In re H.V.F.

[Cite as In re H.V.F., 2024-Ohio-5838.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

IN RE: H.V.F. :

:

: C.A. No. 30183

:

: Trial Court Case No. C-2021-003617-0L

:

: (Appeal from Common Pleas Court-

: Juvenile Division)

:

:

...........

OPINION

Rendered on December 13, 2024

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KRISTIE GOTWALD, Attorney for Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

.............

WELBAUM, J.

{¶ 1} Appellant D.B. (“Father”) appeals from a judgment terminating his parental

rights with respect to his daughter, H.V.F. According to Father, the judgment was

against the manifest weight of the evidence because he had substantially completed all

his case plan requirements and reunification was possible within a reasonable time.

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Mother did not appeal or file a brief. However, in response to a show cause order,

Mother said she supports Father’s appeal and his effort to obtain custody of H.V.F.

{¶ 2} Our review indicates that ample evidence existed to support the judgment,

and it therefore was not against the manifest weight of the evidence. Accordingly,

Father’s assignment of error is without merit, and the trial court’s judgment will be

affirmed.

I. Facts and Course of Proceedings

{¶ 3} In August 2021, Montgomery County Children Services (“MCCS”) filed a

complaint in juvenile court alleging that H.V.F. was a dependent child. At the time, H.V.F.

was only four months old. The complaint raised many concerns, including Mother’s

mental health, the child’s failure to thrive, and the fact that another child of Mother, H.L.,

had been adjudicated as dependent in April 2021. In addition, the complaint noted

historical concerns about Mother’s substance abuse, domestic violence with her then-

husband, and other issues. Due to these problems, four of Mother’s other children had

been adjudicated dependent in 2015 and placed in their grandmother’s legal custody.

The complaint further noted that H.V.F.’s “legal” father, S.W., and her alleged father, D.B.,

had not been in contact with MCCS. MCCS requested an order of protective supervision

or temporary custody.

{¶ 4} Another complaint was filed several days later, adding that MCCS had

received reports that Mother had been taken to the hospital for hallucination. When

MCCS met with Mother, she reported that she did not have anyone to watch the children;

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as a result, the police were called and gave MCCS emergency custody of H.L. and H.V.F.

The current appeal involves only H.V.F., however.

{¶ 5} The court appointed a guardian ad litem (“GAL”) for H.V.F. and also

appointed counsel for Mother. At a hearing held on August 24, 2021, the court granted

interim temporary custody to MCCS and filed an order to that effect. The court set an

IAH(CIC) hearing for October 19, 2021, and an adjudication and disposition hearing for

November 21, 2021. During the October hearing, Mother stipulated to the facts in the

complaint and to the adjudication of dependency under R.C. 2151.04(B), (C), and (D).

Magistrate’s Interim Order (Oct. 19, 2021), p. 1.

{¶ 6} Prior to the November 21 hearing, the GAL filed a report recommending that

the court award temporary legal custody to MCCS. At that time, the GAL had not

observed Father with H.V.F., as he had no scheduled visitation and had not participated

in the investigation. 2nd GAL Report to the Court (Nov. 12, 2021), p. 1. After the

hearing, the court granted MCCS temporary custody of H.V.F. and set a dispositional

review hearing for February 8, 2022. MCCS then filed a case plan in late November

2021. At that time, MCCS had set various goals for Mother, but Father was not yet

involved.

{¶ 7} In December 2021, MCCS filed a semi-annual review, noting, among other

things, that H.V.F. had been born prematurely and was behind developmentally. H.V.F.

was linked with Help Me Grow, received physical therapy, attended the Neonatal

Abstinence Syndrome (“NAS”) Clinic, and had a scheduled appointment with a

developmental pediatrician in February 2022. Semi-Annual Review (“SAR”) (Dec. 17,

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2021), p. 2. At that time, Mother had made limited progress on her case plan, and Father

had not been in contact with MCCS. Id. at p. 5.

{¶ 8} In late January 2022, the GAL filed another report expressing concern that

Mother had missed visitation. More concerning, she had missed medical appointments

for H.V.F., who had substantial medical needs. 3rd GAL Report (Jan 28, 2022), p. 5.

The GAL recommended that MCCS retain temporary legal custody and that Mother’s

visitation continue at the agency and be supervised. Id. Again, Father had not been

observed with H.V.F. Id. at p. 1. At the February 2022 review hearing, the court ordered

that all November 2021 orders remain in effect until disposition. The court also set a

further review hearing for July 26, 2022.

{¶ 9} Before that July review hearing, however, MCCS filed a motion seeking

permanent custody of H.V.F. In the motion, MCCS alleged: (1) S.W. had been found not

to be H.V.F.’s legal father and had been removed as a party; (2) Mother was inconsistent

with visitation and had not made significant progress on her case plan; and (3) Father

had not contacted MCCS and was not visiting H.V.F. The GAL then filed another report

recommending that permanent custody be granted to MCCS. See 4th GAL Report (July

18, 2022), p. 4. During the July 26 hearing, Father appeared for the first time. At that

time, the court noted that Father had initiated a paternity action, but genetic testing had

not been completed. Father had also recently been released from prison and had not

yet had any visits scheduled with H.V.F. The court then set trial for October 21, 2022.

Magistrate’s Interim Order (July 27, 2022), p. 2-3. On September 26, 2022, the court

appointed counsel for Father.

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{¶ 10} In early October 2022, MCCS filed an amended case plan, which outlined

objectives for Father. These included: completing a dual assessment for mental health

and substance abuse and following providers’ recommendations; completing Batterer’s

Intervention and refraining from engaging in domestic violence relationships; complying

with the MCCS caseworker and signing releases of information as the agency and

providers required; obtaining and maintaining legal income to meet H.V.F.’s needs and

providing proof of paystubs to the agency; maintaining housing and providing a copy of

the lease to the agency; complying with all parole terms and conditions; completing

parenting classes and demonstrating learned skills; visiting with H.V.F. once a week to

establish a bond; and attending all the child’s medical appointments. Case Plan (Oct. 4.

2022), p. 3.

{¶ 11} At this time, the GAL again recommended that the court grant permanent

custody to MCCS, but he did say he would supplement the report after meeting with

Father. See 5th GAL Report (Oct. 4, 2022). At Father’s request, the court continued

the permanent custody trial until January 7, 2023. Father then filed a motion seeking

legal custody of H.V.F., or alternatively, temporary custody.

{¶ 12} A December 2022 SAR stated that Father had a history of domestic

violence with Mother, had an extensive criminal history, struggled with stress and anger,

had spent 29 years in prison for violent crimes, and was then on parole. Father had also

admitted that he smoked marijuana daily and struggled with mental health. SAR (Dec.

14, 2022), p. 3. Father had made some progress on the case plan, as he had completed

parenting classes and was attending weekly therapy sessions. Father had just begun

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supervised visits in October, and the child was uncomfortable with him. Father also left

visits early. Id.

{¶ 13} Due to witness unavailability, the court continued the permanent custody

trial to April 12, 2023. Shortly before trial, the GAL supplemented his report. See 5th

GAL Report, Supplemented (Apr. 5, 2023). In the report, the GAL recounted Father’s

extensive prison history. The GAL further noted that Father had been diagnosed with

marijuana and cocaine dependency, had admitted to daily marijuana use, and had tested

positive for marijuana at the agency. Furthermore, Father had been arrested on January

18, 2023, for trafficking in drugs. The police report indicated that several individually

packaged baggies of marijuana had been found in Father’s car. Id. at p. 5. The GAL

concluded that H.V.F.’s safety was at risk with both parents and again recommended that

the court grant permanent custody to MCCS. Id. at p. 8-9.

{¶ 14} After holding the scheduled permanent custody hearing in April 2023, the

magistrate filed a decision finding that MCCS had met its burden of establishing several

grounds for permanent custody in R.C. 2151.414(E), and that an award of permanent

custody would be in H.V.F.’s best interest. Magistrate’s Decision and Judge’s Order

(May 30, 2023). Due to various service issues, Father’s objections to the decision and

MCCS’s response were not completed until early February 2024. The trial court then

issued a decision overruling the objections and concluding that permanent custody should

be granted to MCCS. Judge’s Final Appealable Order (“Order”) (May 20, 2024). Father

timely appealed from the court’s decision.

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II. Manifest Weight of the Evidence

{¶ 15} Father’s sole assignment of error states that:

The Trial Court’s Findings of Facts and Decision That Permanent

Custody Should Be Granted to the Agency Are Against the Manifest Weight

of the Evidence.

