In re J.B. , 2012 Ohio 3083 ( 2012 )

[Cite as In re J.B., 2012-Ohio-3083.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97744
IN RE: J.B., ET AL.
Minor Children
[APPEAL BY MOTHER, T.P.]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 10907586, AD 10907587, AD 10907588,
AD 10907589, AD 10907590, AD 10907591, and AD 11915014
BEFORE: Stewart, P.J., Jones, J., and Rocco, J.
RELEASED AND JOURNALIZED: July 5, 2012
ATTORNEY FOR APPELLANT MOTHER
Kevin H. Cronin
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES
William D. Mason
Cuyahoga County Prosecutor
BY: Laura M. Brewster
Assistant County Prosecutor
Cuyahoga County Department of Children
and Family Services
3955 Euclid Avenue
Cleveland, OH 44115
GUARDIAN AD LITEM FOR CHILDREN
Paul Berman
24105 Duffield Road
Cleveland, OH 44122
MELODY J. STEWART, P.J.:
{¶1} Appellant-mother T.P. appeals from juvenile division orders (consolidated for
appeal) that granted permanent custody of seven of her children to the Cuyahoga County
Department of Children and Family Services (the “agency”). Her sole assignment of
error is that the court’s factual findings were against the manifest weight of the evidence.
We have expedited the hearing and disposition of these appeals as required by App.R.
11.1(D).
I
{¶2} In April 2010, when the agency filed the original complaint for temporary
custody, appellant had six children ranging in age from 13 years old to 8 months old.
She gave birth to the seventh child after the initial complaint had been filed and while
incarcerated on theft charges.
{¶3} Two men established paternity for six of the children; a third male was the
putative father of the oldest child.
{¶4} The children were in the care of a paternal grandmother during the mother’s
incarceration, but the paternal grandmother informed the agency that she could no longer
provide for them. The children were found to be dependent and placed in the agency’s
temporary custody. In April 2011, the agency sought permanent custody of the children.
In an amended complaint, the agency alleged that the father of the four youngest children
had been convicted of sexual offenses against the oldest child. It also alleged that an
adult sibling of the children had also been sexually abused by the father of the oldest
child. The agency further alleged that the mother had been found guilty of child
endangering under R.C. 2919.22(A) for failing to protect the oldest child from the sexual
abuse. The mother has an anticipated release date of February 2014. Finally, the
agency alleged that this was the second custody episode for the mother — four of the
children that had earlier been placed in the temporary custody of the agency had been
removed because of the mother’s homelessness.
II
{¶5} The court granted the agency’s motion for permanent custody under R.C.
2151.414(B)(1). That section states that the court may grant permanent custody of a
child if it determines at a hearing that the motion for permanent custody is in the best
interest of the child and:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and 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.
{¶6} The court found that despite reasonable case planning and diligent efforts by
the agency to assist the parents in remedying the problems that initially caused the
children to be placed outside the home, the mother had failed continuously and repeatedly
to substantially remedy the conditions that caused the children to be placed outside the
home. R.C. 2151.414(E) lists factors which, if found to exist by clear and convincing
evidence, require the court to “enter a finding that the child cannot be placed with either
parent within a reasonable time or should not be placed with either parent.” The court
cited R.C. 2151.414(E)(6) in reference to the mother’s conviction for child endangering
under R.C. 2919.22(A).
{¶7} The mother argues that the agency engaged in a “hurry up” schedule that
deprived her of the ability to comply with the case plan goal of reunification. She claims
that in the short period of time allotted to her by the agency, she took significant steps
toward reunification but that the agency demonstrated a lack of commitment to pursuing
opportunities that might have constituted factors in her support of defeating the agency’s
motion for permanent custody.
{¶8} Regardless of what progress the mother made in completing the case plan
objectives, we must reject her argument because “R.C. 2151.414(E) requires the trial
court to find that the child cannot be placed with either of his or her parents within a
reasonable time * * * once the court has determined * * * that one or more of the * * *
factors exist.” In re William S., 75 Ohio St.3d 95, 99, 661 N.E.2d 738 (1996); see also In
re T.G., 8th Dist. No. 90392, 2008-Ohio-2034, ¶ 42. The mother’s conviction for child
endangering in violation of R.C. 2919.22(A) is undisputed. That factor having been
established by clear and convincing evidence, the court was required to find that the
children could not be placed with her within a reasonable period of time.
{¶9} Regarding the best interest of the children, the court was required to consider
all of the relevant factors listed in R.C. 2151.414(D)(1). Clear and convincing evidence
showed that the children had no interaction with the mother following her incarceration
and that they would have no interaction with her until her release from prison in February
2014 [R.C. 2151.414(D)(1)(a)]; the guardian ad litem for the children recommended that
the agency be granted permanent custody [R.C. 2151.414(D)(1)(b)]; and the children
needed a legally secure permanent placement given the mother’s past failure to protect
one of the children from sexual abuse, the special needs of the three youngest children
required care that appeared to be beyond what the mother could provide, and that the
children were adjusting well to their foster parents [R.C. 2151.414(D)(1)(d)]. The
presence of any one of these factors was sufficient to make a finding that granting
permanent custody to the agency was in the best interest of the children. In re Z.T., 8th
Dist. No. 88009, 2007-Ohio- 827, at ¶ 56.
{¶10} The mother also complains that the court gave no consideration to a pending
motion for judicial release that she filed in the child endangering case that, if granted,
would make her available to the children much sooner and that another person came
forward expressing a desire to take custody of the children.
{¶11} There was no certainty that the mother’s motion for judicial release would
be granted. The mother’s child endangering conviction was her third criminal
conviction: she had a January 2010 conviction for theft and a July 2010 conviction for
possession of criminal tools, and was serving terms of community control on both.
Given this prior record and the nature of the child endangering conviction, the court did
not have to give any weight to a mere possibility that the mother might obtain a judicial
release.
{¶12} As for the person who expressed a desire to take custody of the children,
that interest was expressed only one week before the hearing. No formal application had
been made by this interested person and the agency had only preliminary conversations
with this person. However, testimony showed that the interested person had formerly
been in a relationship with the mother and had a prior criminal record. These facts made
the agency question his suitability for custody. The court had no basis for believing that
the interested person offered a viable alternative to permanent custody and did not err by
refusing to delay ruling on the agency’s motion for permanent custody.
{¶13} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas – Juvenile Division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
___________________________________________
MELODY J. STEWART, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KENNETH A. ROCCO, J., CONCUR