The opinion
[Cite as In re S.H., 2025-Ohio-2338.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.H. AND Y.H : APPEAL NO. C-250137
TRIAL NO. F/05/3098 Z
:
: JUDGMENT ENTRY
This cause was heard upon the appeal, the record, and the briefs.
The judgment of the trial court is affirmed for the reasons set forth in the
Opinion filed this date.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs are taxed under App.R. 24.
The court further orders that 1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial
court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 7/2/2025 per order of the court.
By:_______________________
Administrative Judge
[Cite as In re S.H., 2025-Ohio-2338.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.H. AND Y.H. : APPEAL NO. C-250137
TRIAL NO. F/05/3098 Z
:
: OPINION
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 2, 2025
Christopher P. Kapsal, for Appellant Father,
Adams Law, PLLC, and Aaren E. Meehan, for Appellee Mother,
Connie M. Pillich, 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 Masha Pupko, Assistant
Public Defender, for Appellee Guardian Ad Litem.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} In this appeal, Father challenges the juvenile court’s judgment granting
the Hamilton County Department of Job and Family Services (“HCJFS”) permanent
custody of his children, Y.H. and S.H. Father asserts that the juvenile court’s judgment
is not supported by sufficient evidence and is against the weight of the evidence.
{¶2} We overrule the assignment of error and hold that the judgment was
supported by sufficient evidence and was not against the manifest weight of the
evidence. Despite his case plan requiring periodic drug screenings, Father failed to
attend any screenings. Moreover, he was indicted on felony drug-trafficking charges
during the pendency of the case. This was sufficient evidence to support the juvenile
court’s findings that the children could not or should not be placed with Father and
that awarding HCJFS permanent custody of the children was in their best interest.
{¶3} We accordingly affirm the juvenile court’s judgment.
I. Factual and Procedural History
Y.H.
{¶4} In July 2022, HCJFS moved for interim custody of Y.H., a newborn girl,
after Y.H. tested positive for fentanyl, cocaine, and buprenorphine at birth. HCJFS
noted that Y.H.’s mother (“Mother”) had two prior children removed from her custody
due to her substance abuse. In its complaint for custody, HCJFS identified Father as
Y.H.’s alleged father.
{¶5} The trial court granted HCJFS interim custody of Y.H. in July 2022 and
adjudicated Y.H. abused and dependent in October 2022. The juvenile court
journalized a case plan for reunification. The juvenile court’s January 2023 order
noted that Mother and Father had been unresponsive with HCJFS and had not
participated in case-plan services or visited with Y.H.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} In June 2023, HCJFS moved for permanent custody of Y.H. Later that
month, Father filed a petition for permanent custody of Y.H.
S.H.
{¶7} In September 2023, Mother gave birth to S.H. The juvenile court
granted an emergency ex parte order placing S.H. in HCJFS’s custody because he
tested positive for cocaine and buprenorphine. In October 2023, HCJFS filed a
complaint for temporary custody of S.H., and later amended the complaint to seek
permanent custody. The juvenile court adjudicated S.H. abused, neglected, and
dependent in April 2024.
Custody Hearing
{¶8} A magistrate held a consolidated hearing on HCJFS’s motion for
permanent custody of Y.H. and its complaint for permanent custody of S.H.
Caseworker testimony
{¶9} Bailey Brown, an HCJFS caseworker, handled Y.H. and S.H.’s case.
Brown explained that Y.H. came into the court system after she tested positive for
several substances at birth. Brown initially testified that the case plan was the same
for Mother and Father. Both were required to complete a diagnostic assessment of
functioning (“DAF”), follow all treatment recommendations, take parenting classes,
submit to random toxicology screenings, participate in visitation, obtain stable
housing and income, and attend monthly meetings with a caseworker. Brown later
clarified that the case plan did not require Father to take parenting classes as Father’s
actions provided no basis to believe classes were necessary. Brown agreed that the case
plan was the same for Mother and Father despite Brown not observing or suspecting
Father of being under the influence of any substances.
{¶10} Brown testified that at the beginning of the case, Father did not
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OHIO FIRST DISTRICT COURT OF APPEALS
participate in any case-plan services. She explained that “he was waiting on paternity
to be established for [Y.H.] before he would participate.” Brown stated that after “six-
ish months,” Father began participating and completed a DAF. The DAF assessor had
no recommendations for Father.