{¶ 16} Under this assignment of error, Father contends that the trial court’s custody

decision was against the manifest weight of the evidence because he had substantially

completed his case plan. The goals included having clean and suitable housing, having

sufficient income, and consistently attending visitation. In addition, while not assigning

these points as separate assignments of error, Father argues that the trial court

improperly relied on a “non-existent” domestic violence charge; that his criminal history

should not disqualify him from parenthood, since he is “older, more mature and has an

incentive to avoid recidivism”; and that he is a suitable parent and should not be denied

custody simply because the foster parents desire to adopt H.V.F. Father’s Brief, p. 11-

19. Before we address Father’s claims, we will outline the relevant review standards.

A. Review standards

{¶ 17} The standards that apply in reviewing decisions on permanent custody of

children and termination of parental rights are sufficiency of the evidence and manifest

weight of the evidence. In re Z.C., 2023-Ohio-4703, ¶ 1. Here, Father has asserted

only manifest weight, and that is what we will consider. When an appellate court reviews

for manifest weight, it “must weigh the evidence and all reasonable inferences, consider

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the credibility of the witnesses, and determine whether, in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a manifest miscarriage

of justice that the judgment must be reversed and a new trial ordered.” Id. at ¶ 14, citing

Eastley v. Volkman, 2012-Ohio-2179, ¶ 20.

{¶ 18} “In weighing the evidence, the court of appeals must always be mindful of

the presumption in favor of the finder of fact.” Eastley at ¶ 21. The underlying rationale

for deferring to trial court findings “ ‘rests with the knowledge that the trial judge is best

able to view the witnesses and observe their demeanor, gestures and voice inflections,

and use these observations in weighing the credibility of the proffered testimony.’ ” Z.C.

at ¶ 14, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). “ ‘ “If

the evidence is susceptible of more than one construction, the reviewing court is bound

to give it that interpretation which is consistent with the verdict and judgment, most

favorable to sustaining the verdict and judgment.” ’ ” Id., quoting Seasons Coal at 80, fn.

3. (Other citation omitted.)

B. Discussion

1. Applying Required Statutory Findings for Granting Permanent Custody –

R.C. 2151.414(B)(1) and R.C. 2151.414(E)

{¶ 19} Under R.C. 2151.414(B)(1), a court may grant permanent custody to an

agency if it finds by clear and convincing evidence that this is in the child's best interest

and that one of the five conditions in subsection (B)(1)(a)-(e) apply. The condition the

trial court relied on here is R.C. 2151.414(B)(1)(a), which provides that a court may grant

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permanent custody if “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.” Under R.C.

2151.414(E), this finding can be made if the court finds that any one of 16 listed factors

applies.

{¶ 20} In this case, the trial court found by clear and convincing evidence that R.C.

2151.414(B)(1)(a) and R.C. 2151.414(E)(1) applied to both Mother and Father. Order at

p. 2-3 and 5. The court further found that R.C. 2151.414(E)(2) applied to Mother, R.C.

2151.414(E)(4) applied to both parents, and that R.C. 2151.414(E)(13) applied to Father.

Id. at p. 6-7. We will consider only the factors relating to Father, as Mother did not

appeal.

{¶ 21} R.C. 2151.414(E)(1) applies if, “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 addition, R.C. 2151.414(E)(1) states that in deciding if 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.”

{¶ 22} In this regard, the trial court considered Father’s case plan and made the

following observations: (1) Father had completed initial drug treatment, but shortly after

screened positive for marijuana. He was asked to reengage in treatment but failed to do

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so; (2) the agency was also concerned about Father’s alcohol use, as he reported using

it in the absence of marijuana and drank about two beers per day; (3) Father was on

parole for burglary and failed to comply with parole conditions; (4) while Father’s housing

was clean and appropriate, Father’s girlfriend lived there, had a criminal background, and

had not come to MCCS to be fingerprinted; (5) Father claimed to be employed, but MCCS

had not received pay stubs and did not believe his income was sufficient; and (6)

observation of Father’s visit with H.V.F. revealed that he did not listen to her when she

said she did not want to be near him and had to be redirected. H.V.F. was nervous

around Father at the beginning of visits but eventually calmed down and interacted with

him. Order at p. 4-5.

