In re J.D. , 2022 Ohio 2677 ( 2022 )

[Cite as In re J.D., 2022-Ohio-2677.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.D., ET AL. :
Minor Children : No. 111039
:
[Appeal by Mother, L.C.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 4, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-18-910336, AD-18-910337, AD-18-910338,
AD-18-910339, AD-18-910340, and AD-18-910341
Appearances:
John H. Lawson, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Appellant L.C. (“Mother”) appeals the juvenile court’s termination of
her parental rights of her minor children, J.D. (who is no longer a minor child), T.H.,
MI.D., MA.D., MK.C., and MR.C. (“the children”) and the permanent award of
custody of T.H. and MK.C. to the Cuyahoga County Division of Children and Family
Services (“CCDCFS”). We affirm the judgment of the trial court.
I. Facts and Procedural History
On August 19, 2018, MK.C., who was seven years old at the time, was
found by the police walking down the street alone. The police took him home and
found the other five children home without adult supervision. The police observed
that the home had broken windows; had holes in the walls; was filled with trash
throughout the house; and lacked beds, furniture, and food. The police removed
the children from the home.
On August 20, 2018, CCDCFS filed a complaint against Mother
alleging that Mother was neglecting her six children and requested temporary
custody. CCDCFS also filed a motion for predispositional temporary custody. On
that same day, the magistrate granted predispositional custody to CCDCFS.
History of this family reveals that J.D., the oldest child, was committed to CCDCFS’s
protective supervision in 2004, after he was adjudged delinquent, and currently
paternity has not been established. The father of T.H. failed to establish paternity
and is incarcerated until 2037. The father of MI.D. and MA.D. also failed to
establish paternity. At the time of these proceedings, Mother was married and
living with the father (“Father”) of MK.C. and MR.C.
On August 22, 2018, Pinkie Clark, the guardian ad litem (“the GAL”)
was appointed for the children. CCDCFS filed a case plan on September 13, 2018,
which indicated that in order for reunification to take place between Mother and the
children, Mother and Father needed to reduce the risks and safety issues in the
home; provide a three-day supply of food in the home; use community resources
such as food stamps, food pantries, and cash assistance; provide a clean home;
provide adequate supervision when the children are left home; attend and complete
a parenting skills program; allow the agency access to the home once per month;
follow through with all agency referrals; complete drug assessments; participate in
a service suggested by the assessment; remain sober; participate in random drug
screens; and have weekly visitations with the children.
On October 25, 2018, CCDCFS amended their complaint to include
that the house and supervision of the children was substandard. Mother
acknowledged that both were below standard, and none of the fathers of the children
were present at the hearing. On November 29, 2018, Mother consented to CCDCFS
receiving temporary custody of the children, and all six of the children were placed
in CCDCFS temporary custody.
CCDCFS requested and received two six-month extensions after
temporary custody was issued in order to give Mother time to rectify her issues.
Those extensions were granted on August 12, 2019, and February 27, 2020. On
July 28, 2020, CCDCFS filed motions to modify the order of temporary custody to
permanent custody of the two children, T.H. and MK.C. The other four children
were placed in the custody with other family members. A trial was scheduled for
November 4, 2020; however, Mother filed a motion to continue the trial date. The
trial court granted Mother’s motion, and the trial was rescheduled for March 30,
2021. CCDCFS filed a motion to continue the March 30th trial date because their
counsel had an emergency. The trial court granted the motion and rescheduled the
trial for June 15, 2021.
Mother filed a motion to continue the trial date due to a medical
emergency, and the trial court granted the motion but indicated that it would be the
final continuance. The trial was scheduled and held on September 27, 2021. The
trial court granted custody to CCDCFS for the children as follows: legal custody of
J.D. was granted to his paternal aunt; permanent custody of T.H. and MK.C. was
granted to CCDCFS; and legal custody of MI.D., MA.D., and MR.C. was granted to
the maternal grandparents.
Mother filed an appeal assigning three errors for our review:
I. The trial court erred and abused its discretion by scheduling the
trial nearly 400 days after the appellee’s motion for permanent
custody was filed in violation of R.C. 2151.414(A)(2);
II. The trial court erred and abused its discretion by awarding
permanent custody of T.H. and MK.C. to appellee against the
manifest weight of the evidence; and
III. The trial court erred in issuing legal custody order regarding
J.D., MI.D., MA.D., and MR.C.