{¶11} Father began visiting Y.H. around November 2023 and was “pretty
consistent.” Brown testified that the parents’ visitation level was “facilitated.” (No one
defined “facilitated,” but the context suggests that it means visits were held at the
Family Nurturing Center (“FNC”) and an employee remained in the room to supervise
the family.) The supervision level did not change over the course of the case. Father’s
conduct during the visits was appropriate and Brown had no evidence that Father
posed a danger to the children. In March 2024, Father told Brown that he was looking
for housing.
{¶12} Brown arranged drug screenings for Father, but he did not attend any
of them. Father told Brown that, on some of the occasions, he had other obligations
that prevented him from making the screenings and that “transportation was an
issue.” Brown arranged transportation for Father to attend the screenings;
nevertheless, Father failed to attend any screens.
{¶13} Brown testified that in October 2022, HCJFS performed and approved
a home study for a family member. But HCJFS decided not to place Y.H. with the
family member because Y.H. had been placed with the same foster parent since July
2022 and the family member “didn’t know a lot of the substance abuse issues that was
going on” involving Mother.
{¶14} Brown testified that she believed Father might “allow[] Mother access
to the children.” She explained, “I never knew, like, what their relationship was. I know
that getting to visits at the Family Nurturing Center, [they] would drive together.”
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OHIO FIRST DISTRICT COURT OF APPEALS
Brown believed that Father did not recognize Mother’s drug addiction as a problem.
She explained that despite S.H. testing positive for controlled substances at birth,
Father did not “express concern or an understanding about” Mother’s substance
abuse.
{¶15} Rachel Howell, an FNC floor and visitation supervisor, described an
incident during a February 2024 visit between both parents and the children. While
holding S.H., Mother appeared to have difficulty sitting up straight, was swaying in
her chair, and her eyes were closing. Howell believed Mother “possibly could drop the
baby,” so she privately spoke with Mother and escorted her to the bathroom. Howell
testified that Mother continued to appear disoriented, tired, and unsteady. When
Mother exited from the bathroom, she threw something in a trashcan. Howell later
retrieved the item—it was a syringe. Howell testified that Father “was very receptive”
when she discussed Mother’s behavior with him.
{¶16} Madelynn Yeager, an HCJFS caseworker, began working on the
children’s case beginning in May 2024. During Yeager’s time assigned to the case,
Father continued visiting with the children, but he did not appear for required drug
screenings. Father lacked permanent housing: he stayed at his mother’s house, a
friend’s house, or hotels “from time to time.” Yeager did not know whether Father had
stable housing at the time of the trial.
{¶17} Yeager testified that Y.H. and S.H. had lived with the same foster parent
since their respective discharges from the hospital after their births. Yeager believed
the children’s foster parent was willing to adopt the children.
{¶18} Yeager did not believe that either Y.H. or S.H. could be reunified with
either parent within a reasonable time because Mother was incarcerated, struggled
with substance use, and lacked housing. As to Father, Yeager pointed to his lack of
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OHIO FIRST DISTRICT COURT OF APPEALS
drug-screen attendance. Yeager explained that Father’s visitation privileges had not
been expanded because Father had not attended drug screens and continued contact
with Mother, including taking her to visits. Yeager testified that HCJFS would “have
to see that [Father] can be protective of his children,” including by acknowledging
Mother’s substance abuse and the need to appreciate the danger of having young
children exposed to someone who is actively abusing substances.” When asked what
Father needed to do to get expanded visits, Yeager testified that she wanted him to
continue to have visits and establish his sobriety by attending drug screens.
{¶19} Yeager testified that HCJFS has no internal services to address housing
barriers and instead refers parents to outside services. When Yeager asked Father to
provide proof of income, Father explained that he could not produce pay stubs because
he was “paid under the table” on cash-transfer apps for remodeling and painting work.
Yeager did not ask to see screenshots from the app or to have Father’s employer’s
contact information.
{¶20} Between the first and second days of trial (about a month), the State
charged Father with several felonies, including drug trafficking and aggravated
possession of drugs. Father appeared at trial on both days, as he had posted bond.
Father’s testimony
{¶21} At trial, Father agreed that he had not submitted to any drug screens.
He explained, “I didn’t see a reason for a drug test, but I was going to cooperate. But,
at the same time, [HCJFS] wanted me to get gainful employment, find somewhere to
live, which I was doing, and it just seemed like, you know, as far as our schedules
wasn’t coinciding.” Father testified that he told Brown which days he was working or
available, but “she just basically seemed to, you know, just set them when she wanted
to set them.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Father believed that his visits with Y.H. and S.H. were going well. He
visited the children once a week at FNC for two hours. Father’s visits were interrupted
by his incarceration.
{¶23} Father stated that he recently obtained independent stable housing, but
the caseworker had not come to view it. Although they had set a time for the
caseworker to view the home, “that was kind of disrupted due to my situation.”
{¶24} Father told the juvenile court that he wanted custody of his children. “I
want them to be where, you know, they’re developing and they’re able to grow and
where they’re loved, and I believe – I know that they would get that if they were with
me.” He said his relationship with Mother was “[s]trained but we still communicate.”
If given custody of the children, Father would “not deny her to see her children . . . but
I don’t think I would let her come to the house to visit” and instead would let her see
them somewhere public.
{¶25} When asked about Mother’s behavior during the February 2024 visit
(the visit where Howell found a syringe in the bathroom after witnessing Mother
holding the baby while swaying in her chair with her eyes closing), Father explained
that Mother was “like a night owl” and believed that she was simply tired and
disoriented. He did not have any concerns with the way Mother was acting, but “when
it was pointed out to me as far as her falling asleep, . . . I try to do my best to, you know,
tell her like, hey, stand up, do something.” Father did not believe Mother was under
the influence of drugs at the visit because, “I don’t think she would do that and come
and see her children.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Father had arranged to attend a 13-week tech-support training, to which
he was referred through the juvenile court magistrate. But that training had been
delayed due to his incarceration.
The juvenile court granted HCJFS custody of both children
{¶27} The magistrate issued a decision granting permanent custody of Y.H.
and S.H. to HCJFS. Father and Mother objected. The juvenile court overruled their
objections and adopted the magistrate’s decision in full. Only Father appealed.
II. Analysis
{¶28} In his sole assignment of error, Father asserts that the juvenile court
erred in granting permanent custody of Y.H. and S.H. to HCJFS.
A. Standard of review
{¶29} We review the juvenile court’s judgment awarding HCJFS permanent
custody of the children under sufficiency-of-the-evidence and manifest-weight-of-the-
evidence standards. In re Z.C., 2023-Ohio-4703, ¶ 11. Though Father argues these
issues together, “Sufficiency of the evidence and manifest weight of the evidence are
distinct concepts and are ‘“both quantitatively and qualitatively different.”’” Id. at ¶ 13,
quoting Eastley v. Volkman, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78
Ohio St.3d 380 (1997), paragraph two of the syllabus.
{¶30} A sufficiency-of-the-evidence review is “a test of adequacy” under which
appellate courts ask whether there is legally sufficient evidence on each element
necessary to support the judgment. Id., quoting Thompkins at 386. A manifest-weight-
of-the-evidence challenge, however, determines whether HCJFS met its burden of
persuasion at trial. State v. Hurt, 2024-Ohio-3115, ¶ 95 (1st Dist.). We independently
review the record, weigh the evidence, appraise witness credibility, and determine
whether the juvenile court plainly went astray, creating a manifest miscarriage of
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OHIO FIRST DISTRICT COURT OF APPEALS
justice. Id., quoting State v. Kizilkaya, 2023-Ohio-3989, ¶ 15 (1st Dist.), quoting State
v. Powell, 2020-Ohio-4283, ¶ 16 (1st Dist.).
{¶31} Though a manifest-weight review requires us to independently weigh
the evidence, we are mindful of the presumption in favor of the factfinder. In re Z.C.,
2023-Ohio-4703, at ¶ 14, quoting Eastley, 2012-Ohio-2179, at ¶ 21. “When confronted
with conflicting evidence, we interpret the evidence in a manner consistent with the
trial court’s judgment.” State v. Rose, 2024-Ohio-5689, ¶ 23 (1st Dist.). Courts afford
this deference because factfinders personally observe witness testimony when making
credibility determinations. In re Z.C. at ¶ 14.
