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In re A.E.B.

Court of Appeals of Ohio, Seventh District, Jefferson

May 31, 2018


          Opinion Filed Date June 12, 2018

          Civil Appeal from the Juvenile Court of Jefferson County, Ohio Case No. 2017 DN 00010

          Atty. Gregory J. Wysin, for Appellant and Atty.

          Amanda J. Abrams, for Appellee.

          BEFORE: Carol Ann Robb, Gene Donofrio, Kathleen Bartlett, Judges.


          Robb, P.J.

         {¶1} Appellant-father appeals the decision of the Jefferson County Common Pleas Court, Juvenile Division terminating his parental rights and granting permanent custody of the child A.E.B. to Children Services. He argues the decision was against the manifest weight of the evidence based upon his allegation that the agency failed to show the absence of a relative who was able to take legal custody of the child, citing a statute pertaining to an orphaned child. For the following reasons, the trial court's decision is affirmed.


         {¶2} When the child was born on March 12, 2017, he tested positive for cocaine, benzodiazapene, and Subutex. The child was transferred to a hospital in Pittsburgh as he required treatment for withdrawal, which thereafter continued at a children's transitional center until his release on April 30, 2017, when he entered foster care. Upon the child's birth, the mother expressed her wish to permanently surrender her parental rights and allow the child to be placed for adoption. She received surrender counseling. No father was named on the birth certificate, and the mother said the father was unknown. The day after the child's birth, Appellant called the agency stating he may be the father of the child. He did not provide an address or phone number.

         {¶3} On March 21, 2017, the agency filed a dependency complaint and sought permanent custody or in the alternative temporary custody. The same day, the court conducted a shelter care hearing and a probable cause hearing. The mother completed the permanent surrender in open court. The court found probable cause the child was dependent and granted emergency temporary custody to the agency. The agency filed a motion for paternity testing of Appellant. The adjudicatory hearing was set for April 7, 2017; Appellant was originally served by publication as his address was unknown. On March 27, 2017, Appellant appeared at the agency and signed a notice of address and phone number, which was filed with the court. At this time, Appellant was personally served with the summons, which explained how to obtain court-appointed counsel.

         {¶4} Appellant appeared unrepresented at the April 7, 2017 hearing and agreed to genetic testing, which the court ordered in a judgment entry filed the same day. The adjudicatory hearing was continued as Appellant asked for time to obtain counsel, but he then appeared unrepresented at the May 5, 2017 rescheduled adjudicatory hearing. An agency caseworker testified about the child's situation. On May 9, 2017, the child was adjudicated dependent in a magistrate's decision, which found the agency made reasonable efforts to prevent placement of the child outside of the home including a search for relatives. No objection to the magistrate's decision was filed, and the court entered judgment on the dependency adjudication on May 24, 2017.

         {¶5} Appellant presented himself at the agency for genetic testing on May 17, 2017. However, he did not appear for the dispositional hearing two days later. In a May 22, 2017 decision, the magistrate granted temporary custody to the agency, stating the agency's reasonable efforts included a search for relatives. No objection was filed, and the court entered judgment on the temporary custody disposition on June 6, 2017.

         {¶6} The genetic test result (dated May 19, 2017) confirmed Appellant's paternity and was mailed to Appellant by the agency at the residence he provided in the notice of address. The result was filed with the court, and on May 30, 2017, the court entered a paternity judgment. The caseworker thereafter repeatedly found Appellant's phone number unreachable and repeatedly attempted to visit the address he provided. On one visit, a person told the caseworker Appellant no longer lived there but a message would be delivered. Appellant called the caseworker two days later and asked why she was looking for him. (Tr. 20). During this June 14, 2017 phone conversation, Appellant admitted he received (from his sister) the paternity result mailed to the address on file. (Appellant's sister testified she previously lived at that address.)

         {¶7} On June 15, 2017, Appellant attended a meeting at the agency with his girlfriend, and a case plan for reunification and visitation was discussed. When asked why he did not contact the agency after receiving the paternity result, he said he had been busy and left his phone in a friend's car. (Tr. 21). He was unemployed and occasionally worked for a temporary job service. He reported he was living at his girlfriend's apartment and disclosed this was contrary to the rules of her public housing tenancy as a result of his criminal record. (Tr. 22). He was fingerprinted for a criminal background check which showed he was 25 years old and had convictions for: assault (charged in 2016, 2014, and 2013); fourth-degree felony carrying a concealed weapon (charged in 2011 and 2012), the second of which resulted in him serving time in prison in 2013/2014; and fifth-degree felony receiving stolen property for which he served time in prison in 2015/2016. (Ex. D).

         {¶8} During the meeting at the agency, Appellant named a clinic in Pittsburgh which he said was treating him for opiate addiction by providing him Suboxone. The agency instructed him to release his medical information from the clinic, but he never provided evidence he was being treated by this clinic. The agency also instructed him to submit to urine testing the next day in order to determine whether the Wednesday visitations would be supervised or unsupervised, but he never provided a urine test result. (Tr. 22, 36-38). At the June 15, 2017 meeting, Appellant informed the agency he did not have relatives willing to file for custody or to come speak with the agency regarding the child, but he said he was going to file a motion for custody in the juvenile court. (Tr. 27, 32). He did not do so, and he did not return to the agency.

         {¶9} The caseworker unsuccessfully attempted a home visit at the girlfriend's apartment and then called the father's girlfriend on June 26, 2017. Appellant returned the call asking why she was calling him. (Tr. 22). She informed him the clinic would not release any information to the agency with a faxed release as the clinic's policy required any client to personally present the release to the clinic. When ...

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