{¶ 23} Concerning the court’s findings, we note the following facts. The MCCS

caseworker, Katie, testified at the custody hearing. Katie had been assigned to the case

(which also involved an older sibling, H.L.), since December 2020. This was before

H.V.F. was born. Both children were removed from Mother’s care in August 2021, and

MCCS originally placed them in the same foster home. However, MCCS removed H.L.

a few months later and placed her in a different foster home due to her behaviors and

tantrums. Since being removed from Mother’s home, both children were continuously in

MCCS’s custody and in foster care. Transcript of Proceedings (“Tr.”), 84-85.

{¶ 24} Katie discussed the case plan with Father once he became involved in

October 2022. She asked Father to complete a batterer’s program due to his criminal

history and domestic violence. He had nearly completed this program at the time of the

permanent custody hearing. Katie requested the batterer’s program because Father had

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been charged with domestic violence in 1997 and also in August 2021. Id. at 102-103,

124-125, 147, and 164.1

{¶ 25} Father had also completed a mental health and substance abuse

assessment and had successfully completed the substance abuse treatment in January

2023. However, Father was drug-screened shortly thereafter at visitation due to reports

of what appeared to be marijuana falling out of his pocket and the smell of marijuana on

Father. Specifically, when H.V.F.’s foster father, J.J., took her for a visit at the agency

on February 15, 2023, he saw a small bag of marijuana (or what looked like marijuana)

drop out of Father’s coat. J.J. told the front desk and the Sheriff about this, and the

Sheriff said he would ask Father about it. At that point, the visit was briefly stopped for

a drug test, which resulted in a positive THC test for Father. During the remaining visits

between that time and the April 2023 custody hearing (other than the very last visit), J.J.

continued to notice that Father had a fragrance of marijuana. Id. at 21-22 and 125.

{¶ 26} On the day Father was drug-screened, he admitted to Katie that he smoked

a “joint” or two every day. After being screened, Father admitted that he needed to re-

engage in services, and Katie asked him to do so as soon as possible. However, at the

time of the hearing, Father still had not re-engaged in treatment. Katie had also smelled

marijuana on Father during multiple visits. Tr. at 125-127, and 147.

{¶ 27} Furthermore, Katie had spoken to Father about alcohol being a concern.

During Katie’s last home visit with Father (a few weeks before the custody hearing), his

1 Father had also served 11 years in prison for felonious assault, which is an offense of

violence. See R.C. 2901.01(A)(9)(a), which defines offenses of violence. These

offenses include R.C. 2903.11 (felonious assault). Father was in prison on that charge

from 2002 until 2013. Tr. at 174.

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demeanor had changed. Father was very talkative and very vulgar, whereas he usually

was not. When Katie asked Father about this, he said that since he could not smoke

marijuana, he had to drink liquor, and this is what liquor did to him. Father reported

drinking a beer or two a day, but Katie saw a bag on the stairs that contained a beer bottle

and a mini-shot bottle that smelled like liquor. Katie said that alcohol use was also

something that should be addressed at therapy, and Father needed to re-engage. A

week before the custody hearing, Katie reached out to Father’s therapy office to ask if he

had re-engaged. She was told Father had called but had not scheduled anything. At

that time, Katie told Father’s case manager about the positive drug screen and the alcohol

use. Id. at 131-133 and 143. Based on the above events, this part of Father’s case

plan was incomplete.

{¶ 28} During the custody hearing, Katie also testified that she and her supervisor

had expressed concerns to Father’s parole officer about Father’s marijuana possession

and his positive drug screen. Furthermore, MCCS receives “CJIS hits” whenever a

person involved in a case plan is arrested. 2 Consequently, Katie became aware of

Father’s arrest in January 2023 and obtained a police report concerning the incident. It

2 CJIS was not defined during the hearing, but it apparently is the abbreviation for

“Criminal justice information services division.” See Ohio Adm.Code 4501:2-10-01(K),

eff., Oct. 1, 2024 (formerly Ohio Adm.Code 4501:2-10-01(K)). According to subsection

(K), CJIS “is the FBI division responsible for the collection, warehousing, and timely

dissemination of relevant CJI to the FBI and to qualified law enforcement, criminal justice,

civilian, academic, employment and licensing agencies.” Id. This is very similar to the

definition in former Ohio Adm.Code 4501:2-10-01(N). “CJI” is defined as “the abstract

term used to refer to all of the LEADS provided data necessary for law enforcement

agencies to perform their mission and enforce the laws, including but not limited to:

biometric, identity history, person (includes driver's license photo, SSN, etc.),

organization, property (when accompanied by any personally identifiable information),

and case/incident history data.” Ohio Adm.Code 4501:2-10-01(J).

