In re J.A. , 2022 Ohio 1324 ( 2022 )

[Cite as In re J.A., 2022-Ohio-1324.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.A., JR. :
: No. 111029
A Minor Child :
:
[Appeal by K.B., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 21, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD20901089
Appearances:
Wargo Law, LLC, and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant K.B. (“Mother”) appeals the decision of the Cuyahoga County
Juvenile Court terminating her parental rights and awarding custody of her minor
son, J.A., Jr., to the Cuyahoga County Department of Children and Family Services
(“CCDCFS” or “agency”). After a thorough review of the law and applicable facts, we
affirm the judgment of the juvenile court.
I. Factual and Procedural History
CCDCFS became involved in this matter in January 2020, when J.A.
was placed in agency custody after suffering burns to his lower extremities when he
was just 18 months old. Mother stated that she believed that he had “[done] this to
himself.” J.A. had suffered immersion burns from his knees to his feet, requiring
skin-graft surgery. Medical professionals opined that the injuries were non-
accidental and not consistent with the explanation provided by the family.
In December 2020, the agency moved to modify temporary custody to
permanent custody. In April 2021, a trial was held on the agency’s motion, after
which the trial court denied the motion and continued temporary custody. In its
entry denying the motion, the juvenile court ordered Mother to complete a
substance abuse assessment and follow all recommendations, to submit to drug
testing by CCDCFS by April 28, 2021, and to submit to random drug testing twice a
month, as requested by the agency.
CCDCFS worker T’ara Williams (“Williams”) was assigned to the case
after the denial of permanent custody in April 2021. At that time, she learned that
Mother was engaged in a domestic violence program and a parenting program; she
also claimed to be engaged in mental health services. However, Williams did not
believe that Mother had benefitted from those services. Mother was still residing
with her family in the same home where the incident with J.A. happened where one
of the family members had inflicted serious abuse on J.A. With regard to how the
burns happened, she maintained that J.A. “did this to himself.” Williams was
concerned that Mother lacked empathy for J.A. and the trauma he had endured.
Williams was also concerned that Mother had not benefitted from the
domestic violence services. J.A.’s alleged father1 had been charged with domestic
violence against Mother, and Mother had failed to appear at two different trial dates,
resulting in the case against him being dropped. Further, when Williams asked
Mother if she still maintained a relationship with J.A.’s alleged father, she stated
that she could not because the agency told her she could not. This concerned
Williams because Mother seemed to not recognize that the relationship was
unhealthy and dangerous, but instead only that the agency would not allow her to
continue it.
While Williams did not ever see Mother and J.A.’s alleged father
together, she still had concerns that they were still involved. During the pendency
of this matter, J.A.’s alleged father had been charged with felonious assault (against
another victim), a felony of the second degree. The indictment stated that he had
caused or attempted to cause physical harm using a deadly weapon, which was a
gold SUV. This concerned Williams because Mother also drives a gold SUV, which
Williams had personally seen her drive.
Williams was also concerned whether Mother was receiving mental
health services. Mother provided a phone number for her therapist at Ohio
1 Paternity was not established in this matter. The agency requested that both
Mother and J.A.’s alleged father submit to paternity testing. A caseworker took J.A. for
testing, but neither parent followed through.
Guidestone, but Williams was never able to make contact with the therapist. She
asked Mother to sign a release of information form so that the agency could verify
that she was engaging in mental health services, but Mother did not ever sign any
release.
During the pendency of the case, Mother was charged with aggravated
possession of drugs, a felony of the fifth degree. Williams stated that the offense was
for cocaine, but Mother had told her that it was ecstasy and later stated that it was
marijuana.
Mother was sentenced to probation and was required to provide drug
screens. She was inconsistent with reporting to her probation officer and was later
arrested for failing to comply with the terms of her probation.
Substance abuse services were added to Mother’s case plan. Williams
referred her for a drug assessment through Recovery Resources, but Mother did not
go to the initial intake because she stated that she was “not a crackhead.”
Mother submitted to several urine screens and tested positive for
cocaine and marijuana in June 2021. In July 2021, she tested positive for marijuana.
Mother was referred for additional screens but did not comply.
Mother’s visitation with J.A. had been inconsistent but became more
consistent in early July 2021. Many of her visits with J.A. had been virtual due to
COVID concerns, and Mother was often not engaged during these visits. When
Williams was assigned to the case, the visits became in-person each week with
Williams supervising. Mother attended approximately 75 percent of the visits and
either canceled or simply did not show up to the rest.
In July 2021, CCDCFS again moved to modify temporary custody of
J.A. to permanent custody. The motion stated that Mother had failed to complete
the ordered drug and alcohol assessment, had failed to consistently submit to
random drug screens, had tested positive for cocaine and marijuana in June 2021,
and had failed to engage in mental health services. The motion further noted that
Mother had failed to address ongoing domestic violence concerns and failed to
consistently visit with J.A.
Trial was held on the motion in October 2021. Testimony was
presented from Williams and the guardian ad litem, Paul Berman. Both Williams
and the GAL testified that granting permanent custody to the agency was in the best
interest of J.A. Following the hearing, the trial court granted the motion for
permanent custody to CCDCFS and terminated Mother’s parental rights.
Mother then filed the instant appeal, raising one assignment of error
for our review:
The evidence presented to the trial court did not support, by clear and
convincing evidence, a finding that permanent custody to the agency
was in the best interests of the child; whereas an extension of
temporary custody should have been granted.
II. Law and Analysis
The right to raise one’s own child is “‘an essential and basic civil right.’”
In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52 Ohio
St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S. 745,
753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (a parent has a “‘fundamental liberty
interest’ in the care, custody, and management” of his or her child). However, this
right is not absolute. It is “‘always subject to the ultimate welfare of the child, which
is the polestar or controlling principle to be observed.’” In re L.D., 2017-Ohio-1037,
86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106,
391 N.E.2d 1034 (1979).
Because termination of parental rights is “‘the family law equivalent of
the death penalty in a criminal case,’” In re J.B., 8th Dist. Cuyahoga No. 98546,
2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368,
776 N.E.2d 485, ¶ 14, it is “an alternative of last resort.” In re Gill, 8th Dist.
Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when
necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and
101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645
N.E.2d 812 (9th Dist.1994). “‘All children have the right, if possible, to parenting
from either natural or adoptive parents which provides support, care, discipline,
protection and motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio
App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Where parental rights are
terminated, the goal is to create “a more stable life for the dependent children” and
to “facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing
In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860,
5 (Aug. 1, 1986).
Before a juvenile court can terminate parental rights and grant
permanent custody of a child to CCDCFS, it must satisfy the two-prong test set forth
in R.C. 2151.414. First, the juvenile court must find by clear and convincing evidence
that one of the following conditions set forth in R.C. 2151.414(B)(1)(a) through (e)
exists:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period if, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state, and the
child cannot be placed with either of the child’s parents within a
reasonable time or should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) 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.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
Second, the juvenile court must find by clear and convincing evidence
that granting permanent custody to the agency is in the best interest of the child.
R.C. 2151.414(B)(1). “Clear and convincing evidence” is that measure or degree of
proof that “produce[s] in the mind of the trier of fact a firm belief or conviction as to
the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus; In re M.S. at ¶ 8. 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 A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
In this case, CCDCFS moved for permanent custody under R.C.
2151.414(B)(1)(d), which provides that the child had been in agency custody for 12
or more months of a consecutive 22-month period. The trial court determined that
this condition was satisfied — J.A. had been in agency custody for over 20 months
of a consecutive 22-month period. Mother does not dispute this finding but argues
that the juvenile court should have extended temporary custody and allowed her
more time to engage in her case plan. Consequently, we need only determine if
permanent custody was in the best interest of J.A.
Mother asserts that at the time of the hearing, she had completed a
parenting program. While the social worker testified that parenting was a concern,
Mother argues that she never referred Mother to a parenting coach or made any
other additional referrals to address the issue. In addition, while there was also
concern about Mother having a psychological evaluation, the case worker never
made a psychological evaluation referral for Mother; regardless, Mother maintains
that she had engaged in counseling services through Ohio Guidestone. Additionally,
with regard to the domestic violence issue, Mother completed a domestic violence
course well before the hearing, and no additional referrals were made for Mother on
this issue.
Mother further contends that the agency had no concerns with
Mother’s visitation with J.A. Williams testified that as J.A. has become older and
has seen his mother more regularly, he understands better who she is and becomes
excited to see her.
We review a juvenile court’s determination of a child’s best interest
under R.C. 2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No.
95188, 2010-Ohio-5618, ¶ 47. An abuse of discretion implies that the court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In determining the best interest of a child at a hearing held pursuant
to R.C. 2151.414(A)(1), the juvenile court must 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 * * *;
(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.
R.C. 2151.414(D)(1).
A juvenile court is required to consider each relevant factor under R.C.
2151.414(D)(1) in making a determination regarding permanent custody, but
“[t]here is not one element that is given greater weight than the others pursuant to
the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532,
¶ 56. This court has previously stated that only one of these enumerated factors
needs to be resolved in favor of the award of permanent custody. In re Moore, 8th
Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing In
re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993). Further,
the Supreme Court of Ohio has clarified that “R.C. 2151.414(D)(1) does not require
a juvenile court to expressly discuss each of the best-interest factors in R.C.
2151.414(D)(1)(a) through (e). Consideration is all the statute requires.” In re A.M.,
Slip Opinion No. 2019-0923, 2020-Ohio-5102, ¶ 31.
Here, the juvenile court stated that it considered the relevant factors
set forth under R.C. 2151.414(D)(1) when assessing J.A.’s best interests. Upon
careful review of the record, we do not find that the juvenile court abused its
discretion in determining that permanent custody was in J.A.’s best interest.
R.C. 2151.414(D)(1)(a) relates to the interaction and interrelationship
of the children with various significant individuals in the child’s life, including
parents, siblings, relatives, and foster caregivers. The record demonstrates that J.A.
had been placed with his maternal great aunt, who was interested in adopting him.
There was testimony that J.A. was in a loving home with a caregiver that he trusted.
While Mother’s visitation with J.A. had become more consistent as
the case went on, there was testimony that she did not show or canceled
approximately 25 percent of the visits. She was engaged with J.A. during these
visits, and he had grown to be excited for the visits and come to recognize her as his
mother. However, this court has stated that “‘the mere existence of a good
relationship is insufficient. Overall, we are concerned with the best interest of the
child, not the mere existence of a relationship.’” In re K.M., 8th Dist. Cuyahoga No.
95374, 2011-Ohio-349, ¶ 23, quoting In re R.N., 8th Dist. Cuyahoga No. 83121,
2004-Ohio-2560.
There was also testimony that Mother did not appear to have empathy
toward J.A. regarding the burns he had incurred and did not seem to accept that
someone in her family had seriously abused her son and instead chose to believe
that he had done it to himself.
Under R.C. 2151.414(D)(1)(b), the juvenile court was to consider the
child’s wishes as expressed directly or through their GAL. At the time of trial, J.A.
was only three years old and too young to express his wishes in regard to permanent
custody. “The juvenile court properly considers the GAL’s recommendation on the
permanent-custody motion as part of the R.C. 2151.414(D)(1)(b) analysis where the
children are too young to express their wishes.” In re B/K Children, 1st Dist.
Hamilton No. C-190681, 2020-Ohio-1095, ¶ 45. In the instant matter, the GAL
recommended permanent custody to CCDCFS, based upon Mother’s only partial
completion of the case plan, her failure to demonstrate that she did not have a
substance abuse issue, her failure to demonstrate that she is attending therapy,
J.A.’s status as a special needs child, and his current placement in a loving home
with a secure caretaker.
R.C. 2151.414(D)(1)(c) is relative to the child’s custodial history, which
Mother concedes. As noted above, J.A. has been in the custody of the agency for
over 20 months, over half of his life.
R.C. 2151.414(D)(1)(d) relates to the child’s need for a legally secure
placement and whether that can be achieved without a grant of permanent custody.
The trial court in this case found that J.A. cannot be placed with one of his parents
within a reasonable time or should not be placed with either parent. Specifically,
the trial court made findings under R.C. 2151.414(E) including Mother’s “failure to
remedy” and “lack of commitment.” “‘Once a court determines, by clear and
convincing evidence, that one of the enumerated factors exists, the court must enter
a finding that the child cannot or should not be placed with either of his parents
within a reasonable time.’” In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-Ohio-
4126, ¶ 43, quoting In re Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th
Dist.2000). As noted above, paternity was not established and J.A.’s alleged father
is not a part of this matter.
Under R.C. 2151.414(D)(1)(e), the juvenile court was to consider
whether any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 applied in
relation to Mother and J.A. Although it did not distinguish between Mother or the
alleged father, the trial court found that one of the parents had abandoned the child.
Clearly, this must relate only to J.A.’s alleged father as there was no evidence that
Mother had abandoned J.A. While none of the remaining factors in R.C.
2151.414(E)(7) to (11) apply to Mother, the court was only required to consider all of
the factors in 2151.414(D)(1) in determining the best interest of J.A.; it did not have
to find that each factor applied.
The above-mentioned findings were all supported by the testimony
presented at trial. Moreover, the court was guided by the recommendation of the
GAL, who spoke on behalf of J.A. and recommended that it was in J.A.’s best interest
to grant the agency permanent custody.
Mother argues that the sole issue that remained, and that she should
have been given additional time to address, was the substance abuse aspect. Mother
acknowledges that she failed drug screens but maintains that temporary custody
could have been extended to allow her time to address the substance abuse issue.
R.C. 2151.353(G) provides that the statutory term for a temporary
custody order is one year. While the agency is permitted to seek up to two six-month
extensions of temporary custody, the decision to exercise that statutory right is left
in the sound discretion of the agency and is not mandated by statute. See R.C.
2151.415(A)(6) and (D)(1)-(4). See also In re A.C., 2d Dist. Montgomery No. 26211,
2014-Ohio-4402, ¶ 18 (noting that “[the agency] was not required to seek an
extension of temporary custody * * * [and] was entitled to move for permanent
custody rather than to seek an extension”). The juvenile court may extend
temporary custody if it finds that extension is (1) in the best interest of the child, (2)
significant progress has been made on the case plan, and (3) “there is reasonable
cause to believe that the child will be reunified with one of the parents or otherwise
permanently placed within the period of extension.” R.C. 2151.415(D)(1).
We disagree with Mother that an extension was warranted in this
matter. J.A. had been in the custody of CCDCFS for over 20 months and yet Mother
had not completed her case plan. She did not fully comply with the juvenile court’s
order to submit to urine screens, and when she did actually submit to screens, she
twice tested positive for drugs. In addition, Mother was charged with felony drug
possession and later violated her probation from that case.
While Mother contends that the substance abuse was the only
problem, Williams testified that there were other concerns about Mother, including
her failure to remedy issues and her lack of commitment. Williams testified that
since July 2021, Mother’s visits with J.A. were weekly in-person with Mother
attending approximately 75 percent of the visits. During the visits, Mother engaged
with J.A. and was attentive to him “for the most part.” Williams testified that J.A.
did not readily recognize Mother when the visits began, but later would become
more excited about the visits and disappointed when the visits were canceled.
Williams stated that J.A. was learning Mother as his mother.
Williams testified that J.A. is a very sweet child, but he does not
communicate well. He is three years old but verbalizes and functions as an 18-
month-old. He cannot express if there is a problem and cannot identify the cause of
any discomfort or frustration. Williams testified that this concerned the agency
because if he were to be returned to Mother and something happened, they would
not know.
In addition, there are concerns that J.A. may be autistic, and at the
time of trial, he was on a waiting list to be evaluated. Mother does not believe that
there is an issue regarding autism and that “that’s just how he is,” which also
presented a concern for the agency.
Moreover, J.A. suffers from lingering trauma from the burns he
incurred. Williams testified that she is concerned because Mother does not appear
to have empathy for J.A. nor does she acknowledge that someone in her family
seriously abused J.A.
The fact that Mother has been visiting J.A. more consistently does not
negate the evidence demonstrating her failure to complete her case plan services by
the time trial commenced. See In re A.L.A. & A.S.A., 11th Dist. Lake Nos. 2011-L-
020 and 2011-L-021, 2011-Ohio-3124, ¶ 108 ( A parent “is afforded a reasonable, not
an indefinite, period of time to remedy the conditions causing the children’s
removal.”).
We note that Mother was already given additional time to complete
her case plan when the court originally denied the agency’s motion for permanent
custody in April 2021. Rather than utilizing the additional time, appellant did not
comply with the amendments to her case plan ordered by the trial court and
continued to abuse drugs, even being charged with aggravated possession of
cocaine. There is no evidence in the record that it would be beneficial to J.A. to allow
Mother to have additional time to try to achieve what she already should have
accomplished. Accordingly, the juvenile court properly found that an extension of
temporary custody was not in J.A.’s best interest.
III. Conclusion
After thoroughly reviewing the entire record, we affirm the juvenile
court’s judgment granting permanent custody of J.A. to CCDCFS. The juvenile
court’s judgment was not against the manifest weight of the evidence, and an
extension of temporary custody was not warranted. 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.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR