In re D.H. , 2022 Ohio 2780 ( 2022 )

[Cite as In re D.H., 2022-Ohio-2780.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE D.H., ET AL. :
: No. 111323
Minor Children:
:
[Appeal by K.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 11, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-19903487, AD-19903488,
AD-19903489, and AD-19903490
Appearances:
Michael E. Stinn, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MARY J. BOYLE, J.:
Appellant, K.H. (“Mother”), appeals from an order of the Cuyahoga
County Court of Common Pleas, Juvenile Division, awarding permanent custody of
her four sons, D.H. (d.o.b. Dec. 1, 2007), A.H (d.o.b. Jan. 16, 2010), Q.H. (d.o.b. Apr.
6, 2012), and K.H. (d.o.b. Dec. 11, 2016) (collectively, “children”), to appellee, the
Cuyahoga County Department of Children and Family Services (“CCDCFS” or
“agency”). For the reasons set forth below, we affirm the juvenile court’s judgment.
I. Background
On December 28, 2018, CCDCFS filed a complaint in the juvenile
court, alleging that the children were neglected and dependent and requesting
predispositional custody (Case Nos. AD18915778-81). The children were committed
to the agency’s predispositional custody on January 18, 2019. Subsequently, the
agency dismissed the complaint because the cases could not be resolved within the
90-day statutory timeframe.
The agency refiled the complaint on March 25, 2019 (Case Nos.
AD19903487-90). The complaint alleged that Mother failed to ensure that D.H.,
A.H., and Q.H. regularly attended school;1 Mother has older children who were
adjudicated neglected due in part to educational neglect (Case Nos. AD02902607-
09); and Mother does not have stable and appropriate housing because she and the
children were temporarily residing with a relative and a total of three adults and
nine children were living in the home.
The complaint also alleged that the father of A.H., M.T., established
paternity but is currently incarcerated for felonious assault, discharging a firearm at
or into a habitation, and having weapons while under disability; the father of Q.H.,
N.W., established paternity but is currently incarcerated for felonious assault,
having a weapon while under disability, and domestic violence; the alleged father of
1 K.H. was not school age when the agency filed its complaint.
K.H., M.E., is incarcerated for involuntary manslaughter, corrupting another with
drugs, drug trafficking, possession of criminal tools, and attempted failure to
comply; the alleged father of D.H., J.M., failed to establish paternity; and the alleged
father of D.H. and K.H., John Doe, failed to establish paternity and failed to support,
visit, or communicate with D.H. and K.H. since birth. On March 25, 2019, the
juvenile court granted the agency’s second request for predispositional custody of
the children.
At a subsequent hearing, Mother stipulated to the allegations in the
complaint, the children were adjudicated neglected and dependent, and following
the dispositional hearing, the children were committed to the temporary custody of
CCDCFS. A case plan was developed that included mental-health and substance-
abuse assessments and periodic drug screens for Mother; provision for the
children’s regular attendance at school and completion of assignments; intervention
for D.H. following behavioral concerns and multiple school suspensions;
intervention for K.H. to correct cognitive delays; and provision for housing and basic
needs, with the goal of reunification.
On November 25, 2019, the agency filed a motion for the first
extension of temporary custody, stating that while Mother had completed mental-
health and substance-abuse assessments, she still had not obtained stable housing.
On January 23, 2020, CCDCFS filed a semiannual review, stating that D.H.’s
behavior disrupted the children’s placement with a relative, after which D.H. was
placed at the New Beginnings Residential Treatment Center in Youngstown, Ohio
(“New Beginnings”) and A.H., Q.H., and K.H. were placed in foster care. The
juvenile court granted the agency’s motion for the first extension of temporary
custody on February 6, 2020.
On May 14, 2020, the agency filed a motion for the second extension
of temporary custody of D.H., stating that D.H. continued to struggle with behavior
problems and needed more time to complete his treatment before being discharged
from New Beginnings. However, the agency filed motions to terminate temporary
custody of A.H., Q.H., and K.H., stating that Mother had substantially complied with
the case plan by engaging in services to address concerns with substance abuse,
mental health, and housing. The agency also requested protective supervision of
A.H., Q.H., and K.H. because Mother had not yet completed all the objectives of the
case plan. On August 5, 2020, the agency filed an updated semiannual review,
stating that Mother was not involved in the children’s schooling; sent the children
home without showering, eating, and often exhausted from staying up late during
weekend visits; and refused to participate in D.H.’s therapy. On August 27, 2020,
following D.H.’s release from residential treatment, the agency filed a motion to
amend its second extension of temporary custody to a motion to terminate
temporary custody of D.H. and, consistent with its motion to terminate temporary
custody of A.H., Q.H., and K.H., requested protective supervision of D.H. On
October 14, 2020, the juvenile court granted the agency’s motion to terminate
temporary custody of the children and the children were returned to Mother with
protective supervision by CCDCFS.
On November 20, 2020, the children were again removed from
Mother’s custody pursuant to an ex parte telephonic order issued by the juvenile
court. On November 23, 2020, the agency filed a motion for immediate emergency
temporary custody of the children pending a hearing on the agency’s motion to
modify protective supervision to temporary custody. The agency attached to its
motion an affidavit of CCDCFS caseworker Shannon Gallagher (“caseworker”),
alleging that on November 18, 2020, a month after the children were reunited with
Mother, Mother left Q.H. and K.H. with an “inappropriate caregiver,” and K.H. was
shot with a gun. The caseworker also alleged that another child was shot and killed
in Mother’s home months earlier in August 2020. The caseworker further alleged
that Mother “minimized the severity” of both shootings, “failed to follow through
with recommended outpatient psychiatry services for D.H.,” and none of the
children’s fathers or alleged fathers were able to provide care for the children. On
November 24, 2020, the juvenile court granted the agency’s motion for emergency
temporary custody, and three months later, on February 24, 2021, granted the
agency’s motion to modify protective supervision to temporary custody.
On May 4, 2021, the agency filed a motion to modify temporary
custody to permanent custody of the children to CCDCFS. The agency attached to
this motion an affidavit of the caseworker, alleging that the children were in agency
custody more than 12 months of a consecutive 22-month period; Mother refused to
submit to drug screening despite the agency’s concerns about her substance abuse;
and Mother failed to provide a safe home for the children, refused to participate in
case planning services, and had her parental rights terminated with respect two
older siblings of the children. The caseworker also alleged that the children’s fathers
or alleged fathers were either incarcerated or unwilling to care for the children, and
the agency could not identify any relatives who were willing or able to provide
alternative permanent placement for the children. The juvenile court held a hearing
on the motion on January 26, 2022, at which the following evidence was adduced.
Dr. Douglas Waltman (“Dr. Waltman”), psychologist and consultant
at the juvenile court’s diagnostic clinic, testified that the agency referred Mother to
him for a psychological evaluation on December 21, 2021. Dr. Waltman’s summary
report of this evaluation was admitted into evidence. Dr. Waltman testified that the
evaluation included a review of Mother’s relationship, employment, mental-health,
and substance-abuse histories; a diagnostic interview with Mother; and a battery of
psychological testing. Dr. Waltman testified that he did not recommend services for
Mother because he could not confirm the presence of a diagnosable mental-health
or substance-abuse disorder but added that Mother’s defensive posture during the
evaluation could have presented a “false negative.” Dr. Waltman testified to the
following from his report:
[Mother] has a documented history of denial, minimization and
externalization of blame related to her parenting problems. This
coping pattern was on full display at the current evaluation and
corroborated by psychological testing. She did not take any
responsibility for losing her children and regards the removal of her
children as unwarranted. Psychological testing indicates she does not
take responsibility for her actions and copes with problems through an
overuse of denial, suppression, repression, minimization,
externalization of blame, rationalization, and projection. She has little
insight into herself or how her behavior affects others. Because of this
coping pattern, she is not likely to exercise good judgment regarding
her children’s care or needs. She is very likely not to recognize
problems and dangers her children face and consequently will not act
on them in an appropriate manner.
Dr. Waltman testified that Mother claimed not to know how K.H. was shot in her
home or why the agency removed the children following the shooting, and this
failure to accept responsibility for providing a safe home for the children, coupled
with her history of noncompliance, did not make Mother amenable to treatment.
The caseworker testified that when the children were originally
removed in January 2019, D.H. was at first placed with his alleged father, J.M., but
J.M. could not manage D.H.’s “extreme behavior” and D.H. was subsequently
removed. Since then, J.M. has had no contact with D.H. and expressed his wish that
D.H. be placed with a nice family. The caseworker testified that A.H.’s father, M.T.,
attended one hearing associated with custody proceedings in 2019 but expressed no
interest in having A.H. placed with him and discontinued contact with the
caseworker. The caseworker testified that although M.T. talks with A.H. by phone
on a “semiregular basis,” he provided no care for A.H. and is now incarcerated. The
caseworker testified that Q.H.’s father, N.W., and K.H.’s alleged father, M.E., have
had no contact with Q.H. and K.H. and are now incarcerated. The caseworker
testified that she searched for paternal relatives, but they had criminal histories,
expressed no interest in placement, or did not realize they were related to the father
or alleged father.
The caseworker further testified that the children were originally
removed from Mother because of the agency’s concerns about educational neglect,
lack of stable housing, and failure to meet the children’s basic needs. The
caseworker stated that Mother initially complied with the agency’s referral for
housing assistance and mental-health and substance-abuse evaluations. The
caseworker testified that Mother tested positive for marijuana and amphetamines
in March 2019, and following her referral to a substance-abuse counselor, Mother
was recommended for intensive outpatient treatment. The caseworker testified that
Mother minimally complied with periodic drug screens because she did not meet
the agency’s requirement that she complete the drug screens within 24 hours, to rule
out the possibility of flushing and inaccurate results. The caseworker added that the
agency treats the failure to complete a drug screen within 24 hours as an automatic
positive. The caseworker testified that although Mother did not complete the
recommended intensive outpatient treatment and the agency had lingering
concerns about her substance abuse, the juvenile court ordered the drug screens
removed from the case plan because Mother’s drug tests were negative.
The caseworker testified that based on Mother’s meeting these
objectives of her case plan, the agency reunited the children with Mother in October
2020, to give her an opportunity to meet the children’s educational and basic needs
under the agency’s protective supervision. The caseworker stated that prior to the
children’s reunification with Mother, the children would return from overnight
visits with Mother without having completed homework assignments. The
caseworker stated that on these occasions, Mother would claim that she did not
know that the children had any homework even though the caseworker repeatedly
informed Mother that the children were assigned homework before their visit. The
caseworker testified that the children were also in counseling, D.H. had been taking
medication to help him manage his aggression following diagnoses for oppositional
defiant disorder and PTSD, and the children had some dental issues that needed to
be addressed, including tooth extractions. These were among the agency’s lingering
concerns when the children were reunited with Mother.
The caseworker testified that the children’s reunification with Mother
ended a month later when the youngest child, K.H., was shot in Mother’s home. The
caseworker added that the bullet grazed K.H.’s buttocks and struck him in his foot.
The caseworker testified that Mother had left the children in the care of one of her
adult children and was not home at the time. The caseworker stated that Mother
insisted that the bullet entered the home during a drive-by shooting, but the police
who investigated the shooting concluded that the bullet was fired inside the home;
that the gun belonged to Mother’s nephew, M.B., who was responsible for the
shooting; and that M.B. had gang affiliation and a warrant for his arrest for
attempted murder and felonious assault. The caseworker testified that following the
shooting, she expressed her concern about M.B.’s presence in the home, and Mother
replied that M.B. is family, family is welcome in her home anytime, and the police
were unfairly targeting M.B.
Following the shooting and the children’s removal, the juvenile court
ordered Mother to complete another mental-health evaluation. The caseworker
testified that the agency initially referred Mother for evaluation in November 2020,
but Mother did not complete that evaluation, the referral lapsed, the agency again
referred Mother in November 2021, and Mother was finally evaluated by Dr.
Waltman in December 2021. The caseworker testified that in February 2021, she
received what appeared to be a pocket-dial call from Mother around 4:30 a.m., and
the voicemail indicated that Mother was at a party. The caseworker recalled that
when she asked Mother about the party, Mother replied that she is an adult, can
party whenever she wants, and alcohol is not illegal. The caseworker testified that
Mother has an unresolved citation for OVI from 2016 and a warrant for failure to
appear. The citation and docket for that case were admitted into evidence. The
caseworker testified that she asked Mother to complete a drug screen, but Mother
refused. The caseworker added that during a visit to Mother’s home in June 2021,
she observed a bong sitting on Mother’s kitchen counter, and when she asked
Mother about the bong, Mother denied that it was hers and once more refused to
submit to a drug screen. The caseworker stated that Mother lives alone, and even if
the bong did not belong to her, there was still a concern that Mother allowed drug
use in her home.
The caseworker testified that the children are currently placed in the
same foster home, where their educational and other basic needs are being met. The
caseworker added that Q.H. has also developed a strong relationship with an
intervention specialist at his school with whom he has extended visits and generally
seeks to avoid interacting with his brothers because they bully him. The caseworker
stated that the agency has retained the goal of reunification with Mother but seeks
stable permanent placement for the children. The caseworker testified that
Mother’s attitude toward the agency and its referrals remained the same despite the
agency’s serious concerns about the children’s safety. The caseworker testified that
when the agency had reunited the children with Mother in October 2020, it was not
aware that a child had been shot and killed in Mother’s home just months before,
and because Mother refused to act on the agency’s concerns about the children’s
safety following the shooting of K.H., it added a concurrent plan of permanent
custody.
Gail Nanowsky, the children’s Guardian ad Litem (“GAL”), testified
that the children wished to return to Mother. The juvenile court asked the GAL to
place her recommendation on the record. The GAL testified that she recommended
permanent custody as being in the children’s best interest because Mother does not
appreciate the danger in which she has placed the children, is not invested in the
children’s education, has allowed the children’s medical and dental issues to go
untreated, and does not follow through concerning the children’s care.
On February 2, 2022, the juvenile court granted permanent custody
of the children to CCDCFS. The court found that the children were in the temporary
custody of the agency for 12 or more months of a consecutive 22-month period, and
despite reasonable case planning and diligent efforts to assist Mother, she has failed
to substantially remedy the conditions that caused the children’s removal. The court
found that Mother suffers from “chronic mental illness and chemical dependency so
severe that it makes [her] unable to provide an adequate, permanent home for the
child[ren] at the present time and, as anticipated, within one (1) year after the Court
holds the hearing in the matter.” The court found that Mother has demonstrated
lack of commitment to providing a safe home for the children, as evidenced by her
unwillingness to complete the case plan and refusal to keep dangerous family
members from her home after an individual was shot and killed in her home in
August 2020, and K.H. was shot in her home in November 2020, after Mother left
him under the supervision of other family members.
The court further found that Mother did not complete or would not
benefit from the services offered to her. The court found that the children cannot be
placed with their fathers or alleged fathers due to their incarceration, unwillingness
to provide for, demonstrated lack of commitment to, or abandonment or neglect of
the children. The court found that the children could not be placed with Mother or
their respective fathers or alleged fathers within a reasonable time or should not be
placed with them, that the children’s continued residence in or return to Mother’s
home would be contrary to their best interest, and that an award of permanent
custody to CCDCFS was in their best interest.
It is from this judgment that Mother now appeals, raising the
following three assignments of error for review.
Assignment of Error One: The trial court abused its discretion in
finding that permanent custody was in the best interest of the children.
Therefore, the trial court’s orders granting permanent custody should
be reversed.
Assignment of Error Two: CCDCFS did not prove by clear and
convincing evidence that the children could not be returned to their
mother within a reasonable time. Therefore, the trial court’s orders
granting permanent custody to CCDCFS should be reversed.
Assignment of Error Three: The children’s mother received
ineffective assistance of counsel such that the trial court’s orders
granting permanent custody should be reversed.
II. Law and Analysis
In her first and second assignments of error, Mother argues that the
juvenile court erred in finding that permanent custody is in the children’s best
interest because the agency failed to prove the factors enumerated in R.C.
2151.414(E)(1), (2), and (4) by clear and convincing evidence. The agency argues
that the juvenile court’s findings are supported by the weight of the evidence.
A juvenile court’s judgment in child custody cases “is subject to
reversal only upon a showing of abuse of discretion.” In re A.J., 148 Ohio St.3d 218,
2016-Ohio-8196, 69 N.E.3d 733, ¶ 27, citing Davis v. Flickinger, 77 Ohio St.3d 415,
417, 674 N.E.2d 1159 (1997).
We recognize that “[t]ermination of parental rights is an alternative
of last resort but is sanctioned when necessary for the welfare of a child.” Id. at ¶ 7,
citing In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th Dist.1994). Before
a court may terminate parental rights and award permanent custody of a child to the
proper agency, it must determine by clear and convincing evidence that (1) one of
the factors enumerated in R.C. 2151.414(B)(1)(a)-(e) applies, and (2) an award of
permanent custody is in the child’s best interest. R.C. 2151.414(B).
“‘Clear and convincing evidence’ is evidence that ‘will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established.’” In re C.B., 8th Dist. Cuyahoga No. 92775, 2011-Ohio-5491, ¶ 28,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). “Where clear
and convincing proof is required at trial, a reviewing court will examine the record
to determine whether the trier of fact had sufficient evidence before it to satisfy the
requisite degree of proof.” In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-
5496, ¶ 24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
“‘An appellate court will not reverse a juvenile court’s termination of
parental rights and award of permanent custody to an agency if the judgment is
supported by clear and convincing evidence.’” In re J.M-R., 8th Dist. Cuyahoga No.
98902, 2013-Ohio-1560, ¶ 28, quoting In re Jacobs, 11th Dist. Geauga No. 99-G-
2231, 2000 Ohio App. LEXIS 3859, 11 (Aug. 25, 2000), citing In re Taylor, 11th Dist.
Ashtabula No. 97-A-0046, 1999 Ohio App. LEXIS 2620 (June 11, 1999); see In re
AR.S., 2021-Ohio-1958, 174 N.E.3d 28 (8th Dist.).
