In re E.H.

[Cite as In re E.H., 

.]




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



 IN RE: E.H.                                :     APPEAL NOS. C-220424
                                                              C-220428
                                            :     TRIAL NO.   F08-1777-X

                                            :

                                            :           O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: December 28, 2022


Kimberly V. Thomas, for Appellant Mother,

Christopher P. Kapsal, for Petitioner-Appellant Aunt,

Joseph T. Deters, Hamilton County Prosecuting Attorney, Silvia Beck, Assistant
Prosecuting Attorney, and Daniel Monk, Assistant Prosecuting Attorney, for Appellee
Hamilton County Department of Job and Family Services,

ProKids and Jeffrey A. McCormick, for Appellee Guardian ad Litem.
                    OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}   Mother and her sister (“aunt”) appeal from the Hamilton County

Juvenile Court’s judgment granting permanent custody of mother’s child E.H. to the

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

aunt’s petition for legal custody. In these consolidated appeals, mother and aunt each

assign error to the juvenile court’s determination that permanent custody was in E.H.’s

best interest. For the following reasons, we affirm the judgments of the juvenile court.

                     Factual and Procedural Background

       {¶2}   E.H. was born in 2015 to mother and father.              Father, though

sporadically involved in E.H.’s life in 2019, has not had any contact with E.H. or

HCJFS since 2020.

       {¶3}   E.H. became involved with HCJFS after mother called 241-KIDS in

September 2018 because she was homeless and stated that she was overwhelmed.

HCJFS subsequently did a wellness visit, and then on September 10, 2018, filed a

motion for interim custody of E.H., a complaint for permanent custody of E.H., and a

motion for a determination that reasonable efforts are not required based on mother’s

prior involvement with HCJFS. See R.C. 2151.419(A)(2) (directing the court to “make

a determination that the agency is not required to make reasonable efforts to * * *

eliminate the continued removal of the child from the child’s home, and return the

child to the child’s home” if the parent “has had parental rights involuntarily

terminated with respect to a sibling of the child.”). A hearing was held the following

day, and the magistrate granted the motion for interim custody and determined that

reasonable efforts were not required. Amended complaints were filed in October 2018

and November 2018.


                                           2
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶4}   An adjudication hearing was held on December 6, 2018. E.H. was

adjudicated dependent, and an allegation of abuse against mother was dismissed on

December 19, 2018. A disposition hearing was held on January 3, 2019, wherein all

parties agreed to the disposition of temporary custody. Mother was homeless at the

time of this hearing.

       {¶5}   Case-plan services were instituted, and required mother to complete a

Diagnostic Assessment of Functioning and follow recommendations; obtain/maintain

housing and income; complete a psychological assessment and engage in

recommended treatment; participate in parenting classes; participate in the

therapeutic intervention program (“TIP”); and participate in visitation with E.H.

Father was ordered to cooperate with HCJFS, complete a DAF, and visit E.H.

       {¶6}   Temporary custody was extended twice on HCJFS’s motion—from

September 2019 through March 2020, and then from March 2020 to September 2020.

HCJFS then filed a motion for permanent custody on July 14, 2020. Five months later,

on December 10, 2020, aunt filed a motion for an emergency hearing and a petition

for custody of E.H. The court denied the motion for an emergency hearing. HCJFS

ordered an expedited home study for aunt in February 2021. The home study did not

approve aunt as a caregiver for E.H.

       {¶7}   A five-day trial was held between September 2021 and January 2022 on

HCJFS’s motion for permanent custody and aunt’s motion for legal custody. On May

31, 2022, the magistrate recommended denying aunt’s motion for legal custody and

granting HCJFS’s motion for permanent custody. Both mother and aunt timely

objected to the magistrate’s decision. On August 3, 2022, both objections were denied,



                                          3
                      OHIO FIRST DISTRICT COURT OF APPEALS




and the court approved and adopted the magistrate’s decision. Mother and aunt each

timely appealed.

                          Divergent Standards of Review

       {¶8}      While mother and aunt articulate their assignments of error the same

way, each argument is slightly different because different rights are at stake. Mother’s

argument solely challenges the court’s grant of permanent of custody. She contends

that the decision is not based on sufficient evidence and is against the manifest weight

of the evidence. She asks this court to reverse the judgment, and to return E.H. to her

custody.

       {¶9}      Aunt also challenges the evidence underlying the permanent-custody

determination, and, at the same time, argues that the court erred in denying her

petition for legal custody. However, as E.H.’s aunt, she is only able to challenge the

court’s decision to deny her motion for legal custody. This is because “[r]elatives

seeking custody of a child do not have the same rights as natural parents” and “thus

they cannot challenge the juvenile court’s ruling on [the permanent-custody] issue.”

In re L & M Children, 1st Dist. Hamilton Nos. C-180598, C-180628 and C-180629,

, 21-22 (Feb. 22, 2019).

       {¶10} Therefore, we review mother’s assignment of error as it relates to the

grant of permanent custody, and aunt’s as it relates to the denial of her petition for

legal custody.

       {¶11} When this court addresses sufficiency-of-the-evidence challenges in the

permanent-custody context it, “tak[es] a fresh look at the evidence to see whether it

clearly and convincingly supports the court’s decision.” In re M/E, 1st Dist. Hamilton

No. C-200349, 

. Clear and convincing evidence is evidence that

                                           4
                      OHIO FIRST DISTRICT COURT OF APPEALS




“ ‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the facts

sought to be established.’ ” In re L.H., 1st Dist. Hamilton No. C-220161,

, quoting Cross v. Ledford, 

, 477, 

(1954).     In applying the clear-and-convincing standard, where there is “ample

competent and credible evidence supporting the trial court’s determination,” this

court must not substitute its judgment for that of the juvenile court. In re A.M., 1st

Dist. Hamilton No. C-190027, 

.

          {¶12} When this court addresses a manifest-weight challenge in the

permanent-custody context, it “consider[s] ‘whether the [juvenile] 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 M/E at ¶ 8, quoting In re P/W Children,

1st Dist. Hamilton No. C-200103, 

.

          {¶13} However, when it comes to the denial of aunt’s petition for legal custody,

the review is slightly different, and we instead review the court’s decision for an abuse

of discretion. In re D.Z.F., 1st Dist. Hamilton No. C-200260, 

;

see In re M/E at ¶ 18 (explaining that “[w]e measure weight and sufficiency challenges

to a legal custody determination differently” because residual parental rights are not

at stake). A trial court abuses its discretion in this context “when its best-interest

determination is not supported by competent and credible evidence.” In re F.B.D., 1st

Dist. Hamilton No. C-180356, 

.

                   Mother’s Assignment of Error: Permanent Custody

          {¶14} Our analysis on the permanent-custody side of this case is guided by the

two-prong test of R.C. 2151.414(B)(1): A juvenile court may grant permanent custody

only if it determines that one of the conditions in R.C. 2151.414(B)(1)(a) through (e) is

                                             5
                      OHIO FIRST DISTRICT COURT OF APPEALS




satisfied, and that permanent custody is in the best interest of the child considering

“all relevant factors,” including those set forth in R.C. 2151.414(D)(1)(a)-(e).

       {¶15} It is undisputed that the first prong of the test is satisfied because E.H.

has been in HCJFS custody for more than 12 months of a consecutive 22-month

period. R.C. 2151.414(B)(1)(d). However, the parties dispute whether permanent

custody is in E.H.’s best interest.

       {¶16} R.C. 2151.414(D)(1) provides that when making a best-interest

determination, “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, * * *;

       (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.

                                            6
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶17} First, under R.C. 2151.414(D)(1)(a), the court considered E.H.’s

relationship with his mother. All parties agree that E.H. is bonded with mother, and

that mother was consistent with her visits. But, those visits were always supervised

and were not always without conflict. Grace Badger, an HCJFS caseworker testified

that at one visit in a local park mother grew very angry with E.H. and was yelling at

him and calling him names like “lame” and “ugly.” Badger testified that at another

visit at a local park, the police were called due to mother’s behavior. Deborah

Schneider, a JusticeWorks supervisor, testified about an August 2021 incident at

Smale Park that was “really bad” because mother “verbally abused” Schneider during

the visit. Mother did not dispute that this occurred, but explained that “I was really

hot and frustrated. * * * I felt like [Schneider] was overstepping a little bit.” In

response to these behaviors, the visits were periodically moved to a more supervised

level of visitation. Schneider testified that mother always came prepared to the visits,

could de-escalate when E.H. was upset, and that E.H. wanted to stay and play with his

mother when the visits were over. Badger testified that E.H. said he loves his mom

and his visits with her, and that he misses her, but sometimes said that “mom is mean.”

       {¶18} There were also concerns about mother’s mental-health issues. The

“Diagnostic Assessment of Functioning” lists diagnoses for unspecified depressive

disorder, unspecified anxiety disorder, and a previous diagnosis of bipolar disorder.

Mother testified at the January 28, 2022 hearing that she continues to work on her

explosive behavior, but admitted on cross-examination that she continues to have

outbursts in reaction to certain, triggering things, such as attorneys asking her

questions during the trial. The court noted that on more than one occasion, security

was needed in the courtroom in response to these outbursts. Mother testified that

                                           7
                    OHIO FIRST DISTRICT COURT OF APPEALS




while she was prescribed medication for her mental-health issues, the medication

makes her too tired to work, so she only takes them as-needed. While the case plan

ordered mother to engage in talk therapy, mother admitted discontinuing therapy

after several sessions because therapy itself is triggering for her due to the time she

spent in the foster care system as a child. Francoise Pierredon, a clinical counselor

with TIP, testified that she met with mother for two therapy sessions, but at the second

session mother “was so upset that we had to call security.” After that, mother returned

for “a few sessions” with a different provider.

       {¶19} Additional concerns were raised about mother’s relationship with P.K.,

whom E.H. knows as “Papa.” Badger testified that E.H. “reported some sexual

touching by [P.K.]” and that E.H. had exhibited sexualized behavior with other young

children in a foster home. Pierredon testified that E.H. had named P.K. as his abuser

when he was around three years old. Badger testified that mother claimed she was not

involved with P.K. any longer, but that he came to at least one visit to “help set up” and

would “have brief interactions with E.H.” Badger testified that mother did not see an

issue with P.K. being there, despite the allegations. Schneider testified that P.K. would

simply bring things to the visits to help mother.

       {¶20} Mother explained that she thought that P.K. “was cleared” and that

“nothing was bad” and “nothing was going on.” Badger testified, however, that once

she realized mother had this impression, she clarified that the only way P.K. would not

be an issue was if mother was no longer involved with him. Mother testified that she

has since “cut all interactions with him.”

       {¶21} Mother’s history of housing instability was also raised by the parties and

considered by the court. Badger testified that she once showed up to a home visit at

                                             8
                     OHIO FIRST DISTRICT COURT OF APPEALS




the address given to her by mother and another person was living there. Badger

testified that mother secured housing in the spring of 2021, but was evicted in May

“due to a nuisance behavior.” Then, mother said she had another apartment, but

Badger testified that it was not a valid lease, and that the owner of the building had no

record of her as a tenant. Currently though, mother has a two-bedroom apartment,

with a room for E.H., and according to Schneider it has “been painted and the carpet

is new. The furnishings are very nice. And she * * * takes a lot of pride in her

apartment.” While concerns were raised by HCJFS Supervisor Ralph Allen about

mother’s ability to afford the approximately $900 monthly rent, mother was working

two jobs at the time of trial.

        {¶22} The court also considered E.H.’s wishes, with regard to his age and

maturity pursuant to R.C. 2151.414(D)(1)(b). The court found that E.H. had expressed

an interest in returning to mother’s home and E.H.’s In re Williams attorney

advocated accordingly at trial, given the conflicting recommendation of the guardian

ad litem (“GAL”). See In re Williams, 

, 

, 

. However, in a case involving similarly young children, we stated that this

“factor is of minimal value in determining [a child’s] best interest,” given their young

ages. In re P. & H., 1st Dist. Hamilton Nos. C-190309 and C-190310, 

,

¶ 38.

        {¶23} Under R.C. 2151.414(D)(1)(c), the court found that E.H. had been in the

temporary custody of HCJFS for 38 months at the time of trial. This finding is

well-supported in the record and is not in dispute.

        {¶24} The court also considered E.H.’s need for a legally secure placement

under R.C. 2151.414(D)(1)(d). A legally secure placement refers to more than just a

                                           9
                    OHIO FIRST DISTRICT COURT OF APPEALS




roof over one’s head, rather, a legally secure placement, “ ‘encompasses a stable

environment where a child will live in safety with one or more dependable adults who

will provide for the child’s needs.’ ” In re P. & H., 1st Dist. Hamilton Nos. C-190309

and C-190310, 

, at ¶ 42, quoting In re K.W., 

, 

 (4th Dist.) (“Mother’s failure to comply with her case plan, along with

the presence of grandmother at the home, provided clear and convincing evidence that

mother was unable to provide a legally secure permanent placement.”); see In re J.H.,

11th Dist. Lake No. 2012-L-126, 

 (record supported a finding that

parents were unable to provide a legally secure placement where parents were not

grasping parenting concepts and were not truthful in mental-health evaluations.).

       {¶25} The court considered that E.H. had been in multiple kinship and foster

placements through the pendency of the case. Mother contends that E.H.’s numerous

foster placements demonstrate that permanent HCJFS custody does not provide a

legally secure placement, but the state contends that much of the disruption was due

to mother’s behavior. Badger testified that the high number of placements for E.H. is

“[p]artially due to his behavior, partially due to some providers not wanting to engage

with mother anymore.” Allen testified at the January 24, 2022 hearing that E.H. was

back in the same foster home that he previously had been in. Allen explained that he

was only displaced from that home due to a fire.

       {¶26} The court also considered testimony about E.H.’s mental-health

challenges. Pierredon testified that, in addition to the sexualized behaviors, he

exhibited “very clear symptoms of post-traumatic stress disorder” and was also

diagnosed with ADHD and intermittent explosive disorder. In Pierredon’s view, many

of E.H.’s challenges come from a lack of stability. Mother’s hesitancy to engage in

                                          10
                    OHIO FIRST DISTRICT COURT OF APPEALS




therapy was also considered.       And while the record demonstrates that mother

completed parenting classes, she did not fully participate in E.H.’s therapy, and did

not complete her own therapy as directed by the case plan.

       {¶27} Under R.C. 2151.414(E)(1o), the court found that E.H.’s legal father had

abandoned him, having not visited him since September 2020.              This finding is

well-supported in the record and is not in dispute.              Similarly, under R.C.

2151.414(E)(11), the court found that mother had her parental rights terminated with

regard to a sibling of E.H. This finding is also supported in the record and is not in

dispute.

       {¶28} After thoroughly reviewing the record and the trial court’s analysis, we

conclude that the trial court’s judgment was based on sufficient evidence and was not

against the manifest weight of the evidence. The record clearly and convincingly

supports the court’s decision to grant permanent custody to HCJFS. Moreover, in

resolving the few conflicts that there were in the evidence, we cannot say that the trial

court lost its way. For these reasons, mother’s assignment of error is overruled.

                  Aunt’s Assignment of Error: Legal Custody

       {¶29} On the legal-custody side, when a child has already been adjudicated

abused, neglected, or dependent—as is the case here—the court’s focus is on the child’s

best interest. In re M/E, 1st Dist. Hamilton No. C-200349, 

.

To make this best-interest determination, “courts are permitted to use R.C.

2151.414(D)(1) (the permanent-custody factors discussed above) or R.C. 3109.04(F)

(factors used for private custody disputes).” 

 citing In re E.R.M., 1st Dist. Hamilton

No. C-190391, 

.



                                           11
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶30} In this case, the court reviewed the factors set forth in R.C. 2151.414(D),

starting first with E.H.’s relationship with aunt. Under this factor, the court found that

while aunt had stable employment and housing, her failed home study, prior

involvement with HCJFS, and lack of insight into the tumult in E.H.’s life disqualified

her from obtaining legal custody. The record supports these findings.

       {¶31} Central to the failed home study was aunt’s prior HCJFS involvement

and trouble with the law. The home study report explains that aunt had instances of

substantiated physical abuse in 2005 and 2007, including a SWAT call to her

then-partner M.D.’s home “due to an allegation that drugs were being sold out of the

home. [M.D.’s] children were present at the time. [Aunt] was found with cocaine and

2 guns in her possession. Prior to SWAT coming to the home, [Aunt] sold drugs to an

undercover officer.” In 2008, an unsubstantiated allegation of abuse was documented

wherein M.D.’s daughter “reported that she was slammed into a door by [aunt]

resulting in her losing her tooth.” The home study report detailed additional criminal

history associated with felony drug sales in 2007, drug trafficking in 2012, and a

criminal damaging misdemeanor in 2009. Aunt testified that her time in prison

changed her, and she has since been living a law-abiding life. She added that she has

cut ties with M.D. since then, however, Stephanie Hunter, the home study assessor,

noted in the home study report that aunt was on a FaceTime call with M.D. during the

home visit, and listed M.D. as a collateral source and support. Also concerning to the

court was aunt’s lack of insight into E.H.’s life, including the fact that aunt did not

know, for several years, that E.H. was even in foster care.

       {¶32} On the other hand, aunt testified that she has lived in the same

apartment for four years and works two well-paying jobs. Schneider testified that aunt

                                           12
                     OHIO FIRST DISTRICT COURT OF APPEALS




has “always been a calming presence * * * always been positive.” Aunt testified about

one such visit she attended with mother, where she was able to help mother and E.H.

calm down and avoid a conflict. Mother testified aunt would be a great mom for E.H.

And while aunt testified “I don’t know how to be a mom,” she added that “I do know

what it feels like to be loved, and that’s what—that’s the biggest thing here.” She also

expressed a desire to continue E.H.’s involvement in therapy. She testified that she

had not researched options for daycare or schooling.

       {¶33} When considering E.H.’s need for a legally secure placement, the court

noted concern with aunt’s lack of insight into the severity of mother’s and E.H.’s

mental-health challenges. Aunt testified, “I don’t know anything about [mother’s]

mental health.” Overall, the record demonstrates that aunt had little to no insight into

the current state of E.H.’s or mother’s therapy, but Aunt admitted that this was

because she does not have a strong relationship with mother and because HCJFS

would not tell her any information about E.H.

       {¶34} Based on our review of the record as it relates to aunt, we cannot say

that the trial court abused its discretion in denying aunt’s petition for legal custody.

While aunt certainly seems to have a strong relationship with E.H. and has turned her

life around, the court’s best-interest determination was supported by competent and

credible evidence.

                                     Conclusion

       {¶35} In light of the foregoing analysis, both mother’s and aunt’s assignments

of error are overruled. The judgments of the juvenile court are affirmed.

                                                                  Judgments affirmed.

ZAYAS, P. J., and WINKLER, J., concur.

                                          13
                   OHIO FIRST DISTRICT COURT OF APPEALS




Please note:

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




                                          14