[Cite as In re N.H., 2017-Ohio-2946.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: N.H. - N.H. 2 ET AL.,                :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
                                            :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
                                            :       Case No. 17-CA-5
                                            :                17-CA-6
                                            :
                                            :       OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case Nos. 2015-AB-189
                                                    and 2015-AB-190


JUDGMENT:                                           Affirmed


DATE OF JUDGMENT:                                   May 19, 2017


APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant S.H.

R. KYLE WITT                                        JULIA TABOR
Prosecuting Attorney                                Law Offices of Jason M. Donnell, LLC
                                                    118 South Pearl Street
By: DAVID K. H. SILWANI                             Lancaster, Ohio 43130
Assistant Prosecuting Attorney
Fairfield County, Ohio                              For Mother
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130                               AJMERI HOQUE
                                                    YMF Inc.
For Guardian Ad Litem                               84 South 4th Street
                                                    Columbus, Ohio 43125
EDWARD ITAYIM
739 S. Third Street
Columbus, Ohio 43206
Fairfield County, Case No. 17-CA-5, 17-CA-6                                            2




Baldwin, J.

       {¶1}      Appellant S.H. appeals from the January 10, 2017 Judgment Entry of the

Fairfield County Court of Common Pleas, Juvenile Division, granting permanent custody

of his two children to Fairfield County Child Protective Services.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      N.H. (DOB 7/9/15) and N.H. (DOB 7/9/15), who are twins, are the biological

children of appellant S.H. On July 22, 2015, Fairfield County Child Protective Services

(FCCPS) filed complaints alleging that N.H. and N.H. were dependent children. On the

same day, the two children were placed in the temporary shelter custody of FCCPS. The

complaints were later dismissed without prejudice.

       {¶3}      On October 13, 2015, FCCPS filed complaints alleging that both children

were dependent children. Following a shelter hearing held the same day, the two children

were placed in the temporary custody of FCCPS. On November 19, 2015. N.H. and N.H.

were found to be dependent children and were placed in the temporary custody of

FCCPS.

       {¶4}      Thereafter, on June 13, 2016, FCCPS filed motions in both cases seeking

permanent custody of the children. An oral hearing on the motion commenced before a

Magistrate on October 10, 2016. While the children’s mother did not contest the motion,

appellant did.

       {¶5}      At the hearing, Dr. Mary Elizabeth Flum, an outpatient therapist with a PH.D.

in counseling education, testified that she had a chance to assess appellant in January

of 2016 and that appellant almost fell asleep during her evaluation. She testified that
Fairfield County, Case No. 17-CA-5, 17-CA-6                                       3


appellant discussed his use of marijuana which had developed into a daily habit and also

that appellant stated that, in approximately 2010, he had started using opiates and had

overdosed eight times.       Dr. Flum testified that appellant stated that he had been

diagnosed with bipolar disorder. Dr. Flum, following a psychological examination,

diagnosed appellant with bipolar I disorder, a personality disorder that caused appellant

to have disruptions in his relationships with others and issues with impulse control, and

chemical dependency based on his opioid use. She also diagnosed him with borderline

intellectual functioning. Dr. Flum testified that she recommended that appellant continue

his psychiatric consultation and continue with substance abuse treatment. Dr. Flum

testified that she wanted appellant to have his medications monitored so that his mood

swings and concerns with anxiety and depression would be controlled. Appellant also

was recommended by her to complete cognitive behavioral therapy and parenting

education. The following is an excerpt from her testimony at the hearing:

       {¶6}     Q:   From a hypothetical standpoint, let’s just say that [S.H.] has not

engaged in any of those recommendations, would that cause you concern about his ability

to parent?

       {¶7}     A: Again, it would be hard for me to say having not observed him around

his children.     But generally, broadly speaking, if you’re suffering from significant

behavioral health, mental health behaviors, and you’re not addressing those issues, then

it could be setting you up for difficulties in your relationship with others.

       {¶8}     Q: Okay, Including children?

       {¶9}     A: Yes, it could be.

       {¶10} Transcript at 188.
Fairfield County, Case No. 17-CA-5, 17-CA-6                                      4


        {¶11} Dr. Flum’s evaluation of appellant was admitted as an exhibit.

        {¶12} Stefanie Valdez, a caseworker with Franklin County Children’s Services

who had previously worked with Fairfield County Job and Family Services, testified that

she was assigned the case of N.H. and N.H. on August 14, 2015, a month after the two

were born, and remained the caseworker until May 27, 2016. She testified that the agency

became involved after the children’s mother posted on Facebook while the children were

in the hospital that she did not have items for the babies and the two parents were

behaving erratically. She also indicated that the agency had concerns that the parents

were substance abusers and were unable to meet the special needs of the twins, who

were premature. When asked about the case plan for appellant, she testified that he was

to complete an alcohol/drug assessment through the Recovery Center and follow through

with recommendations, engage in mental health counseling and follow recommendations,

complete a psychological evaluation and follow recommendations, and complete

parenting education. Valdez testified that housing was not a concern and that appellant

received a monthly disability check. According to Valdez, when the agency first received

the case, appellant already had a Subutex prescription. She testified that appellant was

to maintain his prescriptions and show them to the agency when requested to do so.

Valdez testified that appellant was assessed by the Recovery Center and started services

there. While Valdez was his caseworker, appellant was working on his alcohol/drug

treatment. Valdez testified that appellant tested positive for marijuana in September of

2015.

        {¶13} Joanne Butcher, the caseworker who took over for Valdez in June of 2016,

testified that since she had taken over, appellant had made little progress on his case
Fairfield County, Case No. 17-CA-5, 17-CA-6                                           5


plan with respect to drug and alcohol recovery issues. When she first started, appellant

was connected with the Recovery Center but wasn’t going. Butcher testified that appellant

did see a counselor at MidOhio. According to Butcher, appellant had completed the first

packet at MidOhio that is used for alcohol and drug education, but that there were several

packets. When asked if, with respect to counseling for drug and alcohol issues, appellant

had successfully completed that portion of his case plan, she testified that he had not.

Appellant had not shown proof of any prescriptions since August of 2016 although he was

required to do so and had switched from Subutex to Suboxone without telling her. Butcher

further testified that appellant had not complied with the recommendations from his

psychological examination and was not doing anything, as far as she was aware, for his

bipolar disorder.

       {¶14} While appellant was seeing someone from MidOhio and had been doing

better since July of 2016, Butcher testified that appellant had not made substantial

progress on his case plan with respect to mental health counseling. She further testified

that appellant was not receptive to parenting education and that appellant had not

complied with that aspect of his case plan.

       {¶15} Butcher testified that the agency had looked into other family members for

purposes of placement, but that none were suitable or interested. She testified that she

had monitored several visits between appellant and the twins and that during the visits,

appellant bickered with the children’s mother and seemed aggravated when one of the

babies was fussy. According to her, there was “not a lot of loving, tenderness, that kind

of stuff in their visits.” Transcript at 551. She also had an opportunity to observe the twins
Fairfield County, Case No. 17-CA-5, 17-CA-6                                           6


in their foster home. The following testimony was adduced when she was asked if there

was any difference in how the twins behaved in their foster home than with appellant:

       {¶16} A: There’s a difference. Foster mom is very laid back. They have lots of

things for the girls to do. They have sectioned off a large area of their room. They have

lots of books. And like appropriate kind of little toys that they’ve been given examples of

what would help with their physical development. So they can move around easily. And

the girls are very affectionate. She will sit on the floor with them, you know, interacts with

them more, I think. She’s just more at ease I think with them than [S.H.] is.

       {¶17} Transcript at 551-552.

       {¶18} Butcher further testified that the children recognized appellant when he

came in and interacted with him, but that they went to their foster mother if they fell or

bumped their heads. She believed that there was “somewhat” of bond between appellant

and the twins, but that there was not a strong bond. Transcript at 553. According to

Butcher, when she tried to talk to appellant about one of the children’s medical issues,

appellant did not want to hear about it.

       {¶19} Testimony also was adduced that appellant had been convicted of

falsification the previous month and was going to spend 20 days in jail. Butcher testified

that she had no idea until the hearing that appellant had new charges and was concerned

for the safety of the children because appellant was involved with someone who was

dealing drugs and was personally there. She indicated that she did not see enough

progress made to attempt reunification with the children and that the agency still had the

same concerns as it initially had. According to Butcher, the children needed a legally

secure, permanent placement and that the need was stronger due to medical needs that
Fairfield County, Case No. 17-CA-5, 17-CA-6                                          7


they had. She testified that they had delayed motor skills and a lot of medical issues due

to being premature and that they had numerous medical appointment. Butcher stated that

the agency believed that it was in the best interest of the children for permanent custody

to be granted to the agency.

          {¶20} At the hearing, Andrea Stedman, the visitation monitor since August of

2015, testified that appellant visited with his children consistently and was able to manage

them by himself. She testified that during visits, appellant directed the children’s mother

and called her names and made comments about her parenting. The two had used foul

language. Stedman testified that she canceled one visit in September of 2016 over fear

for the mother after observing an argument between appellant and the mother. Appellant

told her that some woman had accused him of punching the children’s mother in the

mouth, but that he told her that he had shoved a doughnut into her mouth and had not hit

her.

          {¶21} At the hearing, Edward Itayim, the Guardian Ad Litem, testified that he

recommended that the motion for permanent custody be granted.

          {¶22} The Magistrate, in lengthy and thorough Decision filed on October 28, 2016,

recommended that appellant’s parental rights be terminated and that both children be

placed in the permanent custody of FCCPS. Appellant filed objections to such decision.

Thereafter, the trial court, in a Judgment Entry filed on January 10, 2017, overruled

appellant’s objections and ordered that the children be placed in the permanent custody

of FCCPS.

          {¶23} Appellant now raises the following assignment of error on appeal1:



1   Appellant filed appeals with respect to both children.
Fairfield County, Case No. 17-CA-5, 17-CA-6                                          8


       {¶24} THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE

STATE’S     MOTION      FOR    PERMANENT         CUSTODY       WITHOUT       CLEAR       AND

CONVINCING EVIDENCE.

                                                 I

       {¶25} Appellant, in his sole assignment of error, argues that the trial court erred in

granting permanent custody of the two children to FCCPS. We disagree.

       {¶26} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing

evidence is that evidence “which will provide 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). “Where the degree of proof required to sustain an issue

must be clear and convincing, 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.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all

the essential elements of the case supports the trial court's judgment, an appellate court

must affirm the judgment and not substitute its judgment for that of the trial court. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶27} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'
Fairfield County, Case No. 17-CA-5, 17-CA-6                                           9

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159.

       {¶28} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency.

       {¶29} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply: (a) the child is not

abandoned or orphaned, 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; (b) the child is

abandoned; (c) the child is orphaned and there are no relatives of the child who are able

to take permanent custody; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending.

       {¶30} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, a trial court

will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

       {¶31} In the case sub judice, the trial court found that R.C. 2151.414(B)(1)(a)

applied. Pursuant to R.C. 2151.414(B)(1)(a), the trial court found the children could not
Fairfield County, Case No. 17-CA-5, 17-CA-6                                          10


be placed with either of the children's parents within a reasonable time or should not be

placed with the children's parents. In making this decision, the trial court must consider

the factors of R.C. 2151.414(E). The trial court specifically found that R.C.

2151.414(E)(1), (2), (4), (13), and (16) applied to appellant.

       {¶32} R.C. 2151.414 states, in relevant part, as follows:

       (E) In determining at a hearing held pursuant to division (A) of this section

       or for the purposes of division (A)(4) of section 2151.353 of the Revised

       Code whether a child cannot be placed with either parent within a

       reasonable period of time or should not be placed with the parents, the court

       shall consider all relevant evidence. If the court determines, by clear and

       convincing evidence, at a hearing held pursuant to division (A) of this

       section or for the purposes of division (A)(4) of section 2151.353 of the

       Revised Code that one or more of the following exist as to each of the child's

       parents, the court shall enter a finding that the child cannot be placed with

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

       parent:

       (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
Fairfield County, Case No. 17-CA-5, 17-CA-6                                             11


      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 mental illness, chronic emotional illness, intellectual disability,

      physical disability, or 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 or for the

      purposes of division (A)(4) of section 2151.353 of the Revised Code;…

      (4) The parent has demonstrated a lack of commitment toward the child by

      failing to regularly support, visit, or communicate with the child when able

      to do so, or by other actions showing an unwillingness to provide an

      adequate permanent home for the child;...

      (13) The parent is repeatedly incarcerated, and the repeated incarceration

      prevents the parent from providing care for the child….

      (14) The parent for any reason is

      (16) Any other factor the court considers relevant.

      {¶33} In the case sub judice, there was testimony that appellant had not

substantially complied with his case plan. Joanne Butcher testified that, with respect to

alcohol and drug counseling, appellant had not successfully completed that portion of his

plan and had completed only one out of several packets in relation to alcohol/drug

counseling. While appellant testified at the hearing that he had consistently been going
Fairfield County, Case No. 17-CA-5, 17-CA-6                                        12


to NA and AA meetings for two years, he did not know the first step in the recovery

process and did not have a sponsor, although he indicated that he needed to get one.

When asked at the hearing how long it was going to take him to taper off of the Suboxone,

appellant testified that even if his doctor disagreed, he was going to lower how much he

was taking. Butcher further testified that appellant had not been complying with the

recommendations of the psychological evaluation and was not doing anything for his

bipolar disorder. She further voiced concerns over the fact that appellant had never given

her a “straight answer” about which medications he took and had not shown her any

prescriptions for his bipolar disorder. Transcript at 547. Moreover, Stefanie Valdez,

appellant’s prior caseworker, testified that appellant did not comply with the

recommendations from the psychological evaluation since he did not engage in any group

therapy as was recommended by the psychologist.

      {¶34} Butcher also testified that while appellant had been doing better with mental

health counseling since July of 2016, he had not made substantial progress and that it

was the opinion of the agency that he had not complied with that aspect of his case plan.

While appellant sought mental health counseling from MidOhio, he attended

approximately twelve appointments since December of 2015 and had missed

approximately five to seven appointments since then.

      {¶35} According to Butcher, appellant also had not complied with that portion of

his case plan requiring parenting education. Andrea Stedman testified that she terminated

parenting sessions with appellant after he failed to attend them consistently and that

appellant had not had any formal parenting education from her since May of 2016. She

further testified that appellant did not implement what he had learned.
Fairfield County, Case No. 17-CA-5, 17-CA-6                                         13


       {¶36} The Guardian Ad Litem, in his October 3, 2016 report, indicated that it was

his opinion that appellant and the children’s mother had not made significant enough

progress with their mental health to reunify with the children and that he did not believe

that the issue could be remedied within a reasonable amount of time.

       {¶37} Based on the foregoing, we find that there was clear and convincing

evidence that appellant had failed to substantially comply with his case plan.

       {¶38} The trial court further found that R.C. 2151.414(E)(2) applied. As is

discussed above, there was testimony that appellant failed to complete the drug and

alcohol portions of his case plan. Dr. Flum testified at the hearing that appellant told her

that he had overdosed 8 times and had used heroin. Appellant testified that he had been

attending AA and NA meetings consistently for two years, but did not have a sponsor and

was unable to state what the first step of recovery was. As part of his assessment at the

Recovery Center, appellant was to engage in 12 step meetings. There was testimony

that the position of the agency was that appellant had not successfully completed

counseling for drug and alcohol issues.      Kerith Palletti, a counselor at the Recovery

Center, testified that appellant did not successfully complete counseling and was

discharged in July of 2016 for attendance issues.

       {¶39} Furthermore, with respect to R.C. 2151.414(E)(13), there was testimony at

the hearing that appellant had three domestic violence convictions and convictions for

receiving stolen property, theft, criminal damaging, assault, attempted breaking and

entering and driving under the influence. Appellant testified that he spent thirteen months

in prison once and was in jail “too many times to count with both hands.” Transcript at

303. Appellant also pled guilty to falsification in September of 2016 and was sentenced
Fairfield County, Case No. 17-CA-5, 17-CA-6                                            14


to 180 days in jail with all but twenty days suspended. The charge stemmed from a drug

deal involving appellant’s friends.

       {¶38} Based on the foregoing, we find that there was clear and convincing

evidence supporting the trial court’s finding that appellant had continuously and

repeatedly failed to substantially remedy the conditions causing the children to be placed

outside the home and that the children could not be placed with either parent within a

reasonable time or should not be placed with either parent. As noted by the Magistrate,

appellant “has not complied with the case plan, has not followed the recommendations of

his psychological evaluation, has not adequately complied with mental health treatment

recommendations, has not adequately complied with recommended drug and alcohol

treatment, has not participated in parenting education, and has not consistently attended

the children’s medical appointments.”

       {¶39} Appellant also challenges the trial court’s finding that it was in the best

interest of the children for permanent custody to be granted to the agency. R.C.

2151.414(D) states as follows:

       (1) In determining the best interest of a child at a hearing held pursuant to division

          (A) of this section or for the purposes of division (A)(4) or (5) of section

          2151.353 or division (C) of section 2151.415 of the Revised Code, the court

          shall consider all relevant factors, including, but not limited to, the following:

       (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;
Fairfield County, Case No. 17-CA-5, 17-CA-6                                          15


       (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, including whether the child has been in the

           temporary custody of one or more public children services agencies or private

           child placing agencies for twelve or more months of a consecutive twenty-two-

           month period, or the child has been in the temporary custody of one or more

           public children services agencies or private child placing agencies for twelve

           or more months of a consecutive twenty-two-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;

       (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.

      {¶40} There was testimony at the hearing that while the children, who are too

young to express their wishes and who were placed with the agency shortly after their

birth, were somewhat bonded to appellant, they were more bonded to their foster mother

and looked to her when they needed care or comfort. There was testimony that during

visitation with the children, appellant and the children’s mother spent more time looking

for bottles and with “housekeeping stuff” than interacting with the children. Transcript at

553. The Guardian Ad Litem, in his October, 2016 report, noted that the children, who

had physical developmental delays, were very attached to their foster parents who were
Fairfield County, Case No. 17-CA-5, 17-CA-6                                        16


looking to adopt them and that while appellant’s grandmother was a potential placement

option, she had serious health concerns and would not be an appropriate caregiver. The

Guardian Ad Litem indicted that permanent custody was in the children’s best interest.

       {¶41} There also was testimony that the relationship between appellant and the

children’s mother was tumultuous and that the two constantly bickered during visits with

children. According to Valdez, appellant and the mother tattled on each other. There

further was testimony that appellant belittled the mother and called her names such as

“idiot”, “dweeb” “dork” and “slow” in front of the children. While appellant was requested

by the agency to attend the children’s medical appointments, he did not consistently do

so and during the duration of the case, attended 8 out of 25 appointments.

       {¶42} Moreover, at the hearing, the children’s current caseworker testified as to

the children’s need for a legally secure, permanent placement. The following is an excerpt

from her testimony:

       {¶43} Q: All right. Now, do you think that NH and NH have a stronger need for

legally secure, permanent placement due to their medical issues?

       {¶44} A: Yes.

       {¶45} Q: And why is that?

       {¶46} A:   Well, because they’re going to need extra attention because of those

medical needs. It’s extra work. There’s lots of appointments. There’s lots of things that

need to be done special for them. So, you know, it’s much more imperative in order for

them to grow to be healthy adults, they are going to need all this extra stuff.

       {¶47} Q: And what is the Agency’s position as to what’s in the best interest of the

children?
Fairfield County, Case No. 17-CA-5, 17-CA-6                                        17


      {¶48} A: The Agency position is in the best interest of the girls, for the Agency to

have permanent custody.

      {¶49} Transcript at 569- 570.

      {¶50} Based on the foregoing, we find that there was clear and convincing

evidence that it was in the best interest of the children for permanent custody to be

granted to the agency.

      {¶51} Appellant’s sole assignment of error is, therefore, overruled.
Fairfield County, Case No. 17-CA-5, 17-CA-6                                        18


      {¶52} Accordingly, the judgment of the Fairfield County Court of Common Pleas,

Juvenile Division, granting permanent custody of his two children to Fairfield County Child

Protective Services is affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
