In re R.W.H., 28880

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, J.
Citation2021 Ohio 4024
PartiesIN RE: R.W.H.
Docket Number28880
Decision Date12 November 2021



No. 28880

Court of Appeals of Ohio, Second District, Montgomery

November 12, 2021

Appeal from Common Pleas Court-Juvenile Division Trial Court Case No. 2016-7436

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Attorney for Appellee, Montgomery County Department of Job & Family Services

MARIA L. RABOLD, Atty. Reg. No. 0089080, Attorney for Appellant, Father




{¶ 1} Father appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which granted permanent custody of his now four-year-old son, R.W.H., to Montgomery County Children Services ("MCCS"). The trial court's judgment also denied a motion for legal custody filed by R.W.H.'s paternal grandmother. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} In early December 2016, MCCS received a report that R.W.H. and his biological mother ("Mother") tested positive for cocaine at the time of R.W.H.'s birth. Shortly after receiving this report, on December 7, 2016, MCCS filed a complaint requesting that the trial court adjudicate R.W.H. as an abused and dependent child and for the court to grant MCCS temporary custody of R.W.H.

{¶ 3} In support of its complaint, MCCS alleged that Mother had a history of substance abuse and had admitted to using drugs while she was pregnant with R.W.H. MCCS's complaint also alleged that Mother has had prior cases with Greene County Children Services and that she does not have custody of her three older children. MCCS's complaint further alleged that Father, whose paternity had not yet been established, was a registered sex offender with multiple substance abuse and domestic violence charges. The record indicates that in 1999 and 2000, Father was convicted of


corruption of a minor (now known as unlawful sexual conduct with a minor[1]) in violation of R.C. 2907.04(A), as well as multiple counts of complicity to corruption of a minor in violation of R.C. 2923.03(A)(1). See State's Exhibit Nos. 23 and 24. As a result of these convictions, Father has a continuing duty to register as a sex offender.

{¶ 4} On December 7, 2016, the trial court held a shelter care hearing and granted MCCS interim temporary custody of R.W.H. Around that same time, both Mother and Father recommended to MCCS that Father's adult daughter and R.W.H.'s half-sister, S.R., would be a good placement option for R.W.H. However, after being approached about taking care of R.W.H., S.R. and her husband, C.R., initially declined because they did not want to remove R.W.H. from the loving foster home in which he had been placed. S.R. also indicated that she had recently given birth to her third son following a complicated pregnancy and that she could not physically or emotionally care for another infant at that time. S.R. and C.R., however, expressed interest in potentially taking care of R.W.H. in the future.

{¶ 5} On February 1, 2017, the trial court issued a decision adjudicating R.W.H. as an abused and dependent child. The trial court also granted MCCS temporary custody of R.W.H. Approximately 11 months later, on October 27, 2017, MCCS filed a motion for permanent custody of R.W.H. prior to the expiration of its temporary custody. Two months after MCCS moved for permanent custody, Father's paternity was established in December 2017. The delay in establishing Father's paternity was due to MCCS's having


difficulty obtaining Mother's DNA.

{¶ 6} Once Father's paternity was established, Father expressed his desire to have custody of R.W.H. and requested visits with him. Father first visited R.W.H. on December 27, 2017, along with his daughter, S.R. Sometime after this visit, Father's relationship with S.R. deteriorated and Father no longer wanted S.R. to have custody of R.W.H. As a result, on February 20, 2018, Father filed a motion seeking an order granting legal custody of R.W.H. to his own mother, R.W.H.'s paternal grandmother, G.A. On March 23, 2018, G.A. filed a pro se motion to intervene in the case, as well as a motion for legal custody of R.W.H. The trial court granted G.A.'s motion to intervene and G.A. was added as a party to the case on May 30, 2018.

{¶ 7} On April 17, 2018, MCCS moved for an extension of temporary custody of R.W.H. On May 30, 2018, the trial court granted MCCS's requested extension and MCCS's motion for permanent custody was withdrawn. Around that same time, S.R. asked MCCS to commence a home study for purposes of having R.W.H. placed in her home. Thereafter, MCCS completed home studies for both S.R. and G.A. The record indicates that MCCS ultimately disapproved G.A.'s home study, but approved S.R.'s. R.W.H. was thereafter placed in S.R.'s home on September 27, 2018, and Father and G.A. continued to have weekly supervised visits with R.W.H. at MCCS's visitation center.

