Conclusion


       {¶38} Following our review of the record, we hold that the juvenile court’s

determination to deny permanent custody to HCJFS was contrary to the evidence. See

In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46.

Accordingly, we hold that the juvenile court erred by denying HCJFS’s motion for

permanent custody and by remanding custody to mother. We sustain the assignment

of error. Consequently, we reverse the judgment of the juvenile court and remand this

matter for the court to enter judgment in favor of HCJFS on its motion for permanent

custody.

                                                                   Judgment accordingly.


MOCK, P.J., and MILLER, J., concur.




Please note:

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




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