A. The R.C. 2151.414(B)(1) Factors
The relevant R.C. 2151.414(B)(1)(a)-(e) factors include (a) the child
cannot be placed with either parent within a reasonable period of time or should not
be placed with either parent; (b) the child is abandoned; and (d) the child has been
in the temporary custody of one or more public or private children services agencies
for 12 or more months of a consecutive 22-month period. “Only one of the factors
must be present to satisfy the first prong of the two-part analysis for granting
permanent custody to an agency.” In re D.H., 8th Dist. Cuyahoga No. 110505, 2021-
Ohio-3821, ¶ 27, citing In re L.W., 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657.
Here, the juvenile court found pursuant to R.C. 2151.414(B)(1)(d) that
the children were in the temporary custody of CCDCFS for 12 or more months of a
consecutive 22-month period that commenced in June 2019. This period is
calculated from the time a child enters the agency’s temporary custody to the time
the agency files a motion for permanent custody. Id., citing In re J.C., 8th Dist.
Cuyahoga No. 106272, 2018-Ohio-2234, ¶ 29. The children remained in the
agency’s temporary custody from June 2019, until the agency filed its motion for
permanent custody nearly two years later in May 2021. Within this 22-month
period, the children were in Mother’s custody subject to the agency’s protective
supervision for only one month, from October to November 2020, after which they
were once more removed and placed in the agency’s temporary custody. The record
therefore clearly and convincingly supports the juvenile court’s finding that the
children were in the agency’s custody for 12 or more months of a consecutive 22-
month period. When R.C. 2151.414(B)(1)(d) applies, as it does here, the juvenile
court is not required to make any other finding and may proceed to the best interest
determination. In re L.W., 8th Dist. Cuyahoga No. 107708, 2019-Ohio-1343, ¶ 26;
In re T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 18.
The juvenile court nevertheless made additional findings. The
juvenile court found that the children could not be placed with Mother or their
respective fathers or alleged fathers within a reasonable time or should not be placed
with them as set forth in R.C. 2151.414(B)(1)(a). In cases where R.C.
2151.414(B)(1)(a) applies, courts look to the factors set forth in R.C. 2151.414(E) to
determine whether a child cannot be placed with a parent within a reasonable time
or should not be placed with a parent. In re L.J., 8th Dist. Cuyahoga No. 111221,
2022-Ohio-2278, ¶ 43. These factors include, among others, whether the parent
failed continuously and repeatedly to substantially remedy the conditions that had
caused the removal of the child, including parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative services and material
resources that were made available to the parent (R.C. 2151.414(E)(1)); whether
chronic mental illness, intellectual disability, physical disability, or chemical
dependency of the parent is so severe that it makes the parent unable to provide an
adequate permanent home for the child (R.C. 2151.414(E)(2)); whether the parent
has neglected the child between the filing of the complaint alleging neglect and the
filing of the motion for permanent custody (R.C. 2151.414(E)(3)); whether the
parent has demonstrated a lack of commitment toward the child by actions showing
an unwillingness to provide an adequate permanent home for the child (R.C.
2151.414(E)(4)); whether the parent has abandoned the child (R.C.
2151.414(E)(10)); whether the parent has had parental rights involuntarily
terminated with respect to a sibling of the child (R.C. 2151.414(E)(11)); whether the
parent is incarcerated at the time of the filing of the motion for permanent custody
and will not be available to care for the child for at least 18 months after the motion
was filed (R.C. 2151.414(E)(12)); whether the parent is repeatedly incarcerated and
the repeated incarceration prevents the parent from providing care for the child
(R.C. 2151.414(E)(13)); and whether for any reason the parent is unwilling to provide
food, clothing, shelter, and other basic necessities for the child or prevent the child
from suffering emotional and mental neglect (R.C. 2151.414(E)(14)). The statute
also permits the court to consider “any other factor the court considers relevant.”
R.C. 2151.414(E)(16).
Only one of the enumerated factors under R.C. 2151.414(E) is
required to exist for the court to make the finding that “‘the child cannot be placed
with either parent within a reasonable time or should not be placed with either
parent.’” In re L.W., 8th Dist. Cuyahoga No. 107708, 2019-Ohio-1343, ¶ 29, quoting
In re Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000), and citing
In re R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 2012-Ohio-4290, ¶ 14 (the
existence of only one factor will support the court’s finding that the child cannot be
reunified with the parent within a reasonable time).
Here, the juvenile court based its R.C. 2151.414(B)(1)(a) finding on
the factors set forth in 2151.414(E)(1), (2), (4), (11), and (14) with respect to Mother
and the factors set forth in 2151.414(E)(3), (4), (10), (12), (13), and (14) with respect
to each child’s father or alleged father. The court found that
[f]ollowing the placement of the child[ren] outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by
the agency to assist the parents [or mother and alleged father] to
remedy problems that initially caused the child[ren] to be placed
outside the home, the parents [or mother and alleged father] have
failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child[ren]’s home.
Mother has a chronic mental illness and chemical dependency that is
so severe that it makes the parent unable to provide an adequate,
permanent home for the child[ren] at the present time and, as
anticipated, within one (1) year after the Court holds the hearing in this
matter.
Mother has demonstrated a lack of commitment towards the child[ren]
by her unwillingness to provide an adequate and safe permanent home
for the child[ren]. Testimony revealed that mother allows family
members into her home that are suspected to be gang involved.
Evidence further revealed that in August 2020, an individual was shot
and killed in her home and then in October 2020, her child, [K.H.],
born December 11, 2016, was shot while in her home and while mother
left her children under the supervision of other family members.
Mother has had parental rights terminated involuntarily with respect
to a sibling of the child[ren].
Mother is unwilling to provide a safe and secure shelter or to prevent
the child[ren] from suffering emotional or mental neglect, as evidenced
by her unwillingness to successfully complete a case plan so she can
provide care for the child[ren].
Father[s or alleged fathers] ha[ve] neglected the child[ren] between the
date the original complaint was filed and the filing of this Motion [for
Permanent Custody] by the failure to visit, communicate, or support
the child[ren].
Father[s or alleged fathers] ha[ve] demonstrated a lack of commitment
to toward the child[ren] by failing to regularly support, visit, or
communicate with the child[ren] when able to do so, or by [their] other
actions, ha[ve] shown an unwillingness to provide an adequate,
permanent home for the child[ren].
