In re L.R.-R. , 2022 Ohio 3744 ( 2022 )

[Cite as In re L.R.-R., 2022-Ohio-3744.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE L.R.-R., ET AL. :
: No. 111444
Minor Children :
:
[Appeal by Mother, X.R.-R.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 20, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-20-901104 and AD-20-901105
Appearances:
Valore & Gordillo LLP and Matthew O. Williams, for
appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
LISA B. FORBES, J.:
X.R.-R. (“Mother”) appeals the juvenile court’s decision terminating
her parental rights and awarding permanent custody of her children, L.R.-R. and
Xi.R.-R. (collectively, the “Children”) to the Cuyahoga County Division of Children
and Family Services (“CCDCFS”). After reviewing the facts of the case and pertinent
law, we affirm.
I. Facts and Procedural History
On January 27, 2020, the Children were committed to the emergency
temporary custody of CCDCFS pursuant to R.C. 2151.31, after “the [C]hildren were
brought to Jane Edna Hunter after their mother failed to pick them up from school.”
At that time, L.R.-R. was eight years old and Xi.R.-R. was six years old. The
following day, CCDCFS filed a complaint alleging that the Children were neglected
and that L.R.-R. was abused. L.R.-R. had “multiple injuries to various parts of his
body in different stages of healing * * * caused by [M]other using a hanger and her
boyfriend using a belt to punish the child.” On the same day, the juvenile court held
a hearing and granted CCDCFS predispositional temporary custody. Mother could
not be located.
On September 17, 2020, Xi.R.-R. was adjudicated neglected and L.R.-
R. was adjudicated abused and neglected. On the same day, CCDCFS was granted
temporary custody of the Children.
CCDCFS was granted two extensions of temporary custody. The first
extension was granted on April 1, 2021, and the second extension was granted on
July 13, 2021.
The court held a hearing on CCDCFS’s motion to modify temporary
custody to permanent custody of the Children on March 16, 2022 (“the hearing”).
The same day, the court journalized an entry for each of the Children terminating
Mother’s parental rights and granting permanent custody of the Children to
CCDCFS. It is from these orders that Mother appeals.
II. March 16, 2022 Hearing
The following testimony and evidence were presented at the
March 16, 2022 hearing.
A. Briana Buckhalter
Briana Buckhalter (“Buckhalter”) testified that she is an “[e]xtended
social worker” for CCDCFS assigned to work on the Children’s case in May 2020.
Buckhalter was “off the case from * * * November 2021 till January 2022” when she
left CCDCFS’s employment briefly; she was reassigned to the Children’s case when
she returned. In the period from November 2021 to January 2022, Stacy Jackson
(“Jackson”) was assigned to the case. After Buckhalter’s return, Buckhalter and
Jackson both worked on the Children’s case.
According to Buckhalter, under the case plan established by
CCDCFS, Mother was referred to parenting services and domestic violence services.
Mother was referred to parenting services because she did not have “age-
appropriate boundaries for the [C]hildren.” When CCDCFS became involved with
the Children, Mother “stated that she didn’t know that [L.R.-R.] had the marks on
him because she kind of let them do their own thing, like bathe themselves * * *.”
Buckhalter testified that Mother “didn’t properly make sure [the Children] were
safe.” Mother was referred to domestic violence services because “[w]hen the case
came to the Agency, there was physical abuse on one of the children.”
For both parenting and domestic violence services, Mother “was
referred to * * * the Child Advocacy Center, and Latino Project.” Buckhalter
explained that “those were the only options at the time” because Mother “only
speaks Spanish.”
Mother reported to Buckhalter that she was going to “do an online
parenting that was in Puerto Rico[.]” However, Buckhalter never received anything
indicating Mother completed that class.
During the time Buckhalter was assigned to this case, Mother “made
no progress” on either her parenting or domestic violence services. According to
Buckhalter, parenting classes are typically 12-weeks long and domestic violence
classes are four-weeks long.
According to Buckhalter, Mother was “picked up for her charges” of
domestic violence and child endangering in October or November 2021. No services
were referred to Mother while she was incarcerated. During CCDCFS’s involvement,
“[t]here was a no-contact order through the Courts.”
Buckhalter testified that she had not had any communication with
Mother since April 2021. Buckhalter recalled there were times before Mother was
incarcerated that Mother would not attend Zoom meetings with her to discuss the
case plan. “She would not join the call, and then I’ll call her on the phone and she
said she’s joining, but then she never joined one.”
In June 2021, the Children were placed with their father L.R.T.
(“Father”) in Arkansas but “they ended up coming back * * * [in] September 2021
due to their behaviors.” Father told Buckhalter that “he can’t handle their
behaviors.” While the Children were placed with Father they were still in CCDCFS
custody.
Buckhalter explained that the behaviors Father referred to were the
Children “sexually acting out, not listening, and kind of doing what they wanted to
do in the home.” These behaviors did not continue when they were placed back into
the foster home.
In addition to the Children’s father, Buckhalter looked into the
Children’s maternal grandmother as a possible guardian. Buckhalter concluded that
she would not be able to care for the Children because she did not have adequate
housing.
Other than the time the Children spent with their father, the Children
were placed in a foster home. Burkhalter observed them with their caregivers there.
Buckhalter recalled that the Children “interacted well with the caregivers. They get
along with the family. There’s other children in the home. They are obedient. They
listen to and take directions * * *.” According to Buckhalter, the Children are “doing
good in the home” and are bonded with their caregivers. The Children also receive
counseling services.
B. Stacy Jackson
Jackson is a social worker for CCDCFS who was assigned to work on
the Children’s case in November 2021. According to Jackson, Mother’s case plan
included “[d]omestic violence, education classes and parenting classes.”
Jackson testified that Mother made no progress on her case plan
services. Jackson never had contact with Mother. Jackson did speak with the social
worker at the jail, who would have visits with Mother and report back to Jackson.
Due to COVID-19 protocols, Mother was unable to engage in parenting or domestic
violence services while she was incarcerated.
Jackson reviewed a certified journal entry admitted into evidence that
reflected Mother’s plea of guilty to “Child Endangering and Domestic Violence,”
both committed against L.R.-R. Jackson testified that as part of her sentence,
Mother was placed at a women’s facility in Akron and, therefore, could not take care
of the Children. Mother was incarcerated the entire time Jackson was assigned the
case. Mother had a no-contact order with L.R.-R. that was still in place the day of
the hearing, according to Jackson.
With regard to the Children’s current situation, Jackson claimed they
were doing “[w]onderful. They’re very bonded with their foster parents and the
siblings that they have acquired by being in that home.”
C. The Children’s Guardian ad Litem
The Children’s guardian ad litem (the “GAL”) opined that it was “in
the children’s best interest that they be committed to the permanent custody of the
Agency.” She made the following recommendation in open court:
As we’ve heard today mom has not completed her case plan services[;]
she’s had little contact with her children.
The [C]hildren have spent a period of time with their father; however,
the father wasn’t able to maintain them in the home.
Neither parent is able to care for the [C]hildren at this time.
They have been in temporary custody for over two years and are doing
very well currently with their current caregivers where they will remain
if permanent custody is granted.
In her report, the GAL stated that the Children had been placed in
their current foster home “after CCDCFS was granted pre-dispositional temporary
custody * * *.” The GAL reported that from June 2021 to September 2021 the
Children were in Father’s care in Arkansas but returned to their original foster home
after Father reported the Children were “out of control.” According to the GAL, the
foster father reported that once the Children were placed back into the foster home,
they “transitioned back into [the] home and schools right away” and “have reported
few ongoing problems with [the Children].”
In the foster home, the Children have “improved socially and
emotionally, they learned English as Spanish had been their primary language, they
became involved in several activities, and they bonded with their foster parents and
became part of their foster family.” “[T]he [C]hildren had behavioral issues when
they first came to [the foster] home in 2020, but after adjusting to a routine and
structure, they improved.” According to the GAL, Children are “thriving and doing
well.” The Children’s foster parents wish to adopt them.
The Children play soccer and basketball and are enrolled in school.
Neither of the Children has been diagnosed with any special needs. At school, L.R.-
R. receives reading services and is being evaluated for an IEP. Both of the Children
receive “English Language Learner services.” Additionally, the Children see a school
counselor and the foster parents are “in the process of starting outside counseling
services for the [C]hildren.”
Regarding Mother, the GAL reported:
Since the time the [C]hildren were placed in the temporary custody of
CCDCFS, Mother has not participated in Case Plan services. There has
been a no contact order between Mother and L.R.-R. in Mother’s
criminal case. Mother had one or two in-person visits and one or two
video visits with he [C]hildren in 2020. Mother has been incarcerated
for the last several months on her criminal domestic violence case
related to the abuse of L.R.-R. It has been reported that she has been
found guilty and sentenced, and the no contact order remains.
According to the GAL, the Children “are not of sufficient age or
maturity to express their wishes” regarding custody.
The report concluded with the GAL’s recommendation that “it is in
the best interests of the [C]hildren that they be committed to the permanent custody
of CCDCFS.” In support of her recommendation, the GAL reiterated that “Mother
is currently incarcerated, there is a no contact order in effect between Mother and
L.R.-R., and Mother has not completed Case Plan services.”
III. Law and Analysis
In her sole assignment of error, Mother argues that “the trial court’s
award of permanent custody and termination of [her] parental rights is against the
manifest weight of the evidence.”
“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 M.J., 8th Dist. Cuyahoga
No. 100071, 2013-Ohio-5440, ¶ 24. Further, a juvenile court’s award of permanent
custody is not “against the manifest weight of the evidence when the record contains
competent, credible evidence by which the court could have found that the essential
statutory elements for any award of permanent custody have been established.” In
re A.N., 8th Dist. Cuyahoga No. 110608, 2021-Ohio-4214, ¶ 29. “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.” (Citations omitted.) In re V.S., 8th Dist. Cuyahoga
No. 109966, 2021-Ohio-1818, ¶ 27.
“Courts apply a two-pronged test when ruling on permanent custody
motions.” In re De.D., 8th Dist. Cuyahoga No. 108760, 2020-Ohio-906, ¶ 16. To
grant the motion, courts first must find that any of the factors in
R.C. 2151.414(B)(1)(a)-(e) apply, or that (B)(2) applies. Id. “Second, courts must
determine that terminating parental rights and granting permanent custody to the
agency is in the best interest of the child or children using the factors in
R.C. 2151.414(D).” Id.A. R.C. 2151.414(B)(1) Factors
In its March 16, 2022 journal entries, the juvenile court made a
finding under R.C. 2151.414(B)(1)(d) that the Children had “been in temporary
custody of a public children services agency or private child placing agency for
twelve or more months of a consecutive twenty-two month period.”
“For the purposes of division (B)(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.
The record indicates that the Children were continuously in CCDCFS
custody from January 27, 2020, until the time of the hearing on March 16, 2022.
L.R.-R. was adjudicated abused and neglected and Xi.R.-R. was adjudicated
neglected on September 17, 2020. Applying R.C. 2151.414, the Children had been in
temporary agency custody for over 23 months at the time of the hearing.
Accordingly, the juvenile court properly found that the Children were in CCDCFS’s
temporary custody for 12 or more months of a consecutive 22-month period,
satisfying R.C. 2151.414(B)(1)(d).
Having found that the Children had been in CCDCFS’s custody for
“twelve or more months of a consecutive twenty-two month period” under
R.C. 2151.414(B)(1)(d), the juvenile court was not required to make further findings
to determine whether the Children cannot or should not be placed with Mother
within a reasonable time under subsection (E) of the statute. Nevertheless, the court
did make an additional finding that the Children “cannot be placed with one of the
child’s parents within a reasonable period of time or should not be placed with either
parent,” and made findings consistent with several (E) subsections.
Under subsection (E)(1), the court found for both of the Children that
[f]ollowing 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.
Under subsection (E)(5), regarding both Children, the court found
that Mother “is incarcerated for an offense committed against the child or a sibling
of the child.”
Under subsections (E)(6), regarding both Children, the court found
that Mother
has been convicted of or pleaded guilty to an offense under division (A)
or (C) of section 2919.22 or under section 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.03, 2905.04, 2905.05, 2907.07, 2907.08,
2907.09, 2907.12, 2907.23, 2907.25, 2907.31, 2907.32, 2907.321,
2907.322, 2907.323, 2911.01; 2911.02, 2911.11, 2911.12, 2919.12,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, or 3716.11 of
the Ohio Revised Code, and the child or a sibling of the child was a
victim of the offense, or the parent has been convicted of or pleaded
guilty to an offense under section 2903.04 of the Ohio Revised Code, a
sibling of the child was the victim of the offense, and the parent who
committed the offense poses an ongoing danger to the child or a sibling
of the child.
Under subsection (E)(15), the court found for L.R.-R. that Mother
has committed abuse as described in section 2151.031 of the Ohio
Revised Code against the child or caused or allowed the child to suffer
neglect as described in section 2151.03 of the Ohio Revised Code, and
the court determines that the seriousness, nature, or likelihood of
recurrence of the abuse or neglect makes the child’s placement with the
child’s parent a threat to the child’s safety.
Under subsection (E)(16) allowing the court to consider “any other
factor the Court finds relevant,” as relates to Xi.R.-R., the court found that “Mother
committed abuse against the child’s sibling and the Court determines that the
serious nature, or likelihood of recurrence of the abuse or neglect makes the child’s
placement with the child’s parent a threat to the child’s safety.”
Upon review, we find that all of the court’s subsection (E) findings are
supported by clear and convincing evidence in the record. According to the record,
Mother pled guilty to domestic violence and child endangering committed against
L.R.-R. and was serving a sentence as a result. A no-contact order had been entered
against Mother prohibiting her from having contact with L.R.-R. Further, the court
heard testimony from Buckhalter and Jackson that Mother had not engaged in nor
completed her case plan services. Though Mother stated that she was going to
engage with services, she never did.
Accordingly, the juvenile court’s subsection (E) findings are
supported by undisputed evidence in the record.
B. R.C. 2151.414(D)(1) and (2) Best-Interest Factors
In determining whether granting CCDCFS’s motion for permanent
custody was in the Children’s best interest, the juvenile court looked at both
R.C. 2151.414(D)(1) and (D)(2). While the juvenile court was not required to look at
both, the court’s findings under each are supported by undisputed evidence in the
record.
1. R.C. 2151.414(D)(1)
In assessing whether the grant of permanent custody was in the
Children’s best interest, the court considered the factors under subsections (a), (b),
(c), and (d) of R.C. 2151.414(D)(1).
Under subsection (a), the court considered “the interaction and
interrelationship of the child with the child’s parents, siblings, relatives, and foster
parents[.]” The court found the Children are “bonded with caregivers and foster
siblings.”
Under subsection (b), the court considered “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[.]” Under this subsection the court found that
the “GAL recommends permanent custody.”
Under subsection (c), the court considered “the custodial history of
the child, including whether the child has been in temporary custody of a public
children services agency or private child placing agency under one or more separate
orders of disposition for twelve or more months of a consecutive twenty-two month
period[.]” The court found that the Children have “been in agency custody for over
two years.”
Under subsection (d), the court considered “the child’s need for a
legally secure permanent placement[.]” The court found that each of the Children
“deserves a safe and stable environment where [they] can thrive. This cannot be
achieved with Mother as she is currently incarcerated, previously committed abuse
against [L.R.-R.], and has not completed case plan services.”
Each of the juvenile court’s findings is supported by undisputed
evidence in the record. Testimony from Buckhalter, Jackson, and the GAL report
demonstrated that the Children are bonded with their foster family who wished to
adopt them; the Children are too young to express their wishes; the GAL
recommended permanent custody be granted to CCDCFS; the Children had been in
agency custody since January 2020; and that Mother was, at the time of the hearing,
serving her sentence for domestic violence and child endangering.
In light of the foregoing, the manifest weight of the evidence supports
the juvenile court’s finding “by clear and convincing evidence that a grant of
permanent custody is in the best interests of the child 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.”
2. R.C. 2151.414(D)(2)
Turning to R.C. 2151.414(D)(2), if all four of its subsections apply,
“permanent custody is in the best interest of the child, and the court shall commit
the child to the permanent custody of a public children services agency or private
child placing agency.” The juvenile court analyzed the evidence in relation to each
of the four subsections and found that permanent custody was in the Children’s best
interest.
Subsection (a) directed the juvenile court to determine whether ”one
or more of the factors in division (E) of [R.C. 2151.414] exist and that the child cannot
be placed with one of the child’s parents within a reasonable time or should not be
placed with either parent.” As addressed, the juvenile court found that evidence had
been presented supporting five of the division (E) factors, and our review affirmed
the juvenile court’s analysis that the undisputed evidence supported the conclusion
that the Children cannot or should not be placed with one of their parents within a
reasonable time.
Subsection (b) directed the juvenile court to determine if the Children
had been in agency custody for two years or longer and, therefore, no longer
qualified for temporary custody pursuant to R.C. 2151.415(D). R.C. 2151.415(D)(4)
states:
the court shall not order an existing temporary custody order to
continue beyond two years after the date on which the complaint was
filed or the child was first placed into shelter care, whichever date is
earlier, regardless of whether any extensions have been previously
ordered pursuant to division (D) of this section.
CCDCFS filed its complaint of neglect and abuse on January 28,
2020, and was granted predispositional temporary custody on the same day.
Therefore, at the time of the March 16, 2022 hearing, it was undisputed the Children
had been in agency custody for over two years.
Subsection (c) directed the court to determine if the child met the
requirements for a planned permanent living arrangement pursuant to
R.C. 2151.353(A)(5). If the child did not meet the requirements, then this element
was satisfied. Here, CCDCFS did not request for the Children to be placed in a
planned permanent living arrangement and there is no evidence that any of the
statutory requirements were met.
Finally, subsection (d) directed the court to determine whether, “prior
to the dispositional hearing, no relative or other interested person has filed or been
identified in a motion for legal custody of the child.” The record indicates no such
motion was filed.
Because the evidence presented at the hearing supported all four
subsections of (D)(2), the juvenile court was required to find that awarding CCDCFS
permanent custody was in the Children’s best interest.
In reviewing permanent custody proceedings, we are mindful that
“the power of the trial court to exercise discretion is peculiarly important. The
knowledge obtained through contact with and observation of the parties and
through independent investigation cannot be conveyed to a reviewing court by
printed record.” Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). This
court has additionally held that the “discretion which the juvenile court enjoys in
determining 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 determination will have on the lives of the parties concerned.” In
re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).
We find the court acted within its discretion, consistent with the clear
and convincing evidence in the record, when it terminated Mother’s parental rights
and granted permanent custody of the Children to CCDCFS. Because the trial
court’s decision was not against the manifest weight of the evidence, Mother’s sole
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.
LISA B. FORBES, JUDGE
ANITA LASTER MAYS, P.J., CONCURS;
CORNELIUS J. O’SULLIVAN, JR., J., CONCURS (WITH SEPARATE
CONCURRING OPINION ATTACHED)
CORNELIUS J. O’SULLIVAN, JR., J., CONCURRING:
I concur with the majority opinion but write separately to address an
egregious error at trial that undermines confidence in the legal system and threatens
the finality of the Children’s placement.
In the moments before the March 16, 2022 trial began, counsel for
father asked the court for a continuance because father recently volunteered for
service in the United States Army. Father’s counsel advised the court that his client
was in basic training in South Carolina (Fort Jackson). Basic training includes the
soldier being on task from 4:30 a.m. to 9:00 p.m.
The state incorrectly opposed the motion for continuance, stating that
father’s Army duty was “voluntary” and that “we,” the state, “are ready to go.”
Without further thought or discussion the trial court improperly denied the father’s
motion for continuance and proceeded to trial in his absence. Although father has
not filed a notice of appeal in this case, given the trial court’s unlawful action, its
judgment is subject to collateral attack at any time during the pendency of his service
in the United States Army.
The Servicemembers Civil Relief Act (“SCRA”), codified in 50 U.S.C.
501 et seq., serves two purposes:
“to provide for, strengthen, and expedite the national defense through
protection extended by this Act to servicemembers of the United States
to enable such persons to devote their entire energy to the defense
needs of the Nation;” and, “to provide for the temporary suspension of
judicial and administrative proceedings and transactions that may
adversely affect the civil rights of servicemembers during their military
service.”
In re Adoption of W.C., 189 Ohio App.3d 386, 2010-Ohio-3688, 938 N.E.2d 1052,
¶ 11-12 (12th Dist.), quoting 50 U.S.C. 502 (1) and (2); see also Brandt v. Weyant (In
re Brandt), 437 B.R. 294, 296 (Bankr.M.D.Tenn.2010).
Thus,
Under the SCRA, a person in military service is entitled to a
continuance in “any civil action or proceeding, including any child
custody proceeding,” 50 U.S.C. app. § 522(a) (2006 & Supp. IV 2011),
upon a showing that military service prevents the person from
appearing in court. “While the act does not arbitrarily stay all trials, it
should be liberally construed so as to protect the civil rights of those
serving in our armed forces during the tenure of their service.” State v.
Wilson, 234 Minn. 570, 572, 48 N.W.2d 513 (1951). (Emphasis added.)
Fazio v. Fazio, 91 Mass.App.Ct. 82, 84-85, 71 N.E.3d 157 (2017).
“The period of a servicemember’s military service may not be included
in computing any period limited by law, regulation, or order for the
bringing of any action or proceeding in a court, or in any board, bureau,
commission, department, or other agency of a State (or political
subdivision of a State) or the United States by or against the
servicemember or the servicemember’s heirs, executors,
administrators, or assigns.”
Brandt at 297, quoting 50 U.S.C. 526(a).
The purpose of the proceeding below was, in part, to provide a final,
safe, and stable environment in which the Children can be raised. The trial court’s
denial of father’s continuance, and the state’s argument against granting him a
continuance, run afoul of the SCRA and subject the court’s final order to collateral
attack at any time during the duration of father’s military service in United States
Army.
Therefore, I concur with the majority, but write separately to
acknowledge the egregious error in the trial proceeding.