II. Delay of Trial
In Mother’s first assignment of error, she argues that the trial court
abused its discretion by violating the 120-day deadline to hold a permanent custody
hearing pursuant to R.C. 2151.414(A)(2), which states in part:
The court shall hold the hearing scheduled pursuant to division (A)(1)
of this section not later than one hundred twenty days after the agency
files the motion for permanent custody, except that, for good cause
shown, the court may continue the hearing for a reasonable period of
time beyond the one-hundred-twenty-day deadline. The court shall
issue an order that grants, denies, or otherwise disposes of the motion
for permanent custody, and journalize the order, not later than two
hundred days after the agency files the motion.
The failure of the court to comply with the time periods set forth in
division (A)(2) of this section does not affect the authority of the court
to issue any order under this chapter and does not provide any basis
for attacking the jurisdiction of the court or the validity of any order
of the court.
R.C. 2151.414(A)(2).
An appellate court may find that a trial court abused its discretion
only if it finds that the decision of the trial court was unreasonable, arbitrary, or
unconscionable. In re Z.J., 8th Dist. Cuyahoga No. 108834, 2020-Ohio-383, ¶ 15,
citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
The motion for permanent custody was filed on July 28, 2020, and
the hearing was held on September 27, 2021, more than 120 days from when
CCDCFS file for permanent custody. Trial was initially schedule for November 18,
2020, within 120 days, but Mother filed a motion to continue the trial date, which
was rescheduled for January 8, 2021. On that day, an attorney conference was held
and the trial date was rescheduled to March 30, 2021. Counsel for CCDCFS filed a
motion to continue, and the trial court rescheduled the trial again for June 15, 2021.
Mother filed a motion to continue because she was unable to attend the trial on that
date, and the trial court rescheduled the trial for September 27, 2021. Each
continuance was for good cause shown.
Although the trial was held more than 120 days from when the motion
for permanent custody was filed, and more than 200 days after continuances,
Mother was responsible for the trial being delayed twice and CCDCFS once.
“Because the time provisions of R.C. 2151.414(A)(2) are directory and not
mandatory, the Ohio Supreme Court has held that a litigant must seek a writ of
procedendo against the juvenile court if it does not comply with these time limits.”
In re K.H., 5th Dist. Licking No. 13-CA-100, 2014-Ohio-1594, ¶ 14, citing In re Davis,
84 Ohio St.3d 520, 523-524, 705 N.E.2d 1219 (1999). “If a party does not seek such
a writ, he is stopped from arguing on appeal that delay by the juvenile court violated
his due process rights.” Id. See In re M.G., 5th Dist. Richland No. 16CA18, 2016-
Ohio-5256, ¶ 37. See also In re B.L., 10th Dist. Franklin No. 04AP-1108, 2005-
Ohio-1151, ¶ 8 (“[T]he failure to meet the 200-day time frame contained in
R.C. 2151.414(A)(2) does not provide a basis for attacking the validity of the
judgment.”).
Because Mother was responsible for the trial being delayed twice,
good cause has been shown as to why the trial court scheduled the trial beyond the
statutory limits. Therefore, Mother’s first assignment of error is overruled.
III. Permanent Custody
In Mother’s second assignment of error, she contends that the trial
court erred by awarding permanent custody of T.H. and MK.C. to CCDCFS against
the manifest weight of the evidence.
To terminate parental rights and grant permanent custody to a county
agency, the record must demonstrate by clear and convincing evidence the
following: (1) the existence of one of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e); and (2) permanent custody is in the best interest
of the child. In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-
Ohio-4064, ¶ 27. “‘Clear and convincing evidence’” is that quantum of evidence
that instills in the trier of fact a firm belief or conviction as to the allegations sought
to be established.” In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
When determining the child’s best interest pursuant to
R.C. 2151.414(D)(1), courts analyze the following factors: (1) the interaction and
interrelationship of the child with others; (2) the wishes of the child; (3) the
custodial history of the child; (4) the child’s need for a legally secure placement and
whether such a placement can be achieved without permanent custody; and, (5)
whether any of the factors in divisions R.C. 2151.414(E)(7) to (11) apply.
Also,
[a] juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence “if the
record contains some competent, credible evidence from which the
court could have found that the essential statutory elements for
permanent custody had been established by clear and convincing
evidence.”
In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62, quoting In re
A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
The “best interest determination” focuses on the child, not the parent.
R.C. 2151.414(C); In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th
Dist.1994). The discretion that the juvenile court enjoys in deciding whether an
order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
decision will have on the lives of the parties concerned. Id. at 316.