{¶ 8} On June 5, 2018, MCCS filed a motion requesting that the trial court grant legal custody of R.W.H. to S.R. and S.R.'s husband, C.R. On August 1, 2018, G.A. filed a second motion for legal custody of R.W.H. with the assistance of counsel. The following month, on September 19, 2018, Father moved to have S.R. and C.R.'s visitation with R.W.H suspended. The trial court scheduled the aforementioned motions for a


hearing on February 11 and 13, 2019. However, on January 25, 2019, Father filed an affidavit of disqualification against the presiding judge, thereby causing the hearing to be continued. Father's affidavit of disqualification was ultimately denied by the Supreme Court of Ohio on February 12, 2019, and the hearing was rescheduled to take place June 24, 2019.

{¶ 9} On April 24, 2019, S.R. and C.R. became a licensed foster-to-adopt family. Three weeks later, on May 13, 2019, MCCS filed a motion for permanent custody of R.W.H. and later withdrew its motion requesting that the trial court grant legal custody of R.W.H. to S.R. and C.R. After several more delays, including two more affidavits of disqualification filed by Father, both of which were denied by the Supreme Court of Ohio, the trial court held a four-day hearing on July 6 through 9, 2020. The hearing addressed MCCS's motion for permanent custody, G.A.'s motion for legal custody, and Father's motion to suspend S.R. and C.R.'s visitation.

{¶ 10} During the hearing, MCCS presented testimony from R.W.H.'s gastroenterologist, Dr. Shelly Rustagi; MCCS social program specialist, Dr. Dawn Morton; MCCS caseworkers Bradley Woods and Catelin Covell; and R.W.H.'s half-sister and current foster parent, S.R. G.A. and Father, who were both acting pro se during the hearing, testified on their own behalf. Father also called one witness, Officer Jeff Heiber of the Dayton Police Department. R.W.H.'s guardian ad litem ("GAL") also testified at the hearing and provided a custody recommendation to the trial court. The following is a summary of all the testimony and evidence that was presented at the hearing.

Dr. Shelly Rustagi


{¶ 11} Dr. Rustagi testified that she was a gastroenterologist at Dayton Children's Hospital who diagnosed R.W.H. with a swallowing disorder known as dysphagia. Dr. Rustagi explained that dysphagia can cause choking and liquid to enter the windpipe and lungs. Dr. Rustagi also explained that dysphagia can result in inflammation of the breathing passages and chronic lung disease.

{¶ 12} Dr. Rustagi testified that, because R.W.H. has dysphagia, great care needs to be taken with regard to his diet and the size of the food he consumes. Dr. Rustagi testified that a prescribed thickener must be administered to R.W.H.'s liquids. Dr. Rustagi also testified that R.W.H.'s food must be cut up into small pea-sized bites to prevent choking and that R.W.H must be carefully monitored while eating and drinking. Dr. Rustagi additionally recommended that R.W.H.'s caretakers keep a daily log of the food he consumes due to his suffering from severe diarrhea. Dr. Rustagi indicated that the food log would help determine what foods caused R.W.H.'s diarrhea.

{¶ 13} Dr. Rustagi testified to writing several letters detailing her feeding and food log recommendations due to concerns that her recommendations were not being adhered to during visitations with Father and G.A. Dr. Rustagi identified her letters at trial, and the letters were admitted into evidence as State's Exhibit Nos. 7 through 12. Dr. Rustagi testified that Father had expressed a belief that she had misdiagnosed R.W.H. with dysphagia; Father approached her about obtaining a second opinion, and she told Father she had no problem with him doing so. Dr. Rustagi, however, testified that, to her knowledge, no second opinion had ever been obtained by Father.

Dr. Dawn Morton


{¶ 14} Dr. Dawn Morton testified that she was an MCCS Social Program Specialist in MCCS's visitation center. Dr. Morton testified that she performed visitation assessments for Father, G.A., and S.R. by observing their interactions with R.W.H. With regard to Father, Dr. Morton testified that Father appeared bonded to R.W.H. and that Father clearly wanted a relationship with R.W.H. Dr. Morton testified that Father was playful with R.W.H., provided toys for him, and held and supported R.W.H. while he attempted to walk.

{¶ 15} Dr. Morton, however, testified that Father had reoccurring negative emotional expressions during visitations that were challenging for Father to control. Dr. Morton testified that Father appeared to be unaware of the impact that his negative emotional expressions had on R.W.H. Dr. Morton also testified that there were only small amounts of time during which Father was positively engaged with R.W.H., as Dr. Morton indicated that Father spent most of his visits complaining about MCCS.

{¶ 16} Dr. Morton also testified that...

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