In re J.B. , 2023 Ohio 930 ( 2023 )

[Cite as In re J.B., 2023-Ohio-930.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.B., ET AL. :
: No. 111797
Minor Children :
:
[Appeal by A.B.-B., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 23, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-18914313 and AD-18914314
Appearances:
Judith M. Kowalski, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
LISA B. FORBES, J.:
A.B.-B. (“Mother”) appeals the juvenile court’s decision terminating
her parental rights and awarding permanent custody of her twins J.B. and N.B.
(d.o.b. 2/2/2013) (collectively “the children”), to the Cuyahoga County Division of
Children and Family Services (“CCDCFS”). Mother argues that (1) “the trial court
abused its discretion in awarding permanent custody, because the state did not
present sufficient, clear and convincing evidence necessary to justify termination of
parental rights,” and (2) the “court erred and abused its discretion by not granting
the request by Mother’s counsel for a continuance.” After reviewing the facts of the
case and pertinent law, we affirm the juvenile court’s judgment.
I. Procedural History
On November 20, 2018, CCDCFS filed a complaint in juvenile court
alleging that J.B. and N.B.1 were abused, neglected, and dependent and requested
predispositional temporary custody of the children to CCDCFS. Specifically, the
complaint alleged that “Mother has engaged in excessive and inappropriate
discipline of the children. On * * * November 19, 2018, mother struck J.B. on the
left side of his face, which resulted in swelling. Mother did not seek medical
attention for the child.” The complaint also alleged that Mother lacked stable
housing, had a history of homelessness, and had “a mental health diagnosis,
specifically depression, which prevents her from providing appropriate care for the
children.”
On December 18, 2018, CCDCFS filed a case plan for Mother. Her
objectives included taking parenting classes, obtaining stable housing, and
completing a mental-health evaluation, as well as treatment if needed.
1The complaint also concerned two other children of Mother, who were ultimately
placed in the custody of their father, who is not the father of J.B. and N.B. These two
other children are not a part of the instant appeal. Additionally, J.B. and N.B.’s father is
not a part of the instant appeal.
On March 4, 2019, Mother stipulated to an amended complaint, the
court adjudicated J.B. and N.B. abused, neglected, and dependent, and the court
granted temporary custody of the children to CCDCFS. The court extended
temporary custody in November 2019.
In July 2020, Mother’s case plan was amended because she had made
“substantial progress with case plan objectives.” Specifically, Mother completed
parenting classes and a mental-health evaluation, which “noted no concerns with
substance abuse at this time.” Additionally, Mother had “maintained stable housing
since July of 2019.” The amended case plan also found that J.B. and N.B. were
“exhibiting emotional/behavioral outbursts in school” and in their foster home and
recommended “special education services to address their cognitive and
developmental delays.”
On October 5, 2020, CCDCFS filed another amended case plan for
Mother, which included the following change: “Mother has been compliant with
case plan services. Mother to begin weekend unsupervised overnight visits, as well
as continue weekly unsupervised visits.”
On October 6, 2020, the court extended temporary custody a second
time, finding that “[t]here has * * * not been significant progress on the case plan by
the mother * * * and progress has not been made in alleviating the cause for the
removal of the child[ren] from the home.” The court also found that returning J.B.
and N.B. to Mother’s home “will be contrary to the child[ren]’s best interest and
welfare.”
On October 7, 2020, CCDCFS filed a motion to terminate temporary
custody and return J.B. and N.B. to Mother’s care. CCDCFS stated in the motion
that
it is in the best interests of the children to be returned home to the
mother because she has successfully completed the case plan and has
remedied the risks that initially caused the child[ren] to be removed.
Specifically, she has completed parenting education and a
psychological evaluation. Mother is engaging in ongoing therapy. She
has stable housing and employment and is able to meet the basic needs
of the children. Additionally, the mother has been having unsupervised
visits with the children and all of the visits have gone well.
On November 3, 2020, CCDCFS filed another amended case plan
“suspend[ing] overnight/unsupervised visitation with mother, due to current
allegation and investigation.” A semiannual review (“SAR”) dated October 28,
2020, explained the following:
There were recent allegations of drug use in mother’s home by mother
and boyfriend. * * * During the first overnight visit it’s reported the
children had access to marijuana in the home. The agency has
requested mother complete a hair sample drug screen but it has not
happened yet. The overnight visits have been suspended pending the
hair screen results. Mother has been testing negatively through urine
screens since June. There are also concerns for mother’s live in
boyfriend being controlling, negative, and threatening the children.
The agency currently has a pending motion for reunification and
currently ha[s] a second extension of [temporary custody]. Due to time
frames, active safety concerns, and lack of compliance, the agency is
moving forward with a motion [for permanent custody] for [the]
children.
Another SAR was conducted on April 29, 2021, and filed in court on
May 12, 2021. The SAR reported that Mother completed a urine drug screen on
October 15, 2020, which was negative, and a hair follicle drug screen on
November 18, 2020. As a result, the aforementioned allegations were
unsubstantiated on November 24, 2020.
On May 26, 2021, the court held a hearing on CCDCFS’s motion to
terminate temporary custody. On June 15, 2021, the court ordered that Mother, her
boyfriend, and any other adult living in Mother’s household complete a hair follicle
drug test and background check. The court continued the hearing on CCDCFS’s
motion.
On September 2, 2021, CCDCFS filed a “motion to amend
dispositional prayer from ‘terminate temporary custody * * *’ to permanent custody
to CCDCFS.” This motion alleged that Mother failed to comply with the hair follicle
drug test ordered on June 15, 2021, and “failed to communicate with CCDCFS or the
children since May 26, 2021, a period of longer than [90] days.” Several hearings
on this motion were scheduled and continued. According to the record, Mother
received notice of these hearings.
The hearing on CCDCFS’s motion for permanent custody took place
on June 14, 2022. Mother did not appear. Mother’s counsel requested a
continuance, which the court denied. On June 15, 2022, the court issued a journal
entry awarding permanent custody of J.B. and N.B. to CCDCFS. It is from this order
that Mother appeals.
II. Hearing Testimony
At the beginning of the hearing on CCDCFS’s motion for permanent
custody, Mother’s counsel requested a continuance, stating that Mother “is not here.
She has not been arraigned and we have been playing phone tag for the last five
months.” The court responded as follows: “This is time number 18 with respect to
this case or these cases, so the request to reset it, continue it because mom failed to
appear when notified * * *, I’m not going to continue it, so we’re gonna go forward.”
Prior to testimony regarding J.B. and N.B., the CCDCFS attorney
made the following statement to the court:
The Agency is seeking permanent custody under 2151.414(B)(1)(d).
These children have been in Agency custody since I think November of
2018.
The father has not made any effort to have any relationship with them.
The mother has not had any meaningful relationship with them in the
last — since approximately May of last year, so at this time the Agency
believes that permanent custody is in the best interest of [J.B.] and
[N.B.]
The attorney appointed to represent J.B. and N.B. stated the
following:
Your Honor, [the children] have voiced that they would like to live with
their mother, so I ask that once you hear the testimony, you take that
into consideration.
The children do have a right to state where they’d like to be, and they’ve
made it known that they want to be with their mother.
Olivia Grucza, who is an ongoing social service worker for CCDCFS,
testified that J.B. and N.B. were removed from Mother’s custody in November 2018,
because J.B. “came to school with a knot, an egg on his forehead. * * * [Like] a goose
egg from him being hit on the top of the head.” Grucza further testified that J.B. and
N.B. have not been in the custody of anyone other than CCDCFS since November
2018.
According to Grucza, Mother initially completed all of her case plan
objectives. Mother’s case plan included stable housing, which she obtained in July
2019; parenting classes, which she completed in July 2019; mental-health
counseling, which she completed in the beginning of 2021; a psychiatric evaluation,
which she completed in August 2020; and an alcohol and drug assessment, which
she completed in 2020, although “[t]here was no recommendation from that
assessment * * *.”
Grucza testified that CCDCFS attempted overnight visits with Mother
for J.B. and N.B. An “extended visit” occurred at one point, but in May 2021, “[The
Magistrate] ordered that the boys go back into foster care so mom can do some
additional services. Once those orders were put in place, mom no longer wanted to
have communication with” CCDCFS.
Grucza testified as follows about the additional services ordered: “A
drug screen, urine and hair follicle drug screen, and that any member 18 or over
living in her home to do background checks and urine and hair drug screens.”
Grucza “sent multiple purchase orders” for these drug screens for Mother and
Mother’s boyfriend. Grucza sent Mother text messages and emails, as well as called
Mother and left voicemails, regarding these tests. Asked if Mother ever responded,
Grucza replied, “Few and far between.” Grucza further testified that Mother has
never requested assistance with these tests.
According to Grucza, J.B. and N.B. would call Mother sometimes. “I
think they talked to her five times over the phone since * * * May of 2021.” Mother
has never initiated a call to J.B. and N.B, although she “will call them back if she
misses their call * * *.”
Grucza testified that she had no knowledge of Mother’s current
housing situation. She has unsuccessfully attempted to visit Mother’s home. “Any
time I send her email or text messages, I ask can I come see basic needs, can I see
your home? Usually the response is no, we don’t want the Agency here or I need to
pay for what I’ve done to her family.” Grucza further testified that she has been
unable “to assess Mother’s ability to provide for the children’s basic needs.”
According to Grucza, J.B. and N.B. are “doing well” in their foster
home. “Behaviors have decreased, they’re no longer wetting the bed, they’ve done
well in school. They participate in a[n] after-school program.” Both children are on
“IEPs.” “One is for speech and language, and the other one I think is not specific. I
think it’s for behaviors.” According to Grucza, there are no relatives who have been
approved to take custody of J.B. and N.B.
Grucza concluded that permanent custody to CCDCFS is in the best
interest of J.B. and N.B. “[d]ue to the fact that mother is not visiting. They want to
be with mom, but the bond is obviously strained now. I can’t assess any basic needs
or safety in her home and we have no information on the boyfriend that lives in her
home.”
Wildon Ellison, the guardian ad litem (“GAL”) for J.B. and N.B.,
testified as follows:
The children are doing good. They have a lot of behavioral issues and
other issues. They’re in therapy. They’re doing well.
They’re in a Bellefaire program. It’s just kinda tragic. You know,
mother did not abandon the children and she maintained her
visitation, she did some drug screens. She did some background
checks.
If she did that, maybe we’d be in a different position, but as the ongoing
social worker has indicated, it is true that any contact that the children
say we want to call mom and then she may or may not call back.
She never initiated a call. It’s kind of heartbreaking. They do love their
mother, but unfortunately it’s not in their best interest that their
relationship be continued.
I believe it’s in their best interest that permanent custody be granted,
unfortunately.
The court found the following on the record:
Based on the testimony and evidence presented with respect to mom
* * * the Court is going to — and the report of Mr. Ellison — find that
the Agency has met their burden of clear and convincing evidence and
will grant the Motion for Permanent Custody.
I find that it’s in their best interest * * * and prepare a journal entry
reflecting what’s transpired today.
III. GAL Report
The GAL’s final report was filed on June 9, 2022, and the pertinent
parts follow:
I visited and interviewed [J.B. and N.B.] at their foster home. The
child(ren)’s needs are being met. The home and interactions were
healthy and appropriate. At the beginning of the case, [J.B. and N.B.]
both arrived with old marks and scars. [J.B.] had the bruises indicated
in the complaint. The children indicated to foster mother physical
abuse by mother and sisters. [J.B.] has been tested and has been
diagnosed with ADHD [and] cognitive and developmental delays * * *.
[J.B. and N.B.] both have PTSD, are in 3rd grade with IEPs and did not
know numbers (1,2,3) or ABCs when originally placed. * * * [J.B. and
N.B.] receive summer camp and counseling through Bellefaire.
Bellefaire therapist * * * indicates good progress. [J.B. and N.B.]
receive behavioral therapy through Ohio Mentor for behavioral issues
and bed wetting. * * *
[M]other, boyfriend, and boyfriend’s 18 year old daughter have not
complied with the court’s order for finger prints and drug tests. Mother
also acknowledged not visiting the children and indicated that she was
moving. Recently, mother has not returned GAL’s attempts to contact
her for a home visit or case plan compliance.
The GAL concluded that Mother has not “substantially complied with
court orders [or] case plan services, or show[n] that [she] may have benefitted from
any case plan services * * *.” In considering the best interest of the children, the
GAL recommended that permanent custody of J.B. and N.B. be granted to CCDCFS.
IV. Court’s Journal Entry
The court found that Mother was “duly advised on the [June 14, 2022
custody] hearing on April 29, 2022, by mail, [but] was not present.”
In granting permanent custody of J.B. and N.B. to CCDCFS, the court
found that the children have been in custody since November 27, 2018, which is 12
or more months of a consecutive 22-month period. The court further found that the
children have been abandoned, that mother has “failed continuously and repeatedly
to substantially remedy the conditions causing the child[ren] to be placed outside
the child[ren]’s home,” and that “Mother has a chronic mental illness that is 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 * * * year after the
Court holds the hearing in this matter.” The court found that Mother has neglected
the children by failing “to regularly visit, communicate, or support” them and “is
unwilling to provide food, clothing, shelter, and other basic necessities for the
child[ren] as evidenced by her unwillingness to successfully complete a case plan so
she can provide care for the child[ren].”
V. Law and Analysis
We address Mother’s assignments of error out of order for ease of
discussion.
A. Motion for Continuance
In Mother’s second assignment of error, she argues that the “court
erred and abused its discretion by not granting the request by Mother’s counsel for
a continuance.”
Juv.R. 23 governs continuances in juvenile court, and it states that
“[c]ontinuances shall be granted only when imperative to secure fair treatment for
the parties.” Furthermore, Cuyahoga County Common Pleas Court, Juvenile
Division, Loc.R. 35(C) states as follows:
No case will be continued on the day of trial or hearing except for good
cause shown, which cause was not known to the party or counsel prior
to the date of trial or hearing, and provided that the party and/or
counsel have used diligence to be ready for trial and have notified or
made diligent efforts to notify the opposing party or counsel as soon as
he/she became aware of the necessity to request a postponement. This
rule may not be waived by consent of counsel.
“The grant or denial of a continuance is a matter which is entrusted
to the broad, sound discretion of the trial judge. An appellate court must not reverse
the denial of a continuance unless there has been an abuse of discretion.” State v.
Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). Factors that courts consider
when ruling on motions for continuances include the following:
[T]he length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived;
whether the defendant contributed to the circumstance which gives rise
to the request for a continuance; and other relevant factors, depending
on the unique facts of each case.
Id. at 67-68. Information will not always be available about each of these factors,
and courts are not required “to assign particular weight to any one factor.” Musto
v. Lorain Cty. Bd. of Revision, 148 Ohio St.3d 456, 2016-Ohio-8058, 71 N.E.3d 279,
¶ 23.
In the case at hand, Mother’s attorney asked for a continuance at the
hearing on CCDCFS’s motion for permanent custody. She did not request a specific
length of time for the continuance. Multiple continuances had been granted
previously in this case, with the court noting that “[t]his is time number 18 with
respect to this case * * *.” Mother’s counsel requested the continuance for a
legitimate reason, i.e., Mother did not appear at the hearing. Mother’s attorney
noted that she and Mother “have been playing phone tag for the last five months.”
Additionally, the court stated that Mother had been “notified” about the hearing.
Upon review, we find that the court acted within its discretion by
denying Mother’s attorney’s request for a continuance. J.B. and N.B. were removed
from Mother’s home in November 2018, and the dispositional hearing on CCDCFS’s
motion for permanent custody was held approximately three and one-half years
later, in June 2022. See In re K.R., 8th Dist. Cuyahoga No. 111750, 2023-Ohio-466,
¶ 35 (finding no abuse of discretion by denying a continuance, after “the case had
been on the court’s docket for almost two years, [because] [p]roceeding with the
scheduled trial date was in K.R.’s best interest and supported her need for stability
and permanency”).
Furthermore, under the local rule, “[n]o case will be continued on the
day of trial or hearing except for good cause shown.” Mother offered no reason for
her absence on the day of the hearing in juvenile court, and she offers no explanation
on appeal. See In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-Ohio-3373, ¶ 31
(finding no abuse of discretion in denying a continuance when mother “failed to
show up for the permanent custody hearing without communicating with the court
or her counsel regarding the circumstances of her absence”).
Accordingly, Mother’s second assignment of error is overruled.
B. Termination of Parental Rights
In Mother’s first assignment of error, she argues that “the trial court
abused its discretion in awarding permanent custody, because the state did not
present sufficient, clear and convincing evidence necessary to justify termination of
parental rights.”
1. Standard of Review — Permanent Custody
“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. Pursuant to R.C. 2151.414(B)(1), “the court may
grant permanent custody of a child to a movant if the court determines * * *, by clear
and convincing evidence, that it is in the best interest of the child to grant permanent
custody of the child to the agency” and that any of the R.C. 2151.414(B) factors apply.
“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. Second, courts must determine that terminating
parental rights and granting permanent custody to CCDCFS is in the best interest of
the child or children using the factors in R.C. 2151.414(D).” Id.
2. R.C. 2151.414(B)(1) Factors
In its June 15, 2022 journal entry granting permanent custody of J.B.
and N.B. to CCDCFS, the court found that two R.C. 2151.414(B)(1) factors applied.
First, the court found that, pursuant to R.C. 2151.414(B)(1)(b), the children were
abandoned. Second, the court found that, pursuant to R.C. 2151.414(B)(1)(d), the
children have been in temporary custody of CCDCFS for 12 or more months of a
consecutive 22-month period.
3. R.C. 2151.414(D)(1) Best-Interest Factors
Also in the June 15, 2022 journal entry, the court considered the best-
interest factors under R.C. 2151.414(D)(1)(a)-(e), including: the relationship of the
children with their family and foster caregivers; the wishes of the children via the
GAL; the custodial history of the children; the need for a legally secure placement;
and that the children were abandoned. See In re A.M., 166 Ohio St.3d 127, 2020-
Ohio-5102, 184 N.E.3d 1, ¶ 31 (“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.”).
4. Additional Findings
Furthermore, the court concluded that the children “cannot be placed
with mother * * * within a reasonable time or should not be placed with the mother”
and made the following additional findings under R.C. 2151.414(E).
Under subsection (E)(1), the court found that Mother has “failed
continuously and repeatedly to substantially remedy the conditions causing the
[children] to be placed outside the [children’s] home.”
Under subsection (E)(2), the court found that “Mother has a chronic
mental illness 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 * * * year * * *.”
Under subsection (E)(4), the court found that “Mother has
demonstrated a lack of commitment towards the child[ren] by failing to regularly
support, visit, or communicate with the child[ren] * * * [and] has shown an
unwillingness to provide an adequate, permanent home for the child[ren].”
Under subsection (E)(10), the court found that Mother has
abandoned the children.
Under subsection (E)(14), the court found that “Mother is unwilling
to provide food, clothing, shelter, and other basic necessities for the child[ren] as
evidenced by her unwillingness to successfully complete a case plan so she can
provide care for the child[ren].”
5. Clear and Convincing Evidence Supports the Trial Court’s
Findings Under R.C. 2151.414(B)(1) and (E)
Upon review, we find that clear and convincing evidence supports the
trial court’s findings under R.C. 2151.414(B)(1) and (E).
Pursuant to R.C. 2151.011, “a child shall be presumed abandoned
when the parents of the child have failed to visit or maintain contact with the child
for more than ninety days, regardless of whether the parents resume contact with
the child after that period of ninety days.” Grucza testified at the June 2022 hearing
that Mother has had no communication with CCDCFS since May 2021, Mother is
“not visiting” the children, and Mother has spoken to the children on the phone “five
times” since May 2021, with all of the phone calls initiated by the children. Although
the GAL stated at the hearing that Mother has not abandoned the children, he noted
that Mother acknowledged “not visiting” the children. Furthermore, the GAL stated
that he has had no “recent” contact or communication with Mother.
Both Grucza and the GAL have been unable to assess whether
Mother’s current living conditions would be appropriate for her having custody of
J.B. and N.B. Despite Mother’s efforts to comply with her case plan services early in
this case, she failed to comply with the June 2021 order for a drug test for herself
and drug tests and background screenings for adult members of her household.
Grucza testified that she and CCDCFS engaged in “diligent efforts * * * to assist”
Mother with these services, including reaching out to her and scheduling
appointments.
Upon review, we find that there is clear and convincing evidence in
the record that Mother has abandoned the children, failed to remedy the conditions
causing the children’s removal, demonstrated a lack of commitment to the children,
and shown an unwillingness to provide for the children.
Additionally, we find clear and convincing evidence in the record that
the children have been in custody for more than 12 months of a consecutive 22-
month period. The hearing took place in June 2022, and the children have been in
CCDCFS’s custody since November 2018.
As to the court’s finding that Mother’s “chronic mental illness”
impacts her ability to provide for the children, we find that Mother stipulated to this
allegation in the amended complaint.
6. Clear and Convincing Evidence Supports the Trial Court’s
Findings Under R.C. 2151.414(D) that Permanent Custody
to CCDCFS is in the Children’s Best Interest
Grucza and the GAL testified that the children were doing well in their
foster home placement. All of the evidence in the record shows that, although the
children love Mother, their relationship has become strained because of Mother’s
unwillingness to cooperate with CCDCFS and provide for the children. The
custodial history shows that the children have been in foster care from November
2018 through the June 2022 hearing. Mother was allowed overnight or “extended”
visits starting on October 7, 2020, and by November 3, 2020, these visits were
suspended because of allegations of drug use. Although the allegations were
ultimately unsubstantiated, Mother failed to comply with subsequent drug screens.
The Ohio Supreme Court has held that, regarding the best interest of
the child portion of a permanent custody case, “[t]here is not one element that is
given greater weight than the others pursuant to” R.C. 2151.414(D). In re Shaefer,
111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. “R.C. 2151.414 requires
the court to find the best option for the child once a determination has been made
pursuant to” R.C. 2151.414(B)(1)(a)-(e). Id. at ¶ 64.
In the case at hand, the court determined that the children were
abandoned and had been in CCDCFS’s custody for 12 or more months of a
consecutive 22-month period. Upon review, and given these determinations, we
find that the court properly considered the relevant statutory factors and acted
within its discretion when it found that permanent custody to CCDCFS was in the
best interests of the children.
Accordingly, we find that clear and convincing evidence in the record
supports the trial court’s decision to terminate Mother’s parental rights and grant
custody of J.B. and N.B. to CCDCFS. Mother’s first 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
FRANK DANIEL CELEBREZZE, III, P.J., and
EILEEN T. GALLAGHER, J., CONCUR