       [Cite as In re P/W Children, 2020-Ohio-3513.]

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




IN RE: P/W CHILDREN.                            :      APPEAL NO. C-200103
                                                       TRIAL NO. F15-2259
                                                :

                                                :         O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 30, 2020



Jon R. Sinclair, for Appellant Father,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Roxanna Mehdi,
Assistant Public Defender, for Appellee Guardian ad Litem.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}   Father appeals the Hamilton County Juvenile Court’s judgment

granting permanent custody of his three children to the Hamilton County

Department of Job and Family Services (“HCJFS”). The children’s guardian ad litem

and HCJFS ask this court to affirm the juvenile court’s judgment.

                                  I. Background

       {¶2}   In September 2015, HCJFS filed a motion for interim custody of the

children, A.P., D.P., and C.P., who ranged in age from six months to two and a half

years old, because of ongoing domestic violence between father and mother. HCJFS

also filed a complaint alleging that the children were dependent, neglected, and

abused. The juvenile court magistrate issued an order allowing the children to

remain with mother in a domestic-violence shelter under the protective supervision

of HCJFS. As part of the protective-supervision order, father was to have no contact

with mother or the children until he made an appearance in the proceedings.

Although father was notified of the adjudicatory and dispositional hearings, he did

not appear for them. In December 2015, the magistrate adjudicated the children

dependent and ordered that father have no contact with mother or the children “until

he appears before the court so safe visitation can be arranged for his children.”

       {¶3}   On March 3, 2016, HCJFS filed for interim custody of the children,

and filed a second complaint alleging that the children were dependent, neglected,

and abused. In support of its motion for custody, the agency filed an affidavit

alleging that on February 26, 2016, father violated the juvenile court’s December

2015 no-contact order when he took D.P. with him to pick up another of mother’s

children, M.W., from school. The affidavit also alleged that mother, with the help of

YWCA staff, obtained a separate civil protection order (“CPO”) against father on

February 29, 2016, following allegations of domestic violence.



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        {¶4}    At a hearing held on March 3, 2016, the magistrate granted interim

custody of the children to HCJFS. The magistrate ordered that mother would be

allowed visitation with the children at a secure location, and that “[father] shall have

no visits as there is currently a CPO in place effective until 2-28-2017.” We note that

the record before us does not include a copy of the CPO.1

        {¶5}    Father appeared in court on March 11, 2016, and agreed to the order of

interim custody. After father left the hearing, he followed mother to her vehicle and

threatened her. Father was arrested and charged with violating the CPO.

        {¶6}    On June 1, 2016, father appeared in court with counsel and agreed to

an order placing the children in the temporary custody of HCJFS. The magistrate

adjudicated the children dependent for the second time. The magistrate noted in his

adjudication order that mother was in favor of the CPO being modified to allow

father to have contact with the children and that father would have supervised

visitation with his children once the CPO was modified.

        {¶7}    The magistrate conducted a review hearing on August 2, 2016.

Father’s counsel appeared, but father but did not appear despite having been

notified.   The magistrate noted that father had not altered the CPO preventing

visitation to allow him visitation.

        {¶8}    On August 31, 2016, the magistrate issued an order where he reiterated

that he had “attempted to assist the father in identifying his remedies before the

Domestic Relations Court that issued a protection order on a claim of domestic

violence made by the mother.”

        {¶9}    In February 2017, father was notified of an annual review hearing

before the magistrate, but failed to appear. The magistrate granted a motion by



1 We assume for purposes of this opinion that the CPO applied not only to mother but to the
children because it is clear from the record that the magistrate and the trial court assumed that it
did.


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HCJFS to extend temporary custody until September 2017.                    In addition, the

magistrate allowed father’s appointed counsel to withdraw “due to the inability to

communicate with [father].”

          {¶10} In August 2017, the magistrate granted a motion by HCJFS to extend
temporary custody until March 2018.

          {¶11} In October 2017, father appeared at a hearing before the magistrate.
The matter was continued until January 2018. On January 3, 2018, father failed to

appear at a hearing before the magistrate, despite having been notified.               The

magistrate noted that HCJFS had filed a motion to modify temporary custody to

permanent custody. The matter was continued to March 2018.

          {¶12} In March 2018, father again failed to appear at a hearing before the
magistrate, despite having been notified. The matter was continued to May 2018.

          {¶13} On May 22, 2018, father again failed to appear at a hearing before the
magistrate, despite having been notified. HCJFS withdrew its motion for permanent

custody. The magistrate terminated temporary custody and remanded custody of the

children to mother under the protective supervision of HCJFS. In July 2018, the

magistrate terminated the order of protective supervision.

          {¶14} In January 2019, upon learning that mother had left her children with
others because she could no longer care for them, HCJFS filed a complaint for

permanent custody of the children.2 The magistrate granted interim custody of the

children to HCJFS.

          {¶15} On February 13, 2019, father appeared at a pretrial hearing and
requested counsel. The matter was continued to February 27, but father did not

appear at the hearing and counsel did not appear on his behalf.




2   In February and July 2019, HCJFS filed amended permanent-custody complaints.


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       {¶16} Father appeared at a hearing in April 2019 and again requested
counsel. On May 1, counsel was appointed, and father appeared with counsel at a

May 19 hearing.

       {¶17} In August 2019, the children were adjudicated dependent and
neglected. Over two dates in September and October 2019, the magistrate conducted

a permanent-custody trial in which father participated.      The magistrate heard

testimony from an HCJFS caseworker, A.P.’s current foster parent, A.P.’s former

foster parent, and from father. Mother’s affidavit, in which she voluntarily and

permanently surrendered her parental rights and requested that HCJFS be granted

permanent custody of her children, was introduced into evidence.

       {¶18} A.P.’s former foster parent, D.C., testified that she had fostered A.P.
and her half-sister M.W., from March 2016 through May 2018, and her other half-

sister, S.W., from her birth in February 2017 through May 2018. If HCJFS was

granted permanent custody and the opportunity was afforded to her, D.C. wanted to

adopt all three girls.

       {¶19} A.P.’s current foster parent testified that A.P., M.W., and S.W., were
placed in his home in May 2019, and that the three girls were very close and

“inseparable.” In June 2019, A.P.’s brothers, C.P. and D.P., were also placed in his

home. By August 2019, however, C.P. and D.P. were removed from his home and

placed together in another home after it was discovered that the two of them had

engaged in sexualized behavior with A.P. and S.W.

       {¶20} The caseworker testified that she became involved with the family in
March 2019, and that her first contact with father occurred at a May 2019 court

hearing. She explained to father what he would need to do to participate in services

to work toward reunification, but alerted him that the agency had filed for

permanent custody in January.      Father participated in a diagnostic assessment,

which did not make any treatment recommendations. Father was told he would


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                     OHIO FIRST DISTRICT COURT OF APPEALS



need to go to parenting classes, to maintain stable housing and income, and to

consistently visit with the children. Visitation became available for father in August

2019. The caseworker testified that prior to that time, “the agency was unaware if an

active [CPO] was set in place. So the agency was not sure if the agency could provide

visitation until it was established. And in the beginning of August 2019 I started

providing visitation for him.”

       {¶21} The caseworker testified that when father’s visitation began, he
attended four out of six scheduled visits. She reported that C.P. and D.P. did not

really know father or have a bond with him because they had not seen him for four

years, and that four-year-old A.P. did not know him at all.

       {¶22} The caseworker further testified that father was unemployed and that
he lived in a home with three of his other children, and that father would need to

obtain other housing to accommodate the addition of C.P., D.P., and A.P. She

testified that father attended three out of five parenting appointments.           The

caseworker testified that she was concerned by father’s minimization of the domestic

violence between himself and mother, and she was concerned by father’s failure to

express interest in becoming involved in the children’s ongoing therapeutic services.

       {¶23} Father testified that because of the CPO, he had no contact with his
children until August 2019 and that he had been told “ever since 2015” he could not

see them until 2021 or 2022. He acknowledged that he had been convicted of

violating the CPO in March 2016. When asked what had occurred to make him “look

into the protective order situation,” father replied that mother “went down there * * *

[to] get it dropped herself.” Father was asked when mother had gotten the CPO

dropped, and he replied, “Like last year.” As discussed below, there is also evidence

in the record, although not part of the trial testimony, that father filed a motion to

modify the CPO, but failed to appear at the hearing or otherwise follow through.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} Father also testified that he was looking for a job and that he would be
able to obtain housing for all six of his children. He said that he was not concerned

that C.P. and D.P. would engage in sexualized behavior with A.P. in his home if the

three were placed with him because the behavior had “never happened before.”

                                II. Legal Analysis

       {¶25} Father raises a single assignment of error, arguing that the juvenile
court’s judgment granting permanent custody was contrary to the weight of the

evidence and was based upon insufficient evidence.

       {¶26} Parental termination cases have been likened to the family-law
equivalent of the death penalty in a criminal case. In re R.K., 152 Ohio St.3d 316,

2018-Ohio-23, 95 N.E.3d 394, ¶ 1. Consequently, “it is critical that the rights of a

parent who faces the permanent termination of parental rights are appropriately

protected.”   Id.   Therefore, “the parents, the children, and society should have

confidence in the fairness of the proceedings and in the courts’ decisions.” In re P,

1st Dist. Hamilton No. C-100309, 2019-Ohio-3637, ¶ 10. And the courts should

“attempt to thoroughly and correctly evaluate each relevant factor as required by the

permanent-custody statute.” Id.

       {¶27} A juvenile court’s determination on a motion for permanent custody
must be supported by clear and convincing evidence. In re W Children, 1st Dist.

Hamilton No. C-180620, 2019-Ohio-690, ¶ 34. Clear and convincing evidence is

evidence sufficient to “produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538,

2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469,

120 N.E.2d 118 (1954), paragraph three of the syllabus. 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




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                      OHIO FIRST DISTRICT COURT OF APPEALS



clear-and-convincing standard. In re W Children at ¶ 34. In reviewing a challenge to

the weight of the evidence, we review the record to determine whether the trial court

lost its way and created such a manifest miscarriage of justice in resolving conflicts in

the evidence that its judgment must be reversed. In re J.W. and H.W., 1st Dist.

Hamilton No. C-190189, 2019-Ohio-2730, ¶ 13.

                             A. Permanent Custody

        {¶28} A public children services agency may obtain permanent custody of a
child in one of two ways: (1) the agency may first obtain temporary custody of the

child and then file a motion for permanent custody under R.C. 2151.413, or (2) the

agency may request permanent custody as part of its original abuse, neglect, or

dependency complaint under R.C. 2151.27(C). In re R.B., 1st Dist. Hamilton Nos. C-

190319 and C-190331, 2019-Ohio-3469, ¶ 10.

        {¶29} The juvenile court may grant permanent custody of a child to an
agency that filed an R.C. 2151.413 motion to modify temporary custody to permanent

custody if the court determines by clear and convincing evidence (1) that one of the

factors in R.C. 2151.414(B)(1)(a) through (e) applies, and (2) that it is in the best

interest of the child based on the factors enumerated in R.C. 2151.414(D)(1). See R.C.

2151.414(B)(1); In re T/R/E/M, 1st Dist. Hamilton No. C-180703, 2019-Ohio-1427, ¶

12. Before the juvenile court grants permanent custody as an original disposition to

an agency that filed a motion under R.C. 2151.27(C), the juvenile court must

determine (1) that the child cannot be placed with either parent within a reasonable

time or should not be placed with the parent, using the factors set forth in R.C.

2151.414(E), and (2) that permanent custody is in the best interest of the child based

on the factors set forth in R.C. 2151.414(D)(1). See R.C. 2151.353(A)(4); In re R.B. at

¶ 10.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



              i. Cannot or Should Not Be Placed with a Parent

        {¶30} In this case, HCJFS ultimately requested permanent custody as an
original disposition. See R.C. 2151.27(C) and 2151.353(A)(4); In re Z.W., 1st Dist.

Hamilton No. C-200061, 2020-Ohio-3100, ¶ 8.                     The magistrate applied the

framework set forth in R.C. 2151.353(A)(4) for evaluating permanent custody as an

original disposition pursuant to HCJFS’s request under R.C. 2151.27(C), and

determined in accordance with R.C. 2151.414(E) that the children cannot and should

not be placed with either parent. The magistrate further determined in accordance

with R.C. 2151.414(D)(1) that permanent custody is in the children’s best interest.

See R.C. 2151.353(A)(4). In adopting the magistrate’s decision, the juvenile court

found, as did the magistrate, that “[t]he parent has abandoned the child.”3 R.C.

2151.414(E)(10).

        {¶31} A child is presumed to be 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 the parents resume contact with the child after that period of

ninety days.” See R.C. 2151.011(C). The court found that father had abandoned his

children because he had no contact with them between 2015 and August 2019 and

that he failed to rebut this presumption.

        {¶32} In the magistrate’s decision, which was adopted by the juvenile court,
the magistrate noted that father presented no evidence that he had made any

attempts to alter the CPO between its issuance in 2016 and August 2019, when he

claimed the CPO had been lifted.            The magistrate gave little weight to father’s

testimony that he did not believe there was anything he could have done to alter or


3In its dispositional entry, the juvenile court noted that HCJFS sought permanent custody as an
original disposition, but proceeded to consider the factors under R.C. 2151.414(B)(1) as if HCJFS
had moved to modify temporary custody to permanent custody. Although the court did not
explicitly state that the children cannot and should not be placed with father, the court’s finding
of a single factor in R.C. 2151.414(E) supported such a determination, and the court adopted the
magistrate’s decision wherein the determination was explicitly made.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



challenge the CPO to allow him to see his children. The magistrate noted that father

was present at the June 1, 2016 adjudication hearing where “this court did all it could

do to give [father] direction as to the modification of the order so that it only applied

to [protect mother].” The magistrate noted that he had written in the June 1, 2016

adjudication order:

       The plan is for [father] to have supervised visitation with his children

       at the Family Nurturing Center once the civil protection order issued

       by the Court of Domestic Relations modifies the current order

       restricting such contact. It should be noted the mother is in favor of

       that restriction being lifted, and, at the time the order was issued[,] the

       children were in a foster care setting and not in the care of [mother],

       the petitioner therein.

Considering the evidence, the magistrate found that father failed to rebut the

presumption of abandonment.

       {¶33} Father argues that the court’s finding that he abandoned his children
was not supported by clear and convincing evidence. He does not dispute the court’s

finding that he had not seen his children for nearly four years, which sufficiently

triggered the presumption of abandonment under R.C. 2151.011(C). However, he

argues that he successfully rebutted the presumption. He asserts that “[t]here is not

clear and convincing evidence in the record that [he] was given direction or legal

counsel on how to modify the restraining order nor evidence that he was aware the

law permitted such attempt to modify.” As discussed below, there is evidence in the

record that contradicts father’s claim in this regard.

       {¶34} Father relies on In re Custody of C.E., a Second District case that held
that “abandonment, as used in Chapter 2151, requires proof of intent to relinquish

parental rights of custody permanently, not just temporarily.” In re Custody of C.E.,

2d Dist. Champaign No. 2005-CA-11, 2005-Ohio-5913, ¶ 2. In that case, the court


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                     OHIO FIRST DISTRICT COURT OF APPEALS



affirmed the trial court’s finding that a mother had successfully rebutted the

presumption of abandonment that arose from her four-month absence from her

children, where she “presented evidence that she did not, in fact, intend to relinquish

permanently her custodial rights, but absented herself for a period of time in order to

avoid a substantial possibility that her whereabouts might be communicated to a

physically abusive estranged spouse.” Id.

       {¶35} Unlike the mother in In re Custody of C.E., who presented evidence
explaining her four-month absence, father presented no evidence explaining any

efforts he made in nearly four years to have the CPO modified so that he could see his

children even though he was aware that mother, the petitioner for the CPO, was in

favor of having the order modified so as not to include their children and that the

juvenile court would allow him supervised visitation with the children as soon as the

CPO was so modified.

       {¶36} We note that the Eighth District recently held that a juvenile court
erred by finding under R.C. 2151.414(E)(10) that a mother abandoned her child for

two years while she was in prison, where the evidence established that she had to

abide by a no-contact order that was in place due to her criminal convictions. See In

re G.A., 8th Dist. Cuyahoga No. 108932, 2020-Ohio-2949, ¶ 72. However, this case

is distinguishable because father was not incarcerated and, as we discussed, he had

known for nearly four years that mother agreed that the children should not be

included in the CPO. And yet according to the evidence presented at trial, he did

nothing to amend the CPO.

       {¶37} Although father claimed that the CPO prevented him from seeing his
children for nearly four years, the magistrate did not find his explanation convincing.

Even though father had known for years that mother agreed that the children should

not be included in the CPO, father presented no evidence that he made any effort to

have the CPO so limited. Thus, father did not successfully rebut the presumption of


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                       OHIO FIRST DISTRICT COURT OF APPEALS



abandonment set forth in R.C. 2151.011(C). We also note that, while there was no

such testimony before the magistrate, there was indication in a 2017 HCJFS progress

report that father had filed a motion to modify the CPO and that the motion was

denied when he failed to appear at a hearing set on his motion. If true, this further

bolsters the court’s conclusion that father abandoned the children. The filing of a

motion to modify would indicate that father did know what he had to do, yet failed to

follow through or make any further attempt to see his children within an almost

four-year period.      Therefore, we hold that the court’s finding under R.C.

2151.414(E)(10) that father abandoned his children, and that, therefore, the children

could not or should not be placed with either parent, was supported by clear and

convincing evidence.

                        ii. Best Interest of the Children

       {¶38} Father argues that the court’s best-interest determination was against
the manifest weight of the evidence. He asserts that the children’s best interest

would be served by extending temporary custody to HCJFS for a period of time so

that he can pursue reunification with them.         However, temporary custody had

terminated in May 2018, and HCJFS proceeded in January 2019 with a request for

permanent custody as an initial disposition. Thus, an extension of the temporary-

custody order was not an option for the court.

       {¶39} In determining whether permanent custody is in a child’s best interest,
the 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 child’s

wishes; (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




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                     OHIO FIRST DISTRICT COURT OF APPEALS



permanent custody; and (e) whether any of the factors under R.C. 2151.414(E)(7) to

(E)(11) apply. See R.C. 2151.414(D)(1)(a)-(e) and 2151.353(A)(4).

       {¶40} With respect to the children’s interaction with significant others, the
court noted that father had almost no relationship with his children as he had not

seen them for nearly four years. The court pointed out that even when father was

granted visitation, he was inconsistent in his visits. The court noted that A.P. was in

a foster home with her half-sisters, with whom she was bonded, and that C.P. and

D.P. were placed together in a foster home. The court noted that A.P. was afraid to

visit with father when her brothers would be present, and that father demonstrated a

lack of insight into the sexual abuse committed by his sons upon his daughter. See

R.C. 2151.414(D)(1)(a).

       {¶41} The court noted that the children’s guardian ad litem supported a
grant of permanent custody.       See R.C. 2151.414(D)(1)(b).       In considering the

custodial history, the court noted that the children had been in foster care between

2016 and 2018 and that father had not been involved with them in that time. The

court noted that C.P. and D.P. had been placed with A.P. and their half-sisters until

the reports of sexual abuse occurred. See R.C. 2151.414(D)(1)(c). The court found

that a legally secure permanent placement could not be achieved without a grant of

permanent custody because mother surrendered her parental rights, and father is “a

stranger” to the children, and lacked appropriate housing and income to support

them. See R.C. 2151.414(D)(1)(d). Finally, the court noted that the factor in R.C.

2151.414(E)(10) applied because father had failed to visit or maintain contact with

the children for nearly four years. See R.C. 2151.414(D)(1)(e).

                                  III. Conclusion

       {¶42} Following our review of the record, we hold that the juvenile court’s
determination that father abandoned the children and that the children’s best




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                      OHIO FIRST DISTRICT COURT OF APPEALS



interest is served by a grant of permanent custody is supported by clear and

convincing evidence, and is not against the manifest weight of the evidence. The

record reflects that the children cannot be placed with father within a reasonable

time, or should not be placed with father, and that their best interest would be served

by a grant of permanent custody. Therefore, we overrule father’s assignment of error

and affirm the judgment of the juvenile court granting permanent custody of the

children to HCJFS.

                                                                  Judgment affirmed.

ZAYAS, P.J., and BERGERON, J., concur.


Please note:
       The court has recorded its own entry this date.




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