B. Parental termination statutes
{¶32} Parents’ interest in their children’s care, custody, and control has long
been recognized by the Supreme Court of the United States as a fundamental liberty
interest. Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of Ohio has
described terminating one’s parental rights as “the family law equivalent of the death
penalty in a criminal case.” (Citations omitted.) In re Hayes, 79 Ohio St.3d 46, 48
(1997). Courts must afford parents all substantive and procedural protections allowed
by law. Id.
i. R.C. 2151.353(A)(4)
{¶33} The juvenile court’s initial disposition for S.H. was granting permanent
custody to HCJFS. R.C. 2151.353(A)(4) permits a juvenile court, after adjudicating a
child abused, neglected, or dependent, to make an initial disposition granting
permanent custody of a child to a public children services agency if it finds (1) under
R.C. 2151.414(E), the child cannot be placed with a parent in a reasonable time or
should not be placed with either parent, and (2) under R.C. 2151.414(D)(1), granting
the agency permanent custody is in the child’s best interest. Thus, when reviewing a
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OHIO FIRST DISTRICT COURT OF APPEALS
challenge to a juvenile court’s permanent-custody decision under R.C. 2151.353(A)(4),
we must look to R.C. 2151.414.
ii. R.C. 2151.414(B) and (E)
{¶34} Under R.C. 2151.414(B), after a hearing on a permanent-custody,
motion, the juvenile court may grant an agency permanent custody of a child if it
determines, by clear and convincing evidence, that (1) any of the five enumerated
factors under R.C. 2151.414(B)(1)(a)-(e) apply (“prong one”); and (2) permanent
custody is in the child’s best interest under R.C. 2151.414(D)(1) (“prong two”). In re
Z.C., 2023-Ohio-4703, at ¶ 7; R.C. 2151.414(B) and (D). Clear and convincing evidence
is the degree of proof that firmly convinces factfinders to believe the facts the
proponent attempted to establish. In re Z.C. at ¶ 7.
{¶35} Relevant here, if a juvenile court determines that R.C. 2151.414(B)(1)(a)
applies—the children should not be placed with either parent or cannot be placed with
either parent within a reasonable time—prong one is satisfied.1 But whether that
subsection applies requires the juvenile court to look to R.C. 2151.414(E).
{¶36} Under R.C. 2151.414(E), when a juvenile court holds a permanent-
custody hearing, considers all relevant evidence, and determines by clear and
convincing evidence that any factor listed in R.C. 2151.414(E)(1)-(15) exists as to both
parents, “the court shall enter a finding that the child cannot be placed with either
parent within a reasonable time or should not be placed with either parent.” Relevant
here, those factors are R.C. 2151.414(E)(1), (4), (10), and (16).
{¶37} R.C. 2151.414 (E)(1) asks if, after the agency removed a child from the
parent’s home and notwithstanding the agency’s reasonable case planning and efforts
1 Though the magistrate also found that Y.H. had been abandoned under R.C. 2151.414(B)(1)(b), we
need not consider that factor because R.C. 2151.414(B)(1)(a) is dispositive.
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OHIO FIRST DISTRICT COURT OF APPEALS
to help the parents remedy problems that initially caused the out-of-home placement,
the parents “continuously and repeatedly” fail to remedy those problems. To
determine whether the parents remedied the problems, the court must consider
whether the parents engaged in services and resources that the agency made available.
Id.
{¶38} R.C. 2151.414(E)(4) looks to whether the parents demonstrably lacked
commitment by “failing to regularly support, visit, or communicate with the child.”
R.C. 2151.414(E)(10) asks if the parents abandoned the child. And R.C. 2151.414(E)(16)
looks to any other relevant factor.
C. Clear and convincing evidence supported the juvenile court’s
judgment involving prong one
i. Father failed to properly object
{¶39} Regarding prong one of the permanent-custody framework—whether a
R.C. 2151.414(B)(1)(a)-(e) factor applied—the juvenile court determined that the
children could not be placed with either parent in a reasonable time or should not be
placed with either parent. R.C. 2151.414(B)(1)(a).
{¶40} Father’s objections correctly cited the statutory provisions and noted
that both prongs must be supported by clear and convincing evidence. But Father’s
entire challenge to the magistrate’s prong-one findings stated, “For the first prong of
the analysis, pursuant to Magistrate’s Decision, neither Y.H. nor S.H. were in the
custody of HCJFS for 12 or more months out of a consecutive 22-month period at the
time in which the original motion to Modify TC to PC was filed.” Father did not
challenge the magistrate’s finding that the children cannot be placed in a reasonable
time, or should not be placed, with either parent.
{¶41} Parties must state their objections with specificity. Juv.R.
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OHIO FIRST DISTRICT COURT OF APPEALS
40(D)(3)(b)(ii); accord Civ.R. 53(D)(3)(b)(ii). Where a party fails to object to a
magistrate’s decision, the party forfeits the right on appeal to assign as error the trial
court’s adoption of the magistrate’s decision. In re P.E., 2023-Ohio-2438, ¶ 10 (12th
Dist.), citing In re Stephens, 2001 Ohio App. LEXIS 4451, *3 (12th Dist. Oct. 1 2001).
The result of a party’s failure to object to a magistrate’s decision confines the appellate
court to a plain-error review. See Juv.R. 40(D)(3)(b)(iv); see also In re P.E. at ¶ 10.
{¶42} Parental-termination proceedings are civil in nature. In re S.S., 2023-
Ohio-245, ¶ 28 (9th Dist.). The plain-error doctrine is disfavored in the civil context
and we may find plain error “only in the extremely rare case involving exceptional
circumstances” where the error “seriously affects the basic fairness, integrity, or public
reputation of the judicial process, thereby challenging the legitimacy of the underlying
judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123 (1997).
{¶43} On appeal, Father does not provide a plain-error argument. When an
appellant fails to argue that plain error occurred, an appellate court may choose to
disregard the challenge or consider whether plain error exists. See In re G.W., 2024-
Ohio-1551, ¶ 24 (1st Dist.); see also State v. Patton, 2021-Ohio-295, ¶ 25 (1st Dist.); In
re P.E. at ¶ 12 (“Nevertheless, because permanent custody decisions are tantamount
to the death penalty in a criminal case, this court will consider whether the juvenile
court’s decision granting permanent custody of P.E. to CCDJFS constitutes plain
error.”).
{¶44} Because parental rights are a long-standing, fundamental interest, we
review the trial court’s prong-one findings for plain error.
ii. The trial court did not plainly err
{¶45} The trial court determined that after Y.H. was removed from the home,
Father failed to remedy the problems that caused her to be removed. Father argues
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OHIO FIRST DISTRICT COURT OF APPEALS
that the evidence failed to establish that there was any “cause of removal that Father
needed to remedy, much less that he failed to do so.”
{¶46} HCJFS became involved with Y.H. and S.H. because both children
tested positive for controlled substances at birth. The evidence showed that Mother
had a history of addiction and failed to attend any drug screens or participate in any
case-plan services.
{¶47} Father’s case plan required him to complete a DAF, participate in
visitation, submit to random drug screenings, obtain stable housing and income, and
remain engaged with HCJFS. Father completed the DAF, which did not yield any
treatment recommendations. But Father failed to complete a single drug screen. The
trial court discussed Father’s possible substance abuse due to his criminal history
related to substance use, ongoing connection to Mother, failure to complete drug
screens, and his then-pending indictment for drug possession and trafficking.
{¶48} The court cited Father’s minimizing or denial of Mother’s drug
addiction. It cited an FNC visit supervisor’s testimony that Mother arrived at a visit
with the children when it appeared she was impaired by drugs. Father denied that
Mother’s physical state—being disoriented, swaying in a chair while holding the baby,
and not being able to keep her eyes open—was caused by drug use. The juvenile court
stated that Father “appeared to believe that Mother does not have a substance abuse
problem” despite the evidence that Y.H. and S.H. tested positive for drugs at birth.