Thus, we review “a trial court’s determination of a child’s best interest
under R.C. 2151.414(D) for abuse of discretion.” In re V.C., 8th Dist. Cuyahoga
Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 52, citing In re L.O., 8th Dist.
Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 22. “An abuse of discretion implies that
the court’s decision was unreasonable, arbitrary or unconscionable.” Id., citing
Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.
A. Children’s Interview
During the proceeding to determine if permanent custody should be
awarded to the agency, the trial court requested an interview with three of the
children. Two of the children explained to the trial court that they enjoyed living
with their current placements and did not wish to return home if Mother and Father
were living together. The children also describe the living conditions of the home,
while living with Mother and Father, as not having electricity, broken windows, and
a lack of beds and furniture.
B. Trial Testimony
At trial, Sarah Narine (“Narine”), social worker for CCDCFS, testified
that after MK.C. led police to the family home, the home was in deplorable
conditions and was unsafe. The police attempted to contact Mother but were
unable, so the children were removed from the home and placed in the emergency
care of CCDCFS. Narine explained that the goal of CCDCFS was to reunify the
children with their parents and a case plan was created for both Mother and Father.
Narine testified that the case plan included housing, parenting classes, stable
income, and substance abuse treatment.
Narine testified that Mother’s drug tests came back positive for
cocaine on August 18, 2020, September 17, 2020, and January 21, 2021; however,
Mother received a certificate stating that she completed her Intensive Outpatient
Services for substance abuse. Narine also testified that Mother was initially
resistant to attending parenting classes because she felt the children’s behavioral
issues were due to them being in foster care, not due to her parenting. However,
Narine testified that after speaking with the children, the behaviors had been going
on quite some time before the children were removed from the home. Mother,
however, did attend some parenting classes.
Narine also testified that the agency had some concerns regarding
Father because he was not making any progress with the case plan or addressing the
issues on the plan. It was explained to Mother that this was an issue because Father
lived in the home and was married to Mother. Mother told CCDCFS that she would
get divorced. However a divorce never took place and, according to Father, they
were still together and not separated. Father was also aware that he was not
addressing his case plan services.
Narine testified that Mother providing adequate housing was a
concern because within two years, Mother and Father had lived in multiple houses.
She also explained that Mother seem to understand the objectives of the case plan.
Narine explained to Mother and Father that the case plan had to be completed by
each parent. Father has tested positive for cocaine multiple times. Father was
referred to Recovery Resources to address his substance abuse issues; however, he
was not successful in that program because he continued to test positive for cocaine.
Although Father completed parenting classes, the agency still had
concerns about his treatment of the children, specifically his inability to manage his
anger around the children. Father also claimed that he was living in a shelter,
separate from Mother. However, Narine testified that there were concerns that
Father and Mother were residing in the same home together. During video chats
with the children, Father and Mother were together and would show the home they
were living in together.
Narine also testified that when she visited Mother at her home,
Father’s truck was in the driveway, but Mother told Narine that the truck belonged
to someone else. Mother also never provided documentation that they were legally
separated or divorced, although she maintained over the years that they were going
to get divorced. Narine also stated that she observed Mother and Father in Father’s
truck together leaving court. Narine also observed Mother and Father together at
Starbucks in the same truck she observed in the driveway.
Narine also explained there were concerns that even though Mother
completed the substance abuse treatment plan, Mother was still testing positive for
cocaine. Narine testified that Mother’s sons were not comfortable with Father in
the home. The sons reported that Father forced them to panhandle. Daughters
J.D. and T.H. reported being uncomfortable in Father’s presence, and there were
sexual abuse allegations against Father.
Narine testified that she made it clear to Mother and Father that
Father needed to complete the services in order for reunification to occur. She told
Mother and Father that even if they’re separated, they both needed to make sure the
services were completed.
Narine also testified that at visitations with Mother, Father, and the
children before Covid-19 protocols, Father would get angry with the children and he
left two visits early due to his anger. There also was a report that Father may have
burned one of the boys during a visit.
Narine also explained that in regards to T.H. and MK.C., the agency
was unable to find familial placement for them, so the agency had to file for
permanent custody. As to the other four children, the agency filed for legal custody
because they were able to locate familial placement. Narine expressed some
concern with MK.C., who was the only child to want to return home with her parents
because she has been in more foster homes than any of the other children.
According to Narine, Mother and Father always expressed to her that she was
coming home, so it created emotional distress for MK.C.
On cross-examination by Mother and J.D.’s attorneys, Narine
testified that Mother obtained a lease without Father’s name. Narine also testified
that both Mother and Father completed a parenting course but also noted that
neither had completed their case plan.
On redirect examination, Narine testified that the agency requested
two six-month extensions of temporary custody to give Mother and Father
additional time to complete their case plan. However, when asked why the agency
was seeking permanent custody, Narine replied that Mother and Father had not
made sufficient progress with their case plan for the agency to reunify them with the
children.
After Narine, J.D.’s paternal aunt (“aunt”) testified. Aunt testified
that she was present for a visit between J.D., M.K.C, and Mother. Aunt stated that
after the visit, she observed Mother get into a vehicle that was driven by Father.
Aunt also testified that J.D. was very concerned with seeing Father pick up Mother
because she did not want to see him. Aunt explained that before each visit, J.D.
would ask if Father was going to be there because she just wanted to see Mother.
The trial court asked aunt if J.D. seemed scared when she saw Mother and Father
together, to which aunt replied, “Yes she does.” (Tr. 112.)
Shakeya McKether (“McKether”), a supervisor for CCDCFS, testified
that she was assigned to the case of the children. She testified that the children
were removed from the care of Mother and Father because they could not provide
the basic needs for the children. McKether also testified that Mother lacked
appropriate decision-making skills because of the excessive phone calls that the
childcare providers would receive from Mother and the fact that Mother kept telling
the agency that she was either divorced or separated from Father but provided no
evidence to that fact.
McKether testified that the agency made several referrals for Mother
including mental health, substance abuse treatment, and parenting classes.
McKether stated that she attempted to facilitate visitation, but Mother was not
consistent during the time McKether was assigned to the case. She also testified
that Mother tested positive for cocaine several times. McKether testified that the
agency had concerns with Mother and Father’s relationship, because the children
reported they were fearful of Father and did not want to return home because Father
was still living with Mother.
McKether testified that the agency expressed the children’s concerns
with Mother. Mother stated that she did not know why the children did not want
to be around Father, and she felt as if the agency encouraged the children to falsify
these statements. McKether stated to the trial court that the agency had concerns
about returning the children to Mother’s care because there were multiple reports
from the children that they had been homeless and transient. The children also
reported to the agency that Father would take Mother’s money and they would have
to panhandle in order to have money. After panhandling, Father and Mother
would take the money from the children but not provide food for them.
McKether also expressed that T.H. had concerns about Father living
in the home with Mother. When T.H. expressed those concerns, Mother stopped
communicating with her for weeks. Mother told T.H. that Father was just giving
her a ride home from work. However, T.H. stated that Father was in Mother’s
home around 10:00 or 11:00 at night. T.H. told Mother that Father should not have
been in the home at that time of night.
[Cite as In re J.D., 2022-Ohio-2677.]
McKether testified that the children expressed some suffering of
physical abuse from Father and that Father treated his biological children differently
than his stepchildren. Specifically, the children reported that when Mother would
leave the house, Father would allow his biological children to watch TV and roam
the home, while the stepchildren had to stay in their rooms.
McKether also testified that the agency still had significant concerns
with reunification between the parents and children because Mother was still
married and involved with Father. She stated that there were still barriers in the
relationship between Mother and children. Mother would not answer the phone
when the children would call but then would call late and excessively to the point
that Mother’s father had to contact the authorities regarding threatening and
harassing voicemails left by Father.
McKether testified that during Christmas, Mother called the children
and told them she bought presents but would not give them to the children until
they were returned home. According to McKether, this caused some emotional and
mental health issues for the children. McKether spoke to Mother and asked if she
could pick the presents up and take them to the kids. Mother told McKether that
the presents had to stay in her home until the children returned.
McKether ended her testimony by stating that the agency was seeking
permanent custody of T.H. and MK.C. because there were no family members that
would take custody of the girls. McKether also testified that Mother’s home is not
emotionally appropriate because the children do not have an appropriate
relationship with Mother. There were concerns that Father was staying in the
home with Mother and that Mother would constantly involve Father in the virtual
visitations.
Lee Barbee (“Barbee”), extended care worker for CCDCFS and
current case manager assigned to the children, testified after McKether. Barbee
testified that since receiving the children on his caseload, he has tried to facilitate
efforts at reunification between Mother and the children. Specifically, he had been
working with Mother to address her drug addiction issues. Barbee explained to the
court that Mother continues to test positive for cocaine and tested positive the
Thursday before the permanency hearing. He also testified that Mother’s home
was physically appropriate. Barbee stated that he tried to engage with Father but
Father refused.
Barbee further testified that he facilitated phone calls and visitations
between the children and Mother. During those visits, MK.C. exhibited signs of
closeness with Mother. Barbee explained that the agency had located another
relative that could be available to obtain custody of T.H. and MK.C., who were
currently placed together in a foster home.
After Barbee’s testimony, both counsel for Mother and the state
rested their case. The trial court asked the GAL to submit her report. In the
report, the GAL stated that she did not see any problem with the state asking for
legal custody of J.D., and that J.D. desires not to return to her mother’s home. The
GAL also stated that she agreed with J.D. and it is not in the best interest of J.D. to
return to Mother.
The GAL also expressed that T.H. did not want to return to Mother
and that is not in T.H.’s best interest to be returned to Mother. The GAL continued
stating that it was not in the best interest of any of the children to be returned to
Mother because Mother has not addressed many of the concerns that were the
catalyst for the children being removed from her. She stated that Mother is unable
to provide adequate supervision for the children. The children have stated that
neither Mother nor Father were able to adequately supervise them, and they believe
that the oldest children would be responsible for their care.
The GAL also stated that MK.C. is the only child that wants to return
to Mother, but she was very young during removal and does not remember all of the
details that led to the children being removed from the home. The GAL explained
that the three boys are living with Mother’s father, are doing well in the home and
are getting their mental health needs addressed through counseling.
At the end of the hearing, the trial court awarded permanent custody
of T.H. and MK.C. to CCDCFS. The trial court issued journal entries for both
children stating:
The parents have failed to complete the case plan, and the mother’s
substance abuse is still a safety issue. The child is afraid of [Father],
the mother’s husband and father of two of the children in this case,
and there was testimony that the mother continues to have a
relationship with him. This child has been in custody for three years,
and two extensions of temporary custody have already been granted.
Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).
C. Legal Analysis
1. Clear and Convincing Evidence
The trial court has authority to grant permanent custody to CCDCFS
where, as in this case, a child has been adjudicated as neglected, dependent, or
abused.
When an agency files a permanent custody motion under
R.C. 2151.413 after obtaining temporary custody, the guidelines and
procedure set forth under R.C. 2151.414 apply. Division (B) of
R.C. 2151.414 sets forth a two-prong analysis to be applied by a
juvenile court. Pursuant to this division, before a trial court can
terminate parental rights and grant permanent custody to a county
agency, the court must find by clear and convincing evidence (1) the
existence of any one of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e), and (2) that granting permanent
custody to the agency is in the best interest of the child.
In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 45 (8th Dist.).
“Only one of the four factors must be present for the first prong of
the permanent custody analysis to be satisfied. * * * Once the juvenile court
ascertains that one of the four factors listed in R.C. 2151.414(B)(1) is present, then
the court proceeds to an analysis of the child’s best interest.” In re J.B., 8th Dist.
Cuyahoga No. 98565, 2013-Ohio-1705, ¶ 80-81. Regarding the first prong of the
analysis, the trial court stated in its journal entries,
[p]ursuant to R.C. 2151.414(B)(1)(a) and (d), the Court finds by clear
and convincing evidence that it is in the best interest of the child to
grant permanent custody to the agency that filed the motion for
permanent custody and that the following apply: The child cannot be
placed with either parent within a reasonable time or should not be
placed with the parent. This factor is discussed as part of the (E)
factors of R.C. 2151.414 below. The child has been in the temporary
custody of CCDCFS for twelve or more months of a consecutive
twenty-two-month period.
Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).
R.C. 2151.414(B)(1)(a) states in part:
[T]he court may grant permanent custody of a child to a movant if the
court determines at the hearing held pursuant to division (A) of this
section, by clear and convincing evidence, that it is in the best interest
of the child to grant permanent custody of the child to the agency that
filed the motion for permanent custody and that * * * the following
apply: 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.
The trial court determined that T.H. and MK.C. could not be placed
within a reasonable time or should not be placed with either parent because there is
evidence that one or more factors in division (E) of R.C. 2151.141 exist:
(1) Following the placement of the child outside the child’s home and
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
determining whether 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; and
(4) The 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.
Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).
Continuing to address the first prong of the analysis, the trial court
stated in its journal entries:
The parents have failed to complete the case plan, and the mother’s
substance abuse is still a safety issue. The child is afraid of [Father],
the mother’s husband and father of two of the children in this case,
and there was testimony that the mother continues to have a
relationship with him. This child has been in custody for three years,
and two extensions of temporary custody have already been granted.
Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).
We recognize that “a parent’s right to raise a child is an essential and
basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). And
the “‘[p]ermanent termination of parental rights has been described as “the family
law equivalent of the death penalty in a criminal case.”’” In re Hoffman, 97 Ohio
St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14, quoting Hayes at 48, quoting In
re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Also, “‘termination
of the rights of a birth parent is an alternative of last resort.’” In re Gill, 8th Dist.
Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21, quoting In re Wise, 96 Ohio App.3d
619, 645 N.E.2d 812 (9th Dist.1994), citing In re Cunningham, 59 Ohio St.2d 100,
105, 391 N.E.2d 1034 (1979). However, as to the first prong of the analysis, we
cannot state that the trial court erred when it determined by clear and convincing
evidence the existence of the conditions set forth in R.C. 2151.414(B)(1)(a), as
discussed above, that resulted in awarding permanent custody of T.H. and MK.C. to
CCDCFS.
2. Best Interest of the Child
The second prong of the analysis requires the trial court to determine
that granting permanent custody to the agency is in the best interest of the child.
In accordance with R.C. 2151.414(D)(1),
[i]n determining the best interest of a child at a hearing held pursuant
to division (A) of this section or for the purposes of division (A)(4) or
(5) of section 2151.353 or division (C) of section 2151.415 of the
Revised Code, the court shall consider all relevant factors, including,
but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, 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, or 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 and, 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;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28
of the Revised Code or the date that is sixty days after the removal of
the child from home.
R.C. 2151.414(D)(1).
Additionally, in its journal entries, the trial court stated:
While it was not argued in trial, the Court notes that pursuant to
R.C. 2151.454(D)(2), “permanent custody is in the best interest of the
child and the court shall commit the child to the permanent custody”
of CCDCFS if all of the following apply:
(a) The court determines by clear and convincing evidence that
one or more of the factors in division (E) of this section exist
and the child cannot be placed with one of the child’s parents
within a reasonable time or should not be placed with either
parent.
(b) The child has been in an agency’s custody for two years or
longer, and no longer qualifies for temporary custody pursuant
to division (D) of section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned
permanent living arrangement pursuant to division (A)(5) of
section 2151.353 of the Revised Code.
(d) Prior to the dispositional hearing, no relative or other
interested person has filed, or has been identified in, a motion
for legal custody of the child.
The Court finds that all the factors listed in 2151.414(D)(2) apply in
this case.
Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).
In the trial court’s journal entry regarding T.H., it stated:
The Guardian Ad Litem for the child recommends that permanent
custody is in the best interest of the child. Counsel for the child states
that the child does not wish to be reunified. The Court conducted an
in-camera interview with the child. The GAL report and
recommendation, the statements of the child’s counsel, and the in-
camera interview are perhaps the most significant factors in this
Court’s decision. * * * IT IS THEREFORE ORDERED, that the
order heretofore made committing the child to the
temporary custody of the Cuyahoga County Division of
Children and Family Services is terminated. The child is
committed to the PERMANENT CUSTODY of the Cuyahoga
County Division of Children and Family Services for the
purposes of adoption. * * *
Journal entry No. 0915150361 (Oct. 20, 2021).
In the trial court’s journal entry regarding MK.C., it stated:
The Guardian Ad Litem for the child recommends that permanent
custody is in the best interest of the child. The Court conducted an
in-camera interview with the child. * * * The Court finds that the
child’s continued residence in or return to the home [Mother] and
[Father] will be contrary to the child’s best interest. * * * IT IS
THEREFORE ORDERED, that the order heretofore made
committing the child to the temporary custody of the
Cuyahoga County Division of Children and Family Services
is terminated. The child is committed to the PERMANENT
CUSTODY of the Cuyahoga County Division of Children and
Family Services for the purposes of adoption. * * *
Journal entry No. 0915150367 (Oct. 20, 2021).
Thus, after a thorough review of the record, we find that there is clear
and convincing evidence supporting the determination to award permanent custody
to CCDCFS, and that the trial court did not abuse its discretion by finding that the
award is in the best interest of the children. Therefore, Mother’s second
assignment of error is overruled.
IV. Legal Custody Orders
In Mother’s third assignment of error, she argues that the trial court
erred in issuing legal custody orders regarding J.D., MI.D., MA.D., and MR.C.
because CCDCFS failed to expend reasonable efforts to reunite the children with
Mother.
In reviewing a trial court’s decision to award legal custody, an
appellate court recognizes that
“[a] trial court’s decision concerning the allocation of parental rights
and responsibilities rests within the sound discretion of the trial court.
In re A.M.S., 8th Dist. Cuyahoga No. 98384, 2012-Ohio-5078, ¶ 17,
citing In re D.J.R., 8th Dist. Cuyahoga No. 96792, 2012-Ohio-698.
Specifically, the trial court’s determination of what is in the best
interest of the child will not be disturbed absent an abuse of
discretion. Drees v. Drees, 3d Dist. Mercer No. 10-13-04, 2013-
Ohio-5197, ¶ 20. An abuse of discretion suggests that the trial court’s
judgment is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Under this standard, an appellate court may not merely substitute its
judgment for that of the trial court. Id.”
In re M.B., 8th Dist. Cuyahoga No. 105168, 2017-Ohio-7481, ¶ 5, quoting In re
A.P.D., 8th Dist. Cuyahoga No. 100504, 2014-Ohio-1632, ¶ 10.
“‘Although the statutory scheme regarding an award of legal custody
does not include a specific test or set of criteria, the [Ohio appellate courts] have
previously held that the juvenile court must base such a decision on the best interest
of the child.’ (Citation omitted.)” Id. at ¶ 11, quoting In re R.R., 9th Dist. Summit
No. 23641, 2007-Ohio-4808, ¶ 12. “‘In legal custody cases, trial courts should
consider all factors relevant to the best interest of the child.’” Id., quoting In re S.J.,
9th Dist. Summit No. 23199, 2006-Ohio-6381, ¶ 34. “‘[T]he factors contained in
R.C. 2151.414(D) may provide guidance to the trial court in making an award of legal
custody.’” Id., quoting In re R.R. at ¶ 12.
In the trial court’s journal entry for J.D., it stated:
The Court finds by a preponderance of the evidence that it is in the
best interest of the child to grant Legal Custody to * * *, Paternal
Aunt. * * * The Guardian Ad Litem for the child recommends that
Legal Custody is in the best interest of the child. Counsel for the child
states that the child does not wish to be reunified. The Court
conducted an in-camera interview with the child. The GAL report
and recommendation, the statements of the child’s counsel, and the
in-camera interview are perhaps the most significant factors in this
Court’s decision. The parents have failed to complete the case plan,
and the mother’s substance abuse is still a safety issue. The child is
afraid of [Father], the mother’s husband, and there was testimony that
the mother continues to have a relationship with him. This child has
been in custody for three years, and two extensions of temporary
custody have already been granted. The Court finds that the child’s
continued resident in or return to the home of [Mother] will be
contrary to the child’s best interest. The continued wardship of the
child is not necessary and is not in the child’s best interest.
Journal entry No. 0915150318 (Oct. 20, 2021).
In the trial court’s journal entry for MI.D., MA.C., and MR.C., it
stated:
The Court finds by a preponderance of the evidence that it is in the
best interest of the child to grant Legal Custody to * * *, maternal
grandparents. * * * The Guardian Ad Litem for the child recommends
that Legal Custody is in the best interest of the child. Counsel for the
child states that the child does not wish to be reunified. The Court
conducted an in-camera interview with the child. The GAL report
and recommendation, the statements of the child’s counsel, and the
in-camera interview are perhaps the most significant factors in this
Court’s decision. The parents have failed to complete the case plan,
and the mother’s substance abuse is still a safety issue. The child is
afraid of [Father], the mother’s husband and father of two of the
children, and there was testimony that the mother continues to have
a relationship with him. The child has been in custody for three
years, and two extensions of temporary custody have already been
granted. The Court finds that the child’s continued resident in or
return to the home of [Mother] will be contrary to the child’s best
interest. The continued wardship of the child is not necessary and is
not in the child’s best interest.
Journal entry Nos. 09515150320, 0915150322, and 0915150324 (Oct. 20, 2021).
For all four children, the trial court noted that it considered the best
interests of the children; the interaction and interrelationship of the children with
the parents, siblings, and relatives; the wishes of the children; the custodial history
of the children; and the children’s need for a legally secure permanent placement.
The trial court found that given Mother had not rectified her substance abuse issue,
had failed to complete her case plan, and continued having Father in her home and
life, it was in the best interest of the children to issue legal custody for the children.
Therefore, we cannot say that the trial court erred in issuing an order
of legal custody for the children.
V. Reunification
“The Ohio Revised Code imposes a duty on the part of children
services agencies to make reasonable efforts to reunite parents with their children
where the agency has removed the children from the home.” In re R.D.W., 8th Dist.
Cuyahoga No. 110661, 2021-Ohio-4304, ¶ 34, citing R.C. 2151.419. “‘Case plans are
the tools that child protective service agencies use to facilitate the reunification of
families who * * * have been temporarily separated.’” Id., quoting In re Evans, 3d
Dist. Allen No. 1-01-75, 2001 Ohio App. LEXIS 4809, 3 (Oct. 30, 2001). “To that
end, case plans establish individualized concerns and goals, along with the steps that
the parties and the agency can take to achieve reunification.” Id.“‘Reasonable efforts means that a children’s services agency must act
diligently and provide services appropriate to the family’s need to prevent the child’s
removal or as a predicate to reunification.’” In re R.D.W. at ¶ 35, quoting In re
H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95.
““‘Reasonable efforts’” does not mean all available efforts.’” Id., quoting In re J.B.,
8th Dist. Cuyahoga No. 109039, 2020-Ohio-3675, ¶ 21, quoting In re Lewis, 4th
Dist. Athens No. 03CA12, 2003-Ohio-5252, ¶ 16. “‘Otherwise, there would always
be an argument that one more additional service, no matter how remote, may have
made reunification possible.’” Id., quoting In re K.M., 12th Dist. Butler No. CA
2004-02-052, 2004-Ohio-4152, ¶ 23.
[Cite as In re J.D., 2022-Ohio-2677.]
““‘The issue is not whether [the agency] could have done more, but
whether it did enough to satisfy the reasonableness standard under the statute.’””
Id., quoting In re S.F., 2d Dist. Montgomery No. 25318, 2013-Ohio-508, ¶ 21,
quoting In re Secrest, 2d Dist. Montgomery No. 19377, 2002-Ohio-7096, ¶ 13. See,
e.g., In re K.W., 8th Dist. Cuyahoga No. 106700, 2018-Ohio-3314, ¶ 45 (“Whether
an agency * * * made reasonable efforts pursuant to R.C. 2151.419 is based on the
circumstances of each case, not whether there was anything more the agency could
have done.”). “In determining whether reasonable efforts were made, the child’s
health and safety shall be paramount.” Id., quoting R.C. 2151.419(A)(1).
R.C. 2151.419(A)(1) states:
(1) Except as provided in division (A)(2) of this section, at any hearing
held pursuant to section 2151.28, division (E) of section 2151.31, or
section 2151.314, 2151.33, or 2151.353 of the Revised Code at which
the court removes a child from the child’s home or continues the
removal of a child from the child’s home, the court shall determine
whether the public children services agency or private child placing
agency that filed the complaint in the case, removed the child from
home, has custody of the child, or will be given custody of the child
has made reasonable efforts to prevent the removal of the child from
the child’s home, to eliminate the continued removal of the child from
the child’s home, or to make it possible for the child to return safely
home. The agency shall have the burden of proving that it has made
those reasonable efforts. If the agency removed the child from the
home during an emergency in which the child could not safely remain
at home and the agency did not have prior contact with the child, the
court is not prohibited, solely because the agency did not make
reasonable efforts during the emergency to prevent the removal of the
child, from determining that the agency made those reasonable
efforts. In determining whether reasonable efforts were made, the
child’s health and safety shall be paramount.
The caseworkers assigned to the children testified that reasonable
efforts were made to reunify Mother and the children. CCDCFS requested two six-
month extensions after temporary custody was issued in order to give Mother time
to rectify her issues. Mother continued to test positive for cocaine despite attending
and completing substance abuse treatment. Mother tested positive for cocaine four
days prior to the permanency hearing. Additionally, Mother did not remove Father
from her home and continued to spend time with him, nor did she provide any
documentation to support her assertion that she and Father were divorced or legally
separated. Mother also had not addressed how the children were going to be
adequately supervised while she was working. Finally, with exception of MK.C.,
none of the children wanted to be returned to Mother’s care. Given the facts
presented in this case, we cannot state that CCDCFS did not make reasonable efforts
to reunite the children with Mother.
Therefore, Mother’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court, 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.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR