[Cite as In re D.F., 2012-Ohio-3063.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY




IN THE MATTER OF:

        D.F.,                                 CASE NO. 16-11-14

ADJUDICATED NEGLECTED AND
DEPENDENT CHILD.                              OPINION

[DARRELL D. FRANCIS - APPELLANT].




IN THE MATTER OF:

        H. F.,                                CASE NO. 16-11-15

ADJUDICATED NEGLECTED AND
DEPENDENT CHILD.                              OPINION

[DARRELL D. FRANCIS - APPELLANT].




IN THE MATTER OF:

        S. F.,                                CASE NO. 16-11-16

ADJUDICATED NEGLECTED AND
DEPENDENT CHILD.                              OPINION

[DARRELL D. FRANCIS - APPELLANT].
Case Nos. 16-11-14, 16-11-15, 16-11-16




            Appeals from Wyandot County Common Pleas Court
                           Juvenile Division

              Trial Court Nos. C 2102014, C2102015, C2102016

                              Judgments Affirmed

                        Date of Decision: July 2, 2012



APPEARANCES:

      Kelle M. Saull for Appellant

      Douglas D. Rowland for Appellee




WILLAMOWSKI, J.

      {¶1} Father-appellant Darrell Francis (“Francis”) files this appeal from the

judgment of the Court of Common Pleas of Wyandot County, Juvenile Division

granting permanent custody of his children to the Wyandot County Department of

Job and Family Services (“the Agency”). For the reasons set forth below, the

judgment is affirmed.

      {¶2} On September 7, 2010, the Agency filed a complaint alleging that

D.F., J.F. and S.F. were neglected and dependent based upon a domestic violence

incident and the condition of the home. Francis had custody of the children at the


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Case Nos. 16-11-14, 16-11-15, 16-11-16


time, though the mother did not reside with them.1                     The trial court granted

temporary custody to the Agency on September 9, 2010. An adjudicatory hearing

was held and on October 4, 2010, the trial court found the children to be

dependent, a finding with which Francis agreed.                   The claim of neglect was

dismissed by the Agency.2 The disposition hearing was held on November 1,

2010. The children were placed in the temporary custody of the Agency and

Francis was ordered to comply with the case plan.

        {¶3} On May 25, 2011, the Agency filed a motion for permanent custody

alleging that the children were abandoned and that it was in their best interest for

the Agency to take permanent custody. A hearing was held on the motion on

October 24, 2011. The children’s mother surrendered her parental rights, but

Francis did not. On November 16, 2011, the trial court granted the Agency’s

motion and terminated the parental rights of Francis. Francis appeals from this

judgment and raises the following assignment of error.

        The trial court erred when finding it was in the best interest of
        the minor children to grant [the Agency] permanent custody
        because said finding was contrary to law and against the
        manifest weight of the evidence.




1
 Francis and the mother were never married and no longer had a relationship.
2
 The complaint had two counts: Count 1 was neglect, Count 2 was dependency. The trial court dismissed
Count 1 as to Francis and found the children dependent. The children were found to be neglected and
dependent as to the mother.

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Case Nos. 16-11-14, 16-11-15, 16-11-16


       {¶4} The sole assignment of error is that the trial court’s judgment was not

in the best interest of the children. The termination of parental rights is governed

by R.C. 2151.414.

       (B)(1) Except as provided in division (B)(2) of this section, the
       court may grant permanent custody of a child to a movant if the
       court determines at the hearing held pursuant to division (A) of
       this section, by clear and convincing evidence, that it is in the
       best interest of the child to grant permanent custody of the child
       to the agency that filed the motion for permanent custody and
       that any of the following apply:

       ***

       (b) The child is abandoned.

       ***

       (D)(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;

       (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

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Case Nos. 16-11-14, 16-11-15, 16-11-16


      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.

      For the purposes of division (D)(1) of this section, a child shall be
      considered to have entered the temporary custody of an agency
      on the earlier of the date the child is adjudicated pursuant to
      section 2151.28 of the Revised Code or the date that is sixty days
      after the removal of the child from home.

      ***

      (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

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Case Nos. 16-11-14, 16-11-15, 16-11-16


      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.

      ***

      (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;

      ***

      (10) The parent has abandoned 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 unwilling to provide food,
      clothing, shelter, and other basic necessities for the child or to
      prevent the child from suffering physical, emotional, or sexual
      abuse or physical, emotional, or mental neglect.

      ***

      (16) Any other factor the court considers relevant.

In this case, the trial court found that Francis had abandoned his child. “[A] child

shall be presumed abandoned when the parents of the child have failed to visit or

maintain contact with the child for more than ninety days, regardless of whether

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Case Nos. 16-11-14, 16-11-15, 16-11-16


the parents resume contact with the child after that period of ninety days.” R.C.

2151.011(C).

       {¶5} A review of the record shows that Francis had no contact with his

children from December 16, 2010, until the filing of the motion for permanent

custody on May 25, 2011. This is 160 days without contact, which exceeds the

ninety days required for a legal finding of abandonment. Francis admits that his

behavior met the legal definition of abandonment. Instead, he argues that the

termination of the parental rights was not in the children’s best interests. Having

found that the children were legally abandoned, the court then needed to address

whether it was in the best interests of the children to terminate Francis’ parental

rights. In reaching its determination, the trial court made the following findings.

       The children have been abandoned by their parents as defined in
       Section2151.011(C). Father has not visited with his children for
       more than 90 days and mother has admitted to that same
       allegation. Evidence also shows neither parent has completed
       their case plan goals. Those goals were put in place to allow the
       children to return to one or both parents and have some stability
       and parental confidence. Neither parent has communicated
       with the Department to check on their children’s welfare again
       for substantial periods of time. None of the children can be
       placed with either parent within a reasonable amount of time
       nor should they be returned. Mother and father have had
       multiple residences showing a lack of stability. Father said he
       could care for the children now but says that while being
       shackled and currently incarcerated. Father has lived in a
       shelter as well as jail. Neither parent has displayed the
       competence these children need.



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Case Nos. 16-11-14, 16-11-15, 16-11-16


      The Court has no confidence these children could be returned
      within a reasonable time, given the evidence today and the
      history of both parents; their lack of communication and contact
      with their children; lack of stable housing; and legal problems.

      The Court finds the children interact well with each other.
      There was no evidence showing how the children interacted with
      either parent within numerous months. The children deserve a
      safe, legal and secure home with consistency and love from their
      caregivers. The children are doing well now and thriving
      although their past problems had to be addressed because of not
      being addressed when they were with their parents, i.e. delays in
      development, unimaginable dental problems and the pain that
      must have come with that to a child who needed a root canal in
      every tooth in his mouth, and the suffering that must have
      caused.

Nov. 16, 2011 Entry, 5.

      {¶6} Francis testified that he had stabilized his life and had a place to live.

However, he was in Franklin County Jail for a community control violation at the

time of the hearing. Tr. 9. He was on community control for a theft charge which

occurred earlier in 2011. Tr. 9. His housing was with his new girlfriend that he

had been seeing for almost four months and he had resided there for

approximately five weeks prior to reporting to jail. Tr. 9-10. Before he moved in

with his girlfriend, Francis was living in a homeless shelter in Ohio. Tr. 11.

Francis has no employment as he is “totally disabled” and receives approximately

$620 a month in income. Tr. 13-14. He admitted that he had had no contact with

his children since December 16, 2010, even after he received the motion for

permanent custody. Tr. 14. The case plan required Francis to receive a substance

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Case Nos. 16-11-14, 16-11-15, 16-11-16


abuse assessment, which he did not do. Tr. 18. Francis admitted that he left

Wyandot County because there were outstanding arrest warrants for him in

Wyandot County. Tr. 21. Since July of 2010, Francis had been incarcerated four

different times. Tr. 23.

       {¶7} The case worker for the children was April Allison (“Allison”)

Allison testified that the case plan required Francis to seek mental health,

substance abuse, and domestic violence counseling. Tr. 27. He was also to be

assessed for other needed services upon release from jail. Tr. 27. Francis was

required to comply with all the recommendations of the service providers and to

establish a safe, stable living environment for the children. Tr. 28. Finally,

Francis was required to complete parent education. Tr. 28. Allison testified that

Francis had not met any of these goals. Tr. 28. She admitted that at the beginning

of the case, Francis was cooperative and a good father. Tr. 37. Francis had

completed some of the parenting classes, but was still a couple classes shy of

completing the goal. Tr. 38. She also admitted that Francis had completed a

mental health assessment, but never followed through with the recommendations.

Tr. 38. The assessment recommended individual counseling, which Francis did

not attend.   Tr. 40.      Of the twelve scheduled visits prior to Francis leaving

Wyandot County, he attended nine. Tr. 42. Allison also testified that Francis had

prevented them from aiding him by moving from the area without telling them


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Case Nos. 16-11-14, 16-11-15, 16-11-16


where he was going and without continuing contact with the Agency. Tr. 47. At

no time did Francis contact the Agency and ask for his new home to be evaluated.

Tr. 54. Allison had no contact of any kind with Francis since December 16, 2010.

Tr. 56

         {¶8} Given the testimony in this case, the trial court could reasonably

determine by clear and convincing evidence that the Agency had proven that

Francis had not completed or even made substantial progress on the case plan.

R.C. 2151.414(E)(1). At the time of the hearing, Francis had not communicated

with the children for 324 days, which shows a lack of commitment and

communication with the children. Francis also had not contacted the Agency to

even inquire about the children in that time. R.C. 2151.414(E)(4). By failing to

contact the children, Francis had abandoned the children. R.C. 2151.414(E)(10).

Since these factors can be found, the trial court correctly determined that the

children could not be placed with Francis within a reasonable time. The trial court

also considered the factors set forth in R.C. 2151.414(D) to determine the best

interests of the children. The trial court considered the relationship among the

children, the parents, and the foster parents. It considered Francis’ history of

incarceration and his lack of communication with the children. The Guardian Ad

Litem testified that although Francis appears to love his children, it would be in

the best interest of the children if his parental rights were terminated. Given all of


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Case Nos. 16-11-14, 16-11-15, 16-11-16


the evidence, the trial court did not err in finding that a termination of Francis’

parental rights was in the best interest of the children. The assignment of error is

overruled.

       {¶9} The judgments of the Court of Common Pleas of Wyandot County,

Juvenile Division are affirmed.

                                                              Judgments Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




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