{¶49} This constitutes clear and convincing evidence that Father failed to
remedy the problems that led to the children’s removal from the home—substance
abuse. Indeed, Father even refused to acknowledge that there was a problem. He failed
to attend a single drug screen as required by the case plan. While Mother’s drug
addiction may have initially driven the children’s removal, Father’s criminal history
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OHIO FIRST DISTRICT COURT OF APPEALS
provides a reasonable basis to require him to complete drug screens. And he was
indicted on drug-trafficking and possession charges during the pendency of the case.
{¶50} Considering Mother’s undisputed substance-abuse issues and Father’s
denial or minimization of her substance abuse, along with his criminal history
involving drugs and failure to complete drug screens, there was a reasonable
probability that Y.H. and S.H. would continue to be exposed to drugs were they placed
with Father. The trial court’s finding that Father had failed to remedy the issues that
led to the children’s removal is supported by clear and convincing evidence. We find
no plain error.
{¶51} R.C. 2141.414(E) requires the juvenile court to enter a finding that a
child cannot or should not be placed with either parent—thus satisfying prong one of
the permanent-custody framework—if it finds even one of the R.C. 2151.414(E) factors
apply. HCJFS established by clear and convincing evidence that R.C. 2151.414(E)(1)
applied. Although we discuss R.C. 2151.414(E)(10)—abandonment—in the best-
interest analysis, we decline to address the remainder of the R.C. 2151.414(E) factors.
{¶52} The juvenile court’s findings on prong one were supported by sufficient
evidence and were not contrary to the weight of the evidence. We hold that the juvenile
court correctly found that the children should not, or cannot within a reasonable time,
be placed with either parent. We turn to prong two of the statutory framework.
D. Prong Two: Best interest
{¶53} After determining that prong one of R.C. 2151.414(B)(1) was satisfied,
the juvenile court had to determine whether permanent custody to HCJFS was in the
children’s best interest. See R.C. 2151.414(B)(1); see also R.C. 2141.353(E). When
considering whether permanent custody to an agency is in the children’s best interest,
juvenile courts must consider “all relevant factors,” including, but not limited to, those
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OHIO FIRST DISTRICT COURT OF APPEALS
listed under R.C. 2151.414(D). “A child’s best interest is a ‘“‘fluid concept, as it involves
the child’s continually-changing need for appropriate care.’”’” In re K.D., 2024-Ohio-
5582, ¶ 50 (1st Dist.), quoting In re D.V., 2022-Ohio-1024, ¶ 12 (1st Dist.), quoting In
re D.M., 2020-Ohio-3273, ¶ 47 (1st Dist.), quoting In re G.L.S., 2018-Ohio-1606, ¶ 16
(9th Dist.). In weighing the best-interest factors, no one factor is given more weight.
In re N, 2024-Ohio-1492, ¶ 17 (1st Dist.).
i. R.C. 2151.414(D)(1)(a): Interactions and interrelationships
{¶54} R.C. 2151.414(D)(1)(a) requires juvenile courts to examine the
children’s “interaction[s] and interrelationship[s] . . . with the child’s parents, siblings,
relatives, foster caregivers and out-of-home providers, and any other person who may
significantly affect the child.”
{¶55} The juvenile court determined that Father was bonded with his
children, visits between Father and the children went well, and “he engages in age-
appropriate activities and provides appropriate care for them.” Father’s visits
remained facilitated and did not progress beyond the most restrictive level.
{¶56} The juvenile court noted Father did not visit with Y.H. or S.H. until
December 2023 and Father “acknowledged that it took multiple visits for Y.H. to
become comfortable with him.” But when paternity was established, Father
consistently visited the children. Though it is unclear exactly when paternity was
established, it appears to be at some point after June 14, 2023, when HCJFS filed its
motion for permanent custody. When there is a question about paternity, unless the
alleged parent delays establishing paternity, the juvenile court should not hold lack of
visitation against the alleged parent for the time before paternity is established.
{¶57} The juvenile court additionally found that Y.H. and S.H. lived together
in a foster home and shared a bond with their foster family, with whom they had lived
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OHIO FIRST DISTRICT COURT OF APPEALS
since shortly after their births. The foster family indicated they would adopt the
children if permanent custody were granted to HCJFS.
ii. R.C. 2151.414(D)(1)(b): The children’s wishes
{¶58} This factor requires juvenile courts to consider the children’s wishes
involving custody, unless the children are too young to express their wishes. The
children’s wishes may also be expressed through their guardian ad litem. See R.C.
2151.414(D)(1)(b).
{¶59} Here, the children were too young to directly express their wishes, but
below, their guardian ad litem recommended permanent custody. On appeal, the
guardian ad litem advocated in favor of affirming the juvenile court’s judgment.
iii. R.C. 2151.414(D)(1)(c): The children’s custodial history
{¶60} The juvenile court must consider the children’s custodial history,
including whether, relevant here, the child had been in the agency’s temporary custody
for 12 or more months of a consecutive 22-month period. R.C. 2151.414(D)(1)(c).
{¶61} Both children were placed in HCJFS’s temporary custody just days after
they were born and remained in the agency’s custody throughout the pendency of the
case. At the time the magistrate entered her decision, Y.H. had been in HCJFS’s
custody for 12 or more months; S.H. had not. Both children had been in substitute care
for more than 97 percent of their lives and the only home they had ever known was
their foster home.
{¶62} Father argues that the time children spend in substitute care should not
weigh against a parent “when they are using the time, as father here, to complete case
plan goals.” While his argument makes some sense, it does not help him. Father failed
to meaningfully engage in services, as he did not submit to a single drug screen.
Moreover, he continued to deny or minimize Mother’s substance-abuse problems and
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OHIO FIRST DISTRICT COURT OF APPEALS
failed to show that he would protect the children from any danger posed by her
addiction and drug use. While Father consistently visited the children and appeared
to be working toward establishing stable employment and housing, he failed to
complete any drug screens or demonstrate that he would keep the children away from
Mother if she continued to abuse drugs.
iv. R.C. 2151.414 (D)(1)(d): Need for a legally secure placement
{¶63} R.C. 2151.414(D)(1)(d) looks at a “child’s need for a legally secure
permanent placement and whether that type of placement can be achieved without”
granting the agency permanent custody of the children. This court has stated, “a legally
secure permanent placement ‘is more than a house with four walls. Rather, it generally
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., 2019-Ohio-
3637, at ¶ 42 (1st Dist.), quoting In re K.W., 2018-Ohio-1933, ¶ 87 (4th Dist.).
{¶64} The juvenile court determined that Father could not provide a legally
secure placement because he had not “meaningfully engaged in case plan services or
otherwise demonstrated behavioral changes that would be necessary to ensure the
safety and well-being of the children.” It further noted that Father’s “insight into
Mother’s substance abuse remains minimal,” and that Father lacked employment, had
only recently obtained housing, and was awaiting trial on felony drug charges.
{¶65} Father challenges the juvenile court’s reliance on his lack of case-plan
compliance. He notes that the children were removed from the home because of
Mother’s behavior, rather than the result of his own actions. He argues that his DAF
did not recommend drug screenings and HCJFS employees acknowledged that no one
had observed or reported Father using substances or being under the influence of
substances.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶66} Father also argues that the only evidence supporting the juvenile court’s
finding that he lacked insight into Mother’s substance abuse was testimony about the
February 2024 incident at FNC. We note that Father’s own testimony passed off her
behavior as her being a “night owl,” and he had no concern about “the way that she
was acting.” He did not believe that she was “inebriated” because he did not believe
she would visit her children in that condition. Additionally, Brown, an HCJFS
caseworker, testified that when she spoke with Father about Mother’s substance
abuse, he “didn’t seem like Mother had a problem.” After Father attended the hearing
in which the juvenile court adjudicated S.H. abused, neglected, and dependent based
on him testing positive for drugs at birth and spending two weeks in the NICU, Brown
spoke with Father about S.H.’s positive drug screen. Brown testified that Father
expressed no concern or understanding about Mother’s substance abuse. So, despite
unequivocal evidence that Mother was abusing substances during her pregnancy with
both children, and strong evidence that Mother used drugs during the FNC supervised
visit in February 2024, Father continued to lack any insight into her substance-abuse
issues.
{¶67} Father did not meaningfully comply with the case plan, as he failed to
submit to drug screenings. He denied or minimized Mother’s substance-abuse issues.
And Father was indicted on multiple felony-drug charges, including aggravated
trafficking, trafficking, and possession of illegal drugs, during the pendency of this
case. Clear and convincing evidence supports the juvenile court’s determination the
children need a legally secure permanent placement and that the only way to achieve
that placement was by awarding HCJFS permanent custody of the children.
v. R.C. 2151.414(D)(1)(e): Other factors—abandonment
{¶68} Juvenile courts must determine whether any factor contained in R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2151.414(E)(7) to (11) applies. Relevant here, R.C. 2151.414(E)(10) asks if the parents
had abandoned the child. Under R.C. 2151.011(C), if a parent fails to visit or maintain
contact with a child for more than 90 days, regardless of whether the parent later made
contact, a rebuttable presumption arises that the parent has abandoned the child.
{¶69} This court has explained that the presumption of abandonment is not
rebutted “‘by the mere fact that a father had not established paternity during the
period when he did not visit the child.’” In re C.R., 2022-Ohio-3540, ¶ 21 (1st Dist.),
quoting In re K.T.1, 2018-Ohio-4312, ¶ 79 (1st Dist.). But while the “legal status of the
parent is not always determinative” when analyzing abandonment,
“the conduct and belief or knowledge of the parent in relation to the child may also be
considered when determining whether a parent has abandoned his or her child.” Id.
Accordingly, in In re C.R., we held that the juvenile court erred in finding that a father
abandoned a child where the father had not acknowledged the child, had not held
himself out as the child’s father before paternity was established, credibly believed that
he could not have children, and filed for custody the same month that paternity was
established. Id. at ¶ 21.
{¶70} The magistrate determined that Father abandoned Y.H. That finding
appears to include the period before paternity was established, between her birth in
July 2022 and, at the latest, June 26, 2023, when Father filed a petition for custody of
Y.H. accompanied by a document showing that paternity had been established.
{¶71} Father did not visit Y.H. between her birth and when he established
paternity, more than the 90-day period that creates a rebuttable presumption of
abandonment under R.C. 2151.011(C). Although Father sought custody of Y.H. soon
after paternity was established, he offered no additional evidence to rebut the
presumption that he had abandoned Y.H.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶72} Assuming without deciding that Father’s seeking custody of Y.H. soon
after establishing paternity was enough to rebut the prepaternity-abandonment
presumption, his failure to visit or maintain contact with Y.H. for more than four
months between the date he established paternity—on or before June 26, 2023—and
when he began visitation with Y.H. in November or December 2023 created a
rebuttable presumption that he had abandoned Y.H. Father offered no testimony that
he asked HCJFS to set up visitation or that HCJFS delayed initiating visits. Thus,
Father failed to rebut the presumption that he abandoned Y.H.
Clear and convincing evidence supports the juvenile court’s best-interest findings
{¶73} Father clearly loves his children and has developed a bond with them.
But we hold that clear and convincing evidence supports the juvenile court’s
determination that it is in the children’s best interest to grant HCJFS permanent
custody. The primary issue in this case is substance abuse. The children were removed
from the home because they both tested positive for drugs when they were born. That
constitutes irrefutable evidence that Mother used drugs during her pregnancies and
that her drug use harmed the children.
{¶74} Yet, according to Brown’s testimony, Father expressed no concern about
Mother’s drug use in general, or its potential for exposing the children to danger.
Indeed, despite strong evidence that Mother was impaired during a February 2024
FNC visit, Father refused to believe that Mother was impaired, instead chalking her
behavior up to her being a “night owl.” This demonstrates Father’s lack of protective
capability. And despite HCJFS requiring drug screens, Father never submitted to a
single screen. The juvenile court’s best-interest determination is neither contrary to
the weight of the evidence nor supported by insufficient evidence.
{¶75} Because clear and convincing evidence supports the juvenile court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
judgment granting permanent custody of Y.H. and S.H. to HCJFS, we affirm the
juvenile court’s judgment and overrule Father’s assignment of error.
III. Conclusion
{¶76} For the foregoing reasons, we overrule Father’s assignment of error and
affirm the juvenile court’s judgment.
Judgment affirmed.
KINSLEY, P.J., and ZAYAS, J., concur.
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