Father[s or alleged fathers] ha[ve] abandoned the child[ren].
Alleged father [of K.H.] is incarcerated at the time of the filing of this
Motion [for Permanent Custody] and will not be available to care for
the child for at least eighteen (18) months after the filling of the Motion
for Permanent Custody.
Father [of A.H., father of Q.H., and alleged father of K.H. are]
repeatedly incarcerated and the repeated incarceration prevents the
parent[s and alleged father] from providing care for the child[ren].
Father[s or alleged fathers are] unwilling to provide food, clothing,
shelter, or other necessities for the child[ren], or to prevent the
child[ren] from suffering emotional or mental neglect, as evidenced by
[their] unwillingness to successfully complete a case plan so [they] can
provide care for the child[ren].
1. R.C. 2151.414(E)(1)
Pursuant to R.C. 2151.414(E)(1), the juvenile court found that Mother
failed continuously and repeatedly to substantially remedy the conditions that had
caused the removal of the children. The record reveals that the children were
initially removed because Mother did not have stable housing and failed to ensure
that D.H., A.H., and Q.H. regularly attended school. K.H. was not school age at the
time CCDCFS filed its complaint. Mother’s case plan provided for mental-health
and substance-abuse assessment and periodic drug screens; the children’s regular
attendance at school and completion of assignments; counseling for D.H. following
behavioral concerns and multiple school suspensions; and provision for housing
and basic needs.
Mother argues that she substantially completed these case plan
objectives. Substantial compliance with a case plan, however, is not solely
dispositive. In re P.B., 8th Dist. Cuyahoga Nos. 109518 and 109519, 2020-Ohio-
4471, ¶ 92. Under R.C. 2151.414(E)(1), the issue is not whether Mother substantially
complied with the case plan, but whether Mother remedied the conditions that
caused the children’s removal. Id., citing In re J.B., 8th Dist. Cuyahoga No. 98546,
2013-Ohio-1704, ¶ 90.
CCDCFS acknowledged that Mother met several case plan objectives.
The caseworker testified that Mother did obtain housing and completed mental-
health and substance-abuse assessments. The caseworker also testified that while
Mother testified positive for marijuana and amphetamines in March 2019, her later
drug screens came back negative, and this objective was subsequently removed from
the case plan by court order. However, the caseworker also testified that Mother
minimally complied with the substance-abuse objectives. The caseworker testified
that Mother had not completed the intensive outpatient treatment to which she had
been referred by a substance-abuse counselor. The caseworker also testified that
even after drug testing was removed from the case plan, the agency had lingering
concerns about Mother’s substance abuse because she did not complete the drug
screens within 24 hours, which the agency deems an automatic positive. Further,
the caseworker testified that she observed a bong on Mother’s counter, which
Mother denied was hers. The caseworker added that Mother lives alone and refused
drug testing. In addition, the caseworker and Dr. Waltman testified that while
Mother attended mental-health assessments, she did so belatedly and did not
appear amenable to any treatment.
The caseworker’s testimony also revealed that Mother did not meet
other case plan objectives. The caseworker testified that despite repeated
reminders, Mother would return the children from weekend visits without having
completed their homework. The GAL testified that she did not believe Mother was
invested in the children’s education. The caseworker testified that Mother did not
continue the children’s counseling, did not ensure D.H. had his prescription
medication, and did not follow through with the children’s dental appointments.
2. R.C. 2151.414(E)(2)
Under R.C. 2151.414(E)(2), the juvenile court found that Mother
suffers from “chronic mental illness and chemical dependency” that makes her
unable to provide the children with an adequate permanent home. In addition to
the caseworker’s testimony that the agency had lingering concerns about Mother’s
substance abuse, the caseworker also testified that in February 2021, following the
children’s second removal from Mother’s home, the caseworker received a voicemail
at 4:30 a.m., indicating that Mother was at a party. When the caseworker asked
Mother about the call, Mother replied that she is an adult, alcohol is not illegal, and
she can party whenever she wants. Also admitted into evidence was an unresolved
citation for OVI from 2016 and a warrant issued for Mother’s arrest after she failed
to appear, which Mother admitted in her interview with Dr. Waltman.
Concerning Mother’s mental health, the record contains a journal
entry from the 2005 case terminating Mother’s custody of the children’s siblings, in
which the court stated that “Mother has a severe dependent personality disorder and
may have issues with depression” but “does not believe she has any mental health
issues and has not shown any initiative in seeking treatment.” Following his
evaluation of Mother in 2021, Dr. Waltman reached similar conclusions about
Mother’s amenability to treatment. Mother was initially referred in November
2020, but met with Dr. Waltman more than a year later in December 2021, after the
first referral’s lapse required a second referral. Dr. Waltman testified that
psychological testing did not confirm a diagnosable disorder but added that
Mother’s defensive posture during testing could have presented a false negative. Dr.
Waltman also testified that Mother uses denial and minimization to avoid accepting
responsibility for problems associated with her parenting, noting that because of
this mentality, Mother is “not likely to exercise good judgment regarding her
children’s care or needs” and “very likely not to recognize problems and dangers her
children face and consequently will not act on them in an appropriate manner.”
Dr. Waltman offered, for example, Mother’s response to the agency’s
removal of the children following the shooting of K.H. Dr. Waltman testified that
Mother stated she did not know why the children were removed. In his evaluation
report, Dr. Waltman observed that
[Mother] said CFS took custody of her children again in November
after “my baby got shot in the foot.” She admitted she was not present
when the incident occurred and did not know the details of how the
incident occurred. This impressed the examiner because most parents
would react with alarm and want a detailed explanation of how such a
thing could occur. [Mother] lacked insight into why CFS took custody
of her children following that incident saying, “that’s what I’m trying to
figure out too.” She recalled vaguely [that] CFS told her they took
custody because of the shooting. Observing this incident occurred over
13 months before the examiner asked how it was her children were still
in custody. She responded flippantly “because I had to do this,”
referring to the current evaluation. It is her belief CFS had no concerns
about abuse or neglect. She believes the removal of her children was
unwarranted.
Dr. Waltman concluded that Mother’s failure to accept responsibility, coupled with
her history of noncompliance, precluded a recommendation because Mother was
not amenable to services.
A review of the record reveals that Mother has suffered from
substance-abuse and mental-health disorders in the past and failed to fully
cooperate with the agency’s referrals for drug testing, substance-abuse counseling
and treatment, and mental-health assessment.
3. R.C. 2151.414(E)(4)
Under R.C. 2151.414(E)(4), the juvenile court found that Mother
demonstrated a lack of commitment to the children by her unwillingness to provide
a safe and adequate permanent home for them. As noted above, testimony revealed
that following the children’s reunification with Mother in October 2020, K.H.,
Mother’s youngest child, was shot in Mother’s home. The caseworker testified that
a police investigation concluded that the gun was fired inside the home; the gun
belonged to Mother’s nephew, M.B., whom the police suspected was responsible for
the shooting; and M.B. had gang affiliation and a warrant out for his arrest for
violent crimes. The agency subsequently discovered that a few months before K.H.
was shot, another child had been shot and killed in Mother’s home. The caseworker
testified that when she shared her concerns about the children’s safety with Mother,
Mother minimized these concerns and said that M.B. would continue to be welcome
in her home.
4. R.C. 2151.414(E)(11)
The juvenile court found under R.C. 2151.414(E)(11) that Mother had
her parental rights involuntarily terminated with respect to a sibling of the children.
In 2005, the agency was granted permanent custody of two of the children’s now-
adult siblings. The journal entry granting permanent custody was admitted into
evidence and states that Mother “does not support her children.” In the instant case,
the agency initially removed the children because Mother was neglecting their basic
needs. Although the 2005 case is dated, it does show that Mother had not remedied
concerns about her ability to “provide a legally secure placement and adequate care
for the health, welfare, and safety of [her] child[ren].”
5. R.C. 2151.414(E)(10), (12)-(14)
Pursuant to R.C. 2151.414(E)(10), (12)-(14), the juvenile court found
that the children’s respective fathers or alleged fathers have abandoned, neglected,
or demonstrated a lack of commitment to the children by failing to support or visit
them. The record shows that the children have little or no interaction with their
fathers. D.H. was initially placed with his alleged father, J.M., but J.M. could not
manage D.H.’s behavior, and D.H. was subsequently removed. The caseworker
testified that when D.H. was removed, J.M. expressed his wish that D.H. be placed
with a nice family and thereafter stopped communicating with him. The remaining
children’s fathers or alleged fathers are incarcerated and, with the exception of
A.H.’s father, M.T., who communicates with A.H. on a “semiregular basis,” the other
fathers have had no contact with their children.
The juvenile court also found pursuant to R.C. 2151.414(E)(14) that
Mother is unwilling to provide a safe and secure home for the children or prevent
them from suffering emotional or mental neglect. In addition to testimony that
Mother minimized the agency’s concerns about the children’s safety following the
shooting of K.H. in her home, the caseworker also testified that Mother did not make
sure the children continued attending counseling or that D.H. continued taking
medication that he had been prescribed to help him manage his aggression following
diagnoses for oppositional defiant disorder and PTSD.
We acknowledge that Mother has made progress toward meeting
some of the objectives of her case plan. The record reveals that Mother participated
in substance-abuse assessment, tested negative for drugs, and obtained housing. As
this court has previously stated, however, even substantial compliance, “[a]though
commendable,” “does not of itself preclude a grant of permanent custody to a
children services agency” and “does not mean that the parent has achieved the
ultimate goals of the plan or that the parent has substantially remedied the
conditions that caused the children to be removed.” In re A.P., 8th Dist. Cuyahoga
No. 104129, 2016-Ohio-5848, ¶ 19, citing In re J.B., 8th Dist. Cuyahoga Nos. 98566
and 98567, 2013-Ohio-1706. The record also reveals that despite Mother’s progress
toward meeting these case plan objectives, there were some lingering concerns
about Mother’s substance abuse and mental health and serious concerns about the
children’s safety while in Mother’s home. Mother also failed to remedy, and
testimony revealed that Mother took little interest in remedying, other case plan
objectives, such as ensuring that the children complete school assignments, that
D.H. take his medication and continue counseling services to help him manage his
behavior, and that the children’s basic medical and dental care needs are being met.
Taken together, this evidence supports the juvenile court’s finding
that despite the agency’s efforts to reunify the children with Mother, Mother was not
amenable to services and failed to remedy the conditions that caused the children to
be placed outside the home. Standing alone, this evidence is sufficient to satisfy the
first prong of the two-part analysis. Nevertheless, the juvenile court also found that
Mother demonstrated a lack of commitment to the children, was unable to provide
the children with a safe permanent home, and had her parental rights involuntarily
terminated with respect to the children’s siblings for reasons similar to those in the
instant case. Accordingly, we find the record clearly and convincingly supports the
juvenile court’s determination under R.C. 2151.414(B)(1)(a) that the children could
or should not be placed with Mother within a reasonable time.
Having found that the juvenile court properly determined that at least
one of the R.C. 2151.414(B)(1) factors applies by clear and convincing evidence, we
must next determine whether the juvenile court appropriately found by clear and
convincing evidence that granting permanent custody to the agency is in the
children’s best interest under R.C. 2151.414(D).
B. R.C. 2151.414(D)(1) Best Interest Determination
The R.C. 2151.414(D)(1)(a)-(e) factors include (a) the interaction and
interrelationship of the child with the child’s parents, siblings, relatives, foster
caregivers, and out-of-home providers; (b) the child’s wishes, as expressed directly
by the child or through the child’s guardian ad litem; (c) the child’s custodial history;
(d) the child’s need for a legally secured permanent placement and whether that type
of placement can be achieved without a grant of permanent custody to the agency;
and (e) whether any of the factors set forth in R.C. 2151.414(E)(7)-(11) apply. A
juvenile court must consider each of the R.C. 2151.414(D)(1) factors when making a
permanent custody determination, but no one factor is given greater weight than the
others. In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
Further, only one of the factors set forth in R.C. 2151.414(D)(1) needs to be resolved
in favor of permanent custody. In re G.W., 2019-Ohio-1533, at ¶ 72.
Here, the juvenile court found “by clear and convincing evidence that
a grant of permanent custody is in the best interest of the child[ren].” This court
recognizes that “[a] child’s best interests require permanency and a safe and secure
environment.” In re D.H., 2021-Ohio-3821, at ¶ 36, quoting In re K.M., 8th Dist.
Cuyahoga No. 95374, 2011-Ohio-349, ¶ 23. As noted above, the children could not
be placed with Mother because she could not provide a safe and secure home and
continued to neglect the children’s basic needs after their brief reunification in
October 2020. The children could not be placed with their fathers or alleged fathers
because their respective fathers or alleged fathers discontinued care and contact
either expressly, as is the case with D.H.’s father, or due in part to their
incarceration, as is the case with the fathers or alleged fathers of A.H., Q.H., and
K.H. The agency found no connection between the children and their paternal
relatives and no other relatives who were willing or able to provide a permanent
home for the children. The caseworker’s testimony also revealed that the children’s
foster caregivers were meeting their needs and Q.H. had formed a strong connection
with an intervention specialist at his school.
At the court’s request, the children’s GAL put her recommendation
on the record. Although the GAL testified that the children wished to return to
Mother, the GAL believed permanent custody was in the children’s best interest
because Mother failed to appreciate the danger in which she placed the children, was
not invested in the children’s education, and allowed the children’s medical and
dental issues to go untreated. The GAL’s impressions were consistent with Dr.
Waltman’s testimony that Mother is unlikely to recognize the dangers that her
children face and act appropriately as well as the caseworker’s testimony that
Mother was not meeting the children’s basic needs prior to each removal.
The children’s custodial history showed that they were in the agency’s
temporary custody for over a year when their brief return to Mother was cut short
by the shooting of K.H. in Mother’s home, after which Mother became more
resistant to the agency’s assistance and the agency had to create a concurrent plan
of permanent custody. Further, as noted above, the record supports the juvenile
court’s finding under R.C. 2151.414(E)(11) that Mother had her parental rights
involuntarily terminated with respect to the children’s siblings and its finding under
2151.414(E)(10) that the children’s fathers or alleged fathers abandoned them.
A review of the record therefore reveals clear and convincing evidence
supporting the juvenile court’s finding that permanent custody to the agency was in
the children’s best interest and that the juvenile court did not abuse its discretion in
awarding permanent custody of the children to CCDCFS.
Accordingly, Mother’s first and second assignments of error are
overruled.
C. Ineffective Assistance of Counsel
In her third assignment of error, Mother contends that her trial
counsel was ineffective for failing to object to the admission of certain exhibits and
hearsay testimony, not moving to strike Dr. Waltman’s testimony and report after
Dr. Waltman questioned the validity of his findings, and eliciting testimony from the
GAL that was contrary to Mother’s interest. The agency maintains that the
challenged exhibits were self-authenticating, the juvenile court was capable of
disregarding any hearsay in reaching its determination, Mother missed the point of
Dr. Waltman’s testimony concerning the validity of his findings, and the GAL’s duty
was to make a recommendation to the court.
“[A]n indigent parent is entitled to effective assistance of appointed
counsel when the state seeks to terminate her parental rights.” In re L.C., 8th Dist.
Cuyahoga No. 111053, 2022-Ohio-1592, ¶ 55, citing In re A.C., 8th Dist. Cuyahoga
No. 99057, 2013-Ohio-1802, ¶ 45. “‘[T]he test for ineffective assistance of counsel
used in criminal cases is equally applicable in actions seeking to force the
permanent, involuntary termination of parental’ rights.” In re A.C. at ¶ 45, quoting
In re P.M., 179 Ohio App.3d 413, 2008-Ohio-6041, 902 N.E.2d 74, ¶ 15 (2d Dist.).
To prevail on an ineffective-assistance-of-counsel claim, Mother must prove that (1)
counsel’s performance was deficient and (2) that deficiency prejudiced her defense.
State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 10, citing State
v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), and Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mother
must demonstrate that her counsel’s performance fell below an objective standard
of reasonableness and there is a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different. Id., citing Bradley at
paragraphs two and three of the syllabus. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Bradley at 142, quoting
Strickland at 694. The failure to prove either prong of this two-part test makes it
unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
Mother first argues that her counsel failed to object the admission of
juvenile court docket entries from the initial filing of this matter (Case Nos.
AD18915778-81) and the citation and docket entries associated with Mother’s 2016
OVI. The agency argues that these documents are self-authenticating. Evid.R.
902(4) provides that extrinsic evidence of authenticity is not required as a condition
precedent to admissibility for certified copies of public records, and Evid.R. 803(8)
excludes public records and reports from the hearsay rule. In re L.J., 8th Dist.
Cuyahoga No. 111221, 2022-Ohio-2278, ¶ 33, citing In re I.T., 9th Dist. Summit Nos.
27513, 27560, 27581, 2016-Ohio-555 (“certified court documents are self-
authenticating under Evid.R. 902(4) and are admissible under the public records
exception to the hearsay rule”). The same rule applies to the municipal docket entry
associated with Mother’s 2016 OVI. Cleveland v. Boone, 8th Dist. Cuyahoga No.
105762, 2018-Ohio-849, ¶ 29, quoting State v. Davis, 9th Dist. Summit No. 25680,
2012-Ohio-788, ¶ 17 (“certified municipal court documents that are self-
authenticating under Evidence Rule 902(4) are admissible under the public records
exception to the hearsay rule”). The agency’s exhibits are therefore admissible, and
to the extent that Mother contests whether she is the same K.H. who was cited for
OVI and failed to appear, Mother admitted as much in her interview with Dr.
Waltman. See State v. Rucker, 2018-Ohio-1832, 113 N.E.3d 81, ¶ 30 (8th Dist.)
(admissions of a party opponent are admissible non-hearsay under Evid.R.
801(D)(2)). Therefore, Mother has not shown that her counsel was deficient in
falling to object to the public documents admitted at trial.
Mother next argues that her counsel failed to object to hearsay
testimony from Dr. Waltman concerning findings in his report. The agency argues
that Dr. Waltman authored the report and testified to its contents. When an expert
testifies to the contents of his report, the report is not hearsay. Teamster Hous. v.