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came up as a felony drug-trafficking charge, and Katie asked Father about it. In

response, Father said the police had found a couple of marijuana baggies in his car, that

they were not his, and that the charge was just going to be a misdemeanor. Katie

reached out to Father’s parole officer and to a detective but had not yet heard back at the

time of the custody hearing. Father did report to Katie that a charge was pending. At

the hearing, however, Father first denied that he had any criminal charges pending and

claimed the marijuana belonged to his girlfriend’s brother. Later, he admitted that he

currently did not know what was going on with the marijuana charge. Id. at 127, 129,

and 165-166. Thus, Father did not comply with parole conditions.

{¶ 29} Although Father had appropriate housing, his girlfriend was living there and

also had a criminal history. Again, Father’s stories were contradictory. He initially

denied his girlfriend was living there, but later told Katie’s supervisor that the girlfriend

was living at his house. Katie’s supervisor was able to talk briefly with the girlfriend

during a home visit (which occurred when Katie was on military leave). After returning

from leave, Katie was unable to make contact, and the girlfriend had not come to the

agency to provide fingerprints. Katie did a cursory CJIS check and was concerned

because the girlfriend had criminal charges within the previous year. Tr. at 129-130.

{¶ 30} Regarding income, Katie was aware Father had income from two jobs, but

she had not been able to get paystubs from one of the jobs. The paystubs she had

obtained from the other job (which was for a temporary agency) were usually for just one

day at a time. Katie therefore did not know if Father was making sufficient income to pay

his bills and provide for a child. Id. at 134-135 and 150. Later in the custody hearing,

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Father made claims about his income but provided no documentation of his income or

expenses. Id. at 168 and 171-172,

{¶ 31} Finally, Katie testified that the agency felt reunification with either parent

was not possible within the foreseeable future because of the parents’ lack of consistency

and stability. She also said a grant of permanent custody to the agency was in H.V.F.’s

best interest. Id. at 142-143. The GAL was present at the hearing and stated that, after

hearing the testimony, he still recommended granting permanent custody to MCCS. Id.

at 182.

{¶ 32} Having reviewed the record, we conclude that the trial court’s finding under

R.C. 2151.414(E)(1) was not against the manifest weight of the evidence; instead, it was

supported by ample evidence. Father is simply incorrect when he claims he had

substantially completed all his case plan requirements. During the case, Father failed to

re-engage in drug and alcohol treatment, despite the clear need to do so, and he failed in

various ways to comply with his parole, including being arrested for drug trafficking. In

addition, Father failed to provide paystubs and bills to MCCS. There was no indication

from him that doing so would be difficult.

{¶ 33} Finally, MCCS was rightly concerned about the girlfriend’s criminal history,

which Father did not address satisfactorily. While Father claimed his girlfriend did not

live with him, his own statements were contradictory on this point. The court, as the trier

of fact, was in the best position to assess credibility. Z.C., 2023-Ohio-4703, at ¶ 14.

{¶ 34} While one finding under R.C. 2151.414(E) is sufficient, we will briefly

address the remaining two factors. R.C. 2151.414(E)(4) relates to a finding that: “The

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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.”

Notably, H.V.F. was born in mid-April 2021, and Father claimed to have kept her at his

home several times. However, Father was present in H.V.F.’s life for no more than three

months at most, and he was then absent from her short life for well over a year due to his

own choices. Even after Father was released from prison in early May 2022, he did not

establish paternity until the end of September 2022 and did not begin visitation until

October 2022. Tr. at 95 and 155-157. It is true that Father consistently visited H.V.F.

from that time until the hearing. However, H.V.F. did not appear to develop a bond with

Father. Furthermore, for the reasons already stated, Father’s conduct demonstrated an

unwillingness to provide a suitable home, since he failed to comply with simple things he

was asked to do.

{¶ 35} The third factor is R.C. 2151.414(E)(13), which concerns whether: “The

parent is repeatedly incarcerated, and the repeated incarceration prevents the parent

from providing care for the child.” In addition to what has already been said, we note

that Father was 57 years old at the time of the custody hearing. By his own account, he

had spent 33 years in prison on nine different occasions dating back to 1984. Father

testified that three years was the longest period of time he had been out of prison since

he was 15 years old. As indicated, Father had been in prison from 2002 until 2013 for

felonious assault. Father said that when he was released, he stayed out of prison for

about 10 months and then returned to prison for 18 more months. On being released

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that time, he stayed out of prison again until 2015. Given the time frames involved,

Father committed more crimes and returned very quickly to prison. On the last occasion,

Father was imprisoned five more years for burglary. In that particular case, Father was

charged also with having a weapon under disability and receiving stolen property. Tr. at

174-176.

{¶ 36} Father did not say when he was released from prison on the 2015 charge,

but since he served five years, he would have been released at some point in 2020.

However, Father then violated parole in August 2021 and was again sent to prison for

another nine months. Id. at 157. As noted, Father was arrested in January 2023, again

violating parole. Father also had two adult children that had been raised by other people

while he was incarcerated. Id. at 177-178.

{¶ 37} Under the circumstances, the trial court’s conclusion that Father’s repeated

incarceration prevented him from providing care for H.V.F. was not against the manifest

weight of the evidence. While Father claimed at the custody hearing that he was older

and intended to say out of prison, id. at 174 and 176, his prior actions during the case

(when he was about the same age) contradicted this assertion. Accordingly, the trial

court’s finding on this factor was not against the manifest weight of the evidence. The

court did not clearly lose its way and create a miscarriage of justice requiring reversal of

the judgment. Z.C., 2023-Ohio-4703, at ¶ 14.

{¶ 38} In connection with this assignment of error, Father contends the trial court

improperly relied on the caseworker’s vague and inaccurate testimony about a domestic

violence charge that allegedly resulted in the August 2021 revocation. In this regard,

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Father points to the fact that the trial court briefly mentioned this by noting in its entry that

the case worker “was unaware if Appellant was convicted of that charge.” Father’s Brief

at p. 11, quoting Order at p. 4. However, the court did not rely on a domestic violence

conviction in making its findings. In fact, the battering program is one of the few things

Father completed or mostly completed.

{¶ 39} Father also argues that his girlfriend was not living in his home. Again,

there was contrary evidence, and, as stressed, we defer to a trial court’s credibility

determinations. Z.C. at ¶ 14.

2. Analysis of the Child’s Best Interest

{¶ 40} Even if R.C. 2151.414(B)(1)(a) is satisfied, “the agency still must prove by

clear and convincing evidence, that it is in the child's best interest to grant permanent

custody to the agency.” In re N.M.P., 2020-Ohio-1458, ¶ 26, citing R.C. 2151.414(B)(1).

“Clear and convincing evidence is that measure or degree of proof which is more than a

mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce 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 (1954), paragraph three of the syllabus. “ ‘Where the proof

required 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.’ ” Z.C. at ¶ 8, quoting State v. Schiebel, 55 Ohio St.3d 71, 74 (1990).

{¶ 41} To decide a child's best interest, courts analyze factors set forth in R.C.

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2151.414(D)(1)(a)-(e). These include, but are not limited to: (a) the child's interaction

and relationship “with the child's parents, relatives, foster parents and any other person

who may significantly affect the child”; (b) the child’s wishes; (c) the child’s custodial

history, “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 if it can be achieved without granting the agency

permanent custody; and (e) whether any factors in R.C. 2151.414(E)(7)-(11) apply. In

re S.J., 2013-Ohio-2935, ¶ 15 (2d Dist.). Accord In re P.Z.A., 2023-Ohio-2000, ¶ 38 (2d

Dist.). Juvenile courts need not “expressly discuss each of the best-interest factors,” and

“[c]onsideration is all the statute requires.” In re A.M., 2020-Ohio-5102, ¶ 31. Accord

In re P.Z.A. at ¶ 43. Nonetheless, the trial court did expressly discuss all these factors.

See Order at p. 7-8. In reviewing the court’s decision, we will consider each factor.

a. R.C. 2151.414(D)(1)(a) (Interaction with Others)

{¶ 42} At the custody hearing, the court heard testimony from the foster parents

J.J. (foster father) and A.J. (foster mother), who had taken care of H.V.F. since she first

came into foster care a few months after she was born. Tr. at 6.

{¶ 43} H.V.F. had several medical and developmental issues, including: (1)

torticollis of the neck, for which she attended physical therapy; (2) neonatal abstinence

syndrome (NAS) and exposure to hepatitis C, for which she was followed by the NAS

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clinic; (3) recurrent ear infections for which she saw an audiologist; (4) short stature and

microcephaly (meaning her head was too large and her extremities were too short), for

which she was followed by a geneticist at Children’s Hospital; and (5) speech and

developmental delays for which she received speech therapy, physical therapy, and

occupational therapy. In addition, H.V.F. had been diagnosed with trauma and other

stress-related disorders in January 2023 and had been connected with case management

services for treatment. Previously, H.V.F. did not have any signs of anxiousness other

than normal separation anxiety. The foster parents shared in bringing H.V.F. to these

appointments, and Father was notified of appointments through the caseworker. Id. at

7-10, 32-33, 55-56, and 91-92.

{¶ 44} Father began attending appointments in October 2022. He attended the

majority of appointments but had missed a few in the last month before the April 12, 2023

hearing. The last appointment Father attended was on March 13, 2023. When Father

was present, H.V.F. was visibly nervous, clung to the foster parents, and did not

participate in the therapy activity. When Father was not there, H.V.F. participated very

well. H.V.F. was minimally verbal, but when she turned around and saw Father, she

would say “no” and cry, and she would not interact with the provider. Id. at 11-14, 40,

and 57.

{¶ 45} At home, H.V.F. was very well-behaved, was very loving with the foster

parents, and was integrated into their extended family members, who were very close to

her. H.V.F. had also bonded well with the foster parents’ two other children. Tr. at 14-

15 and 24. The foster parents were licensed as an adoptive home, were very bonded

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with H.V.F., and said they would like to pursue adoption if the agency received permanent

custody. Id. at 25-26, 54, and 94.

{¶ 46} Father visited regularly with H.V.F. once a week for two hours beginning in

October 2022. However, between then and mid-January 2023, H.V.F. cried

uncontrollably when J.J. tried to leave her with Father. Consequently, at Father’s

request, J.J. stayed during visitation. J.J. stopped staying in mid-January, but H.V.F. still

screamed and cried and pleaded with J.J. not to leave. After J.J. left, H.V.F. eventually

calmed down and her relationship with Father improved. Nonetheless, after Father’s

visits started, H.V.F.'s separation anxiety increased tenfold, and she began having night

terrors, with the first one occurring on October 27, 2022. The night terrors had since

increased in frequency, and H.V.F. sometimes had them several times a night. Id. at 18-

19, 45-47, 95, and 97-99.

{¶ 47} Father also testified during the custody hearing. He stated that Mother told

him about H.V.F. about a month after the baby was born. At that point, Father went to

see H.V.F. and then kept her at his house several times. At the time, Father was on

parole for a burglary conviction. However, he was arrested for a parole violation on

August 7, 2021 (when H.V.F. was only four months old) and was then sentenced to nine

months in prison. After being released on May 5, 2022, Father did not see H.V.F. until

October 2022, i.e., more than a year had elapsed with no contact. Id. at 155-157.

{¶ 48} Father also stated that H.V.F. was “fine,” and he did not think she had all

the needs that MCCS thought she had. Tr. at 169. Additionally, Father said he did not

participate much during therapy sessions; his choice was to watch and listen. Father

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further remarked that he went to speech and physical therapy appointments but did not

go to occupational therapy. He stated that he only went to the former two therapies and

to visit H.V.F. because “[i]t’s all I was required to do.” Id. at 180.

b. R.C. 2151.414(D)(1)(b) (Child’s Wishes)

{¶ 49} At the time of the hearing, H.V.F. was around two years old and was

essentially non-verbal, using minimal words like yes and no. Id. at 101. Therefore, she

could not express her wishes.

c. R.C. 2151.414(D)(1)(c) (Custodial History)

{¶ 50} As indicated, the MCCS caseworker, Katie, had been assigned to the case

since December 2020. H.V.F. and her sister had been removed from Mother’s care for

the reasons discussed above. H.V.F. was adjudicated dependent in October 2021 and

had remained in the same foster home since she was removed from Mother’s care.

Thus, by the time of the custody hearing, H.V.F. had been in MCCS’s custody for almost

all of her short life.

d. R.C. 2151.414(D)(1)(d) (Need for Legally Secure Placement)

{¶ 51} The trial court found that H.V.F. needed a legally secure placement, noting

her condition at removal and her many physical and developmental needs. The court

further stressed H.V.F.’s failure to interact with providers when Father was present, as

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well as Father’s belief that H.V.F. did not need all the medical services with which she

was involved. Order at 8. The court also pointed to the lack of any maternal or paternal

relatives who were able or willing to assume the child’s care. Id. These observations

were supported by the record. Tr. at 123 and 138. See also the discussion regarding

H.V.F.’s special needs, above.

(e) R.C. 2151.414(D)(1)(e) (R.C. 2151.414(E)(7)-(11) Factors)

{¶ 52} The factors in this part of the statute “refer to matters like prior convictions

for various crimes involving the child, the child's siblings, or a former child living in the

parents’ home; parental withholding of food or medical treatment; a parent's rejection of

certain specified drug or alcohol abuse treatment; parental abandonment of the child; and

a parent's prior involuntary termination of parental rights.” In re K.P., 2023-Ohio-90, ¶ 69

(2d Dist.) The trial court remarked that none of these factors applied, and Father does

not suggest that they do. Therefore, we need not consider these factors.

{¶ 53} In view of the above discussion, the court’s decision that granting

permanent custody to MCCS was in the child’s best interest was supported by ample

evidence and was not against the manifest weight of the evidence. Moreover, contrary

to Father’s claim, he was not being disqualified due to his criminal history. Instead, while

Father made some effort, he did not substantially complete his case plan. Even if Father

had (which was not the case), we have stressed that “ ‘[a] parent's case plan compliance,

while it may be relevant to a best interest analysis, does not automatically override a trial

court's decision regarding what is in a child's best interests.’ ” In re T.D., 2016-Ohio-

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7245, ¶ 12 (2d Dist.), quoting In re M.B., 2016-Ohio-793, ¶ 59 (4th Dist.) “When the

focus is on the child's best interest, a trial court conceivably could terminate parental rights

even if a parent completed all of her case-plan objectives.” Id. “The case plan is simply

‘a means to a goal, but not the goal itself,’ and other considerations still may justify an

award of permanent custody to a children-services agency.” Id., quoting In re J.H.,

2016-Ohio-640, ¶ 47 (12th Dist.).

{¶ 54} Father’s actions during the case failed to demonstrate that he would be able

to substantially remedy the conditions that caused H.V.F. to be placed outside the home.

Although Father focuses on the fact that H.V.F. was removed due to Mother’s problems,

the reality was that Father was not available to assume the child’s care due to his own

choices. Furthermore, as MCCS notes, Father’s parole violations indicate “a legitimate

risk of reincarceration.” MCCS Brief, p. 13. We have already discussed that fact.

{¶ 55} Father’s final point is that he is a suitable parent and should not be deprived

of parental rights just because the foster parents formed a deep bond with H.V.F. The

court did not focus on the bond’s depth in terms of deciding whether Father or the foster

parents were more suitable. The court did not even mention such a point. Instead, it

simply discussed the bond in the context of considering H.V.F.’s relationships with others,

as is required by R.C. 2151.414(D)(1)(a).

{¶ 56} It is true that the Supreme Court of Ohio has “long held that parents who

are ‘suitable’ have a ‘paramount’ right to the custody of their children.” In re B.C., 2014-

Ohio-4558, ¶ 19, quoting In re Perales, 52 Ohio St.2d 89, 97 (1977). However, the court

also stressed in B.C. that “ ‘ “the natural rights of a parent are not absolute, but are always

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subject to the ultimate welfare of the child, which is the polestar or controlling principle to

be observed.” ’ ” Id. at ¶ 20, quoting In re Cunningham, 59 Ohio St.2d 100, 106 (1979).

(Other citation omitted.) “Ultimately, parental interests are subordinate to the child's

interest when determining the appropriate resolution of a petition to terminate parental

rights.” Id. Accord Matter of B.T., 2023-Ohio-2082, ¶ 38 (2d Dist.).

{¶ 57} As noted, by statute, courts must consider a child’s relationship with others,

and that would include how bonded a child is to these individuals. That is not the same

thing as making decisions on parental termination based on whether someone other than

a parent is financially or intellectually better positioned to raise a child, as Father suggests.

There was no indication of that in the trial court’s decision.

{¶ 58} Based on the preceding discussion, the trial court’s decision was not against

the manifest weight of the evidence. Father’s sole assignment of error, therefore, is

overruled.

III. Conclusion

{¶ 59} Father’s assignment of error having been overruled, the judgment of the

trial court is affirmed.

.............

EPLEY, P.J. and TUCKER, J., concur.