McCormack, 8th Dist. Cuyahoga No. 69583, 1996 Ohio App. LEXIS 1880, 13 (May
9, 1996), citing Worthington City Schools v. ABCO Insulation, 84 Ohio App.3d 144,
151, 616 N.E.2d 550 (10th Dist.1992). Also, when the trial court is the trier of fact,
we presume that the judge disregards improper hearsay evidence unless it is shown
that the trial court actually relied on that evidence in its judgment. In re M.A.L.-C.,
8th Dist. Cuyahoga No. 111041, 2022-Ohio-1845, ¶ 27, citing In re M.H., 8th Dist.
Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 73. To the extent that anything in Dr.
Waltman’s report constitutes hearsay, Mother does not provide any evidence that
the juvenile court’s custody determination was based entirely upon it. Therefore,
even if Mother can demonstrate that her counsel was deficient in failing to object to
any hearsay evidence included in Dr. Waltman’s report, she has not shown that the
deficiency prejudiced her defense.
Mother also argues that her counsel failed to object to the
caseworker’s hearsay testimony concerning the results of the police investigation
following the shooting of K.H. in Mother’s home. Specifically, Mother challenges
the caseworker’s statements that the police investigation had concluded that the
gunshot came from inside the home; Mother’s nephew, M.B., was believed to be the
shooter; and M.B. was gang affiliated. The agency argues that the reasons for the
children’s November 2020 removal were already litigated at a prior hearing and the
caseworker’s testimony concerned barriers to the agency’s reuniting the children
with Mother. We find the agency’s argument more persuasive. Statements are not
hearsay if they are not offered to prove the truth of the matter asserted. In re D.W.,
8th Dist. Cuyahoga No. 107920, 2019-Ohio-3104, ¶ 48.
Here, the caseworker testified that this was the second shooting in
Mother’s home and that the first occurred in August 2020, during which a child was
killed inside Mother’s home. The agency only learned of the August 2020 shooting
death following the shooting of K.H. in November 2020. The caseworker testified
that when she discussed these shootings with Mother, Mother minimized their
seriousness. The caseworker testified that she had informed Mother about the
agency’s concerns that M.B. might be gang affiliated, and Mother had replied that
M.B. is family and family is always welcome in her home any time. The caseworker
offered this testimony in answer to questions asking why the children could not be
reunited with Mother and why permanent custody to the agency was in the
children’s best interest.
The record also reveals that the juvenile court largely disregarded any
hearsay in the caseworker’s testimony. On cross-examination, counsel for Mother
asked the caseworker how she could conclude that the gun was fired inside the home
if she was not at the scene. The juvenile court sustained the agency’s objection that
the reasons for the children’s November 2020 removal was litigated at a prior
hearing. The juvenile court’s subsequent finding that Mother demonstrated a lack
of commitment to providing an adequate and safe permanent home for the children
was based on Mother’s response to the shootings, not the facts and circumstances of
the shootings themselves:
Mother has demonstrated a lack of commitment towards the child[ren]
by her unwillingness to provide an adequate and safe permanent home
for the child[ren]. Testimony revealed that mother allows family
members into her home that are suspected to be gang involved.
Evidence further revealed that in August 2020, an individual was shot
and killed in her home and then in October 2020, her child, [K.H.],
born on December 11, 2016, was shot while in her home and while
mother left her children under the supervision of other family
members.
Because Mother has not demonstrated that the caseworker’s testimony is hearsay,
she has not shown that her counsel’s performance was deficient. See In re D.W. at
¶ 53. Further, even if the caseworker’s testimony concerning the circumstances
surrounding the shooting of K.H. were hearsay, Mother has not demonstrated that
the juvenile court’s permanent-custody determination was based solely on those
circumstances and therefore has not established that admission of this testimony
undermines confidence in the outcome. See In re M.A.L.-C. at ¶ 27-28.
Mother further argues that her counsel failed to move to strike Dr.
Waltman’s testimony and report after Dr. Waltman testified that his findings may
be invalid. The agency argues that Mother mischaracterizes Dr. Waltman’s
testimony. We agree with the agency. Dr. Waltman testified that he could not
confirm the presence of a diagnosable mental-health or substance-abuse disorder
but noted that Mother’s defensive posture during his evaluation could have
presented a “false negative.” Dr. Waltman also testified that Mother’s minimization
and failure to appreciate her role in providing a safe home for the children did not
make her amenable to treatment. Dr. Waltman’s inability to confirm a diagnosis did
not make his testimony or report irrelevant to the question whether Mother could
provide a legally safe and secure home for the children.
Finally, Mother argues that her counsel failed to object to and elicited
damaging testimony from the caseworker and the children’s GAL. Mother
maintains that her counsel should have objected when the caseworker, who is not a
counselor, was asked whether Dr. Waltman’s evaluation resolved the agency’s
concerns about Mother’s mental health. The caseworker responded that Dr.
Waltman’s evaluation did not position the agency to make a referral because the
evaluation concluded that Mother was not amenable to counseling. The caseworker
was not offering an expert opinion concerning Mother’s mental health, merely
explaining the agency’s response to Dr. Waltman’s evaluation. Mother also
maintains that her counsel prompted harmful testimony from the caseworker by
asking what she had observed about the effect Mother’s alleged drug use had on the
children. In answer to this question, the caseworker offered her observations as a
“non-counselor” and therefore qualified her response. This question also followed
a sustained objection to counsel’s asking whether the caseworker agreed with the
conclusions Dr. Waltman reached in his evaluation. The basis of the objection was
that the caseworker was not a counselor. The record therefore demonstrates that
the juvenile court was capable of disregarding inadmissible evidence.
Mother further maintains that her counsel elicited damaging
testimony from the children’s GAL by asking whether the GAL believed permanent
custody would be in the children’s best interest if it occasioned the children’s
separation from one another. However, it is the GAL’s duty to make a best-interest
recommendation to the juvenile court, and the record reveals that juvenile court
itself requested that the GAL put her recommendation on the record. Therefore,
Mother has not demonstrated that any of these lines of questioning prejudiced her
defense.
Accordingly, Mother’s third assignment of error is overruled.
Judgment is 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.
MARY J. BOYLE, JUDGE
ANITA LASTER MAYS, P.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR