In re A.M. , 2019 Ohio 4466 ( 2019 )

[Cite as In re A.M., 2019-Ohio-4466.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.M. :
: No. 108405
A Minor Child :
:
[Appeal By R.M., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 31, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-18903215
Appearances:
Christina M. Joliat, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Laura M. Brewster, Assistant Prosecuting
Attorney, for appellees.
ANITA LASTER MAYS, J.:
Appellant R.M., mother of minor child A.M., appeals the juvenile
court’s award of permanent custody to the Cuyahoga County Department of
Children and Family Services (“CCDCFS”). As required by App.R. 11.1(D), this court
has expedited the hearing and disposition of this appeal. We affirm.
I. History and Facts
A.M. was born in August 2015, to R.M. (hereinafter referred to as
“Mother”) and father C.M. (hereinafter referred to as “Father”). Mother tested
positive for cocaine during the pregnancy and suffered from mental health issues.
Father also suffered from substance abuse issues. CCDCFS became involved with
the family at A.M.’s birth but was already familiar with Mother whose three other
children were removed from her custody due to substance abuse.1
The agency requested protective supervision of A.M. in November
2016, but an event transpired that triggered a filing for emergency temporary
custody to CCDCFS. On April 18, 2017, A.M. was adjudicated to be a neglected and
dependent child under R.C. 2151.03(A)(2) and 2151.04(D) and was committed to the
agency’s temporary custody due to Mother’s substance abuse issues. A.M. was
placed with foster parents and reunited with Mother in December 2017 with an
order of protective supervision by the agency.
Mother relapsed again and in March 2018, A.M. was returned to the
foster parents. On March 9, 2018, CCDCFS filed a complaint for neglect,
dependency, and permanent custody of A.M. pursuant to R.C. 2151.03(A)(2) and
2151.04(D). On March 12, 2018, CCDCFS moved for predispositional temporary
custody of then two-year-old A.M. and requested a full hearing. The agency argued
that A.M. was in immediate danger from his surroundings, and that removal was
necessary to prevent immediate or threatened physical or emotional harm.
1 A.M.’s younger sibling, born in 2016, was voluntarily placed for adoption.
At the March 12, 2018 hearing for predispositional temporary
emergency custody of A.M., Mother and CCDCFS, the only attendees, appeared with
counsel. Mother stipulated to a finding of probable cause and denied the complaint
allegations. On April 3, 2018, the trial court granted emergency temporary custody.
On August 22, 2018, an amended complaint for neglect, dependency,
and permanent custody of A.M., a neglected child under R.C. 2151.03(A)(2) and
2151.04(D) was filed. At the hearing, Mother admitted to the amendments and the
trial court determined for the second time that A.M. was neglected and dependent.
Father filed a motion for legal custody on October 17, 2018, one week
before the full custody hearing on October 24, 2018.
A. October 24, 2019 Dispositional Hearing
1. Social Worker
CCDCFS social worker Tracy Digney (“Digney”) has handled A.M.’s
case since the birth. The agency was contacted by the hospital because Mother
tested positive for cocaine during the pregnancy.
Digney met with Mother and Father at the hospital. Father is the
biological father of A.M. and Mother’s other children. The couple had been married
for more than 15 years and divorced in 2017. Digney allowed A.M. to remain with
Mother who was living in sober housing and participating in counseling, drug abuse
programs, and drug court. Father was living separately and was involved in sobriety
support for his substance abuse issues.
The couple relapsed in fall of 2015 and failed to comply with the
agency’s random drug screen requests during the summer of 2016 though Mother
continued to participate in substance abuse and mental health counseling. Mother
and Father, who had a history of physical altercations, began living together again
in 2016. In November 2016, the trial court granted the agency’s request for
protective supervision of A.M. after an October 2016 domestic violence incident that
resulted in a guilty plea by Father.
A.M. was not removed from the home because of Mother’s continued
participation in counseling and treatment. However, in February 2017, Mother left
A.M. with a friend at Mother’s apartment. The friend left A.M. with a third-party
when Mother could not be located. Police notified CCDCFS. Father was
incarcerated and there were no relatives to care for A.M. CCDCFS placed A.M. in
foster care with foster parents K.H. and L.H.
Mother reentered treatment at the hospital treatment program that
she had just completed. Mother developed a good relationship with the foster
parents and A.M. was reunified with Mother in December 2017. Mother missed
several agency and counseling appointments and admitted to a relapse in February
2018. Since A.M. appeared to be well-cared for, CCDCFS opted to involve the drug
court and allowed A.M. to remain with Mother. The protective supervision order
was still in effect.
In March 2018, Mother left A.M. in their apartment with a sleeping
boyfriend while she went to purchase crack cocaine. Mother did not return, and the
boyfriend left A.M. in the apartment. A.M. found his way to a neighbor’s apartment
who called the police. The agency’s 696-KIDS children’s protection hotline was
contacted. Mother pleaded guilty to endangering children and to a grand theft
charge for taking the boyfriend’s vehicle without permission.
The agency filed a complaint for neglect, dependency, and permanent
custody in March 2018 and A.M. was returned to the foster couple. CCDCFS
requested that Mother contact her father, brother, and sister to assume custody of
A.M., but Mother’s father advised the agency that there was no one to care for A.M.
Mother was still engaged in drug and mental health counseling and was still engaged
in the hospital counseling program at the time of the custody hearing.
Digney testified that Mother continues to struggle with substance
abuse. Mother admitted to using crack cocaine as recently as May 21, 2018, during
her last positive drug screen, but Mother declined to submit to a hair analysis.
Mother also failed to attend an October 2, 2018 screening but later appeared on
October 10, 2018. To complete her case plan, Mother would need to validate that
she is drug-free. Digney pointed to the agency’s records of Mother’s drug abuse
issues since 2002 and emphasized that Mother does not have custody of any of her
children. Children born to Mother in 2008 and 2016 had tested positive for cocaine
at birth.
The parents have split visitation with A.M. at a neighborhood agency
center. Father and A.M. seem to get along well but A.M. whines more with Mother
and becomes defiant upon returning to his foster parents, advising that they are not
his real parents. Father participated in domestic violence counseling during his
domestic violence incarceration and subsequent incarceration for violating a civil
protection order forbidding contact with Mother 2017. Father has been involved
with the agency since his release and, until a week prior to the hearing when he filed
for custody of A.M., supported permanent placement with the agency. (Tr. 54.)
Digney expressed concern about the volatility of Mother and Father’s
relationship and their history of drug use. She was also troubled by the confusion
created for A.M. by the entire series of events, such as A.M. referring to both Father
and Mother’s current boyfriend as “dad.” A.M. also exhibits fear and anxiety due to
the uncertainty of changing residences and visitation.
Digney opined:
I do feel it’s in the best interest for [A.M.] to be in the permanent
custody of the Agency. It’s no longer about [Mother]. It’s no longer
about [Father]. This is a 3-year-old child that has really just been
through a lot in his three years of life, and especially going back and
forth.
I think he already shows signs of dealing with separation issues. I know
that was a concern when [Mother] did have him back. [A.M.] would be
very scared of things due to back and forth with visits and stuff. He was
very frightful of different things.
To have this happen again and to have him come back again if it should
happen, the damage could be irreversible for [A.M.].
(Tr. 57-58.)
Digney last visited Mother in August 2018 at the home of Mother’s
father who has custody of one of Mother’s older sons. Mother continues to engage
in drug abuse and mental health counselling. However, Mother still struggles with
periodic relapses and Digney has observed Mother’s sudden mood swings.
Digney expressed concern that placing A.M. with Mother at her
father’s home would not be in the child’s best interest. Though A.M.’s basic needs
of food and shelter may possibly be met, the presence at the home of Mother’s older
son caused concern due to his use of alcohol and drugs.
Mother consistently attends the weekly visits with A.M. and the
interaction between them has improved, but Mother babies A.M. during his temper
tantrums instead of setting boundaries. Digney also advised that A.M. is more
relaxed and congenial at the home of the foster parents and has bonded with them
as well as another child the couple is adopting.
During cross-examination, Digney confirmed that Father has been
compliant with his case plan to date, participated in domestic violence counseling
and has had negative drug test screens. Earlier in October, Mother told Digney that
Father was going to seek custody of A.M. so that Mother could have him. Based on
Digney’s review of the agency’s computer history for Mother, 60 calls had been
placed to the 696-KIDS hotline concerning Mother’s children from 2001 to the
present.
2. Foster Parents
Foster parent L.H. testified that she and her partner reside in a small
town near a school, have an 11-year-old biological child and are in the process of
adopting another foster child who is one year younger than A.M. and who also
resides with them. A.M. only spoke a few words and seemed rather pale and sickly
when he first arrived. He also suffered from diarrhea for several days after
supervised visits with Mother who would give him coffee during the encounters. The
foster parents developed a positive relationship with A.M. and Mother to prepare
him for reunification and personally returned A.M. to Mother.
The foster parents remained in contact with Mother. In February
2018, the foster parents kept A.M. at their house for the weekend at Mother’s
request. They had also arranged to pick up A.M. two weeks later but Mother said
that A.M. had gone out of town. The foster parents did not hear from Mother after
that.
In March 2018, A.M. was returned to the foster parents who were
advised that A.M. had been left alone at home again. A.M. became reluctant to
separate from the foster parents and would “throw fits” and run away when drivers
arrived to pick him up for visitation with Mother. (Tr. 121.) A.M. is withdrawn,
throws tantrums, and is defiant and angry after he returns from visits with Mother
and the foster parents have seen little improvement.
The foster parents are willing to provide a permanent home for A.M.
They also agreed that they would allow A.M. to have a relationship with his biological
relatives.
3. The Guardian Ad Litem
The guardian ad litem (“GAL”) testified that she was assigned to the
case in 2015. In December 2017, the GAL recommended reunification with court-
ordered protective supervision because Mother had completed the drug court
requirements and the child was doing well.
The GAL’s September 4, 2018 report recommended granting
permanent custody to the agency. The change in opinion resulted from Mother’s
drug relapses as well as visiting the child in the foster home environment where A.M.
seemed happier. Mother “relapsed I think once or twice while she had [A.M.]
back. * * * I would want to see sobriety for like a year. So that is not in the near
future.” (Tr. 145-146.) The GAL did not correspond or communicate directly with
Mother between March and September 2018, except through drug court pretrials
and had not observed A.M. with either parent in 2018. Also, the GAL did not visit
Father’s home because Father had already agreed that the agency should receive
custody and she was not aware of Father’s recent legal custody filing.
4. Findings
The trial court determined that CCDCFS presented clear and
convincing evidence that A.M. should not be reunited with Mother and recited the
foundational events for the decision that dated back to 2015.
The Court finds that the agency did present clear and convincing
evidence that it is not in the best interest of the child to be reunited with
the mother. The mother has five other children not in her care. The
family has been continuously involved with the [CCDCFS] since
February 2015. Both the father and the mother relapsed in the fall of
2015. They both admitted this relapse. Protective Supervision was
granted in 2016 due to domestic violence by the father against the
mother and because the parents were not cooperating with urine
screens.
The child came into custody in February 2017 when the mother could
not be located. The father was incarcerated and no relatives were
available or able to take the child.
The mother was reunified on December 19th or 20th of 2017. The
mother admitted using opium in February 2018 but the child was not
removed at that time. The child was removed from the mother a second
time [o]n March 9, 2018 when the mother again disappeared. The
mother left the baby with a mom who then called 696-KIDS hotline.
The child was returned to the foster home. The mother was convicted
of felony Grand Theft as a result of what occurred on March 9, 2018.
The mother has also been convicted of Child Endangering. The mother
admitted to using crack in February, April, and May of 2018, and the
weekend the child came into custody the second time.
The father was in agreement with Permanent Custody until the week
before trial. The parents were married and he is the father of three
children who are also not in his care and custody. The father was
incarcerated for over a year of this three-year-old child’s life. From
2001 to present there have been 60 calls to the hotline regarding this
family.
The Court particularly notes the testimony from the social worker that
this three-year-old child has been through a lot and the damage would
be irreversible if he were reunified and removed a third time.
Journal entry No. 0911787781 (Nov. 20, 2018).
The trial court held the prayer for permanent custody in abeyance
pending an updated report by the GAL addressing Father’s ability to parent, living
situation, and his current relationship with Mother. The January 9, 2019
dispositional hearing was continued to allow Father to meet with the social worker
and foster parents. The parties subsequently participated in a mediation program
at Adoption Network Cleveland.
B. February 23, 2019 Final Dispositional Hearing
The GAL filed an updated report and testified, along with Father, at
the final dispositional hearing on February 13, 2019. CCDCFS and Mother’s counsel
also appeared. Mother did not attend.
1. GAL
The GAL maintained the prior recommendation to award permanent
custody to the agency. The GAL observed A.M.’s visit with Father and described it
as “appropriate.” (Tr. 206.) Concerned about the domestic violence history between
Mother and Father, the GAL learned from employees at the visitation location that
Mother and Father had attended visits together. A social worker observed Mother’s
vehicle parked in Father’s driveway when passing the residence one evening, and a
friend of Father advised the GAL that Mother and Father were still involved. The
GAL did not see housing as an issue but did not visit the one-bedroom residence and
was not aware of any conflicts between the foster parents and Father.
The GAL opined that Father seemed to waver about assuming custody
of A.M. and appeared to feel pressured.
Counsel: What conversation did you have with the father? What did
you talk to him about?
GAL: About parenting his child.
Counsel: What did [Father] say to you specifically?
GAL: He said that he was wavering back and forth a lot for one.
He said that his father and brother, maybe his older son
have told him that he should get his son back, and they
didn’t like the family situation where he was, but he said
that he was fine, he likes them.
I just felt that maybe he was being pressured.
Counsel: And when father told you that he was wavering, how did
that affect your report which recommended permanent
custody?
GAL: Concerned.
Counsel: Would you ever recommend a child go to someone who’s
wavering on being a parent?
Gal: No. I mean, I was concerned that he’s maybe not 100
percent sure that that is what — maybe that’s what he wants,
but maybe that’s not what’s best for his child.
(Tr. 209-210.)
2. Father
Father testified that he has a one-bedroom apartment and that he is
able to support A.M. on income received from his employment with a nonprofit
organization where he has worked since April 2018. Father also works periodically
for his brother’s tree service and has completed his CCDCFS case plan. Father would
place A.M. in daycare while working.
Father said that he was with A.M. for the first 14 months of his life
and that, since his release from incarceration, he has grown closer to A.M. through
weekly visits. “[T]he young man’s been through a lot.” (Tr. 173.) “I’d like to give
him someplace stable permanently.” Id. “It’s tough” saying goodbye at visits and
“[i]t’s great when it’s just me and him.” (Tr. 174.) “Sometimes when [Mother] shows
up, it can be a little chaotic.” Id.According to Father, Mother has a lot of issues and he tried to help
her when he could but “a couple of weeks” before the hearing, Father decided he
could no longer help her because it began to “affect my peace and serenity.”
(Tr. 175.) Father informed the GAL that he would let the courts handle visitation
arrangements for Mother if he receives custody. Father believes Mother has
outstanding warrants and “absolutely” believes Mother is using drugs again. Father
denies that he is still involved with Mother and said that others who saw them
together were probably just misled.
Father confirmed that his other children urged him to obtain custody
of A.M. and admitted that he wavered on the issue during the summer. “I wanted
to make sure that I wanted him for the right reasons, and I wanted his best interests
at heart.” (Tr. 182.)
Counsel: And if the foster parents kept him and they let you have
visits, would that be like an ideal situation? You could be a
part of his life?
Father: I don’t know if it would be ideal, but I don’t know if there’s
any ideal situation concerning this case anymore.”
Id.Father denied that, after his October 2018 urine screen, he failed to
submit to agency requests for tests on November 6, 2018 and November 18, 2018,
and claimed that he has been sober since his November 16, 2016 incarceration.
Father testified that he has completed classes and counseling for anger
management, domestic violence, and intensive outpatient treatment. He also
submits to drug testing at Cleveland Catholic Charities when asked.
In response to Father’s inquiry whether Ohio recognizes open
adoptions, the trial court responded that it would like to see the social workers,
foster parents, and Father “sit down and talk about the case.” (Tr. 184.) The trial
court continued,
And I am very aware of this will be [A.M.’s] third removal if it doesn’t
work out, so I don’t want to risk that, but I respect where you’re coming
from, sir.
So I want you guys to sit down and talk about this. I’m sensing some
ambiguity here, and there’s been no opportunity for you guys to talk. I
want you to talk. I want you to sit down with the social worker and the
foster parents.
Tr. 185.
Mother’s counsel asked whether Mother would be allowed to
participate in the meeting. The trial court responded:
No. No. And I’ll tell you why. Because if it was just her, I’d grant
permanent custody [to the agency], and I think I spelled that out, did I
not, in my [November 2018] journal entry. And I think she would
introduce a wild card element to this that would be unhelpful.
I’m not gonna — I can’t, you know, separate them out. If you want to
draft it, if you want to brief it why she should be there, go ahead. You
know, I respect your right to do that, but I’m just telling you, [the
GAL’s] concern, and I share it, is the chaos [that] is introduced here.
You know, your concern was that she’s got — and we’ve already had
reunification with your client. That’s why we’re here. This is number
three now.
So, you know, I remember the foster mother talking about, you know,
the child on the first time, and then [Mother] was reunified and we
came back and it changes. No. I don’t think that’s where we — we’re
not going in that direction.
(Tr. 185-186.)
Questioned about losing custody of his other children with Mother,
Father explained that he is more mature and is now sober. Father was also asked
whether he, or his son, have concerns about the suitability of the foster parents.
Counsel: What are your ideas of what a family unit should be?
Father: Two people raising a child that love each other. That’s the
ideal.
Counsel: What about where [A.M.] is right now?
Father: I think that those women are — it sounds like a great place.
(Tr. 190.) Father suggested that counsel subpoena his son if he wanted additional
information.
Father explained that his protection order violation resulted from
sending a letter to Mother about A.M. and his well-being. He served six months
“because I didn’t follow directions.” (Tr. 197.) “There was nothing violent about
that letter.” Id.If awarded custody, Father would allow A.M. to visit with the foster
parents. “I spent a lot of restless nights in the penitentiary when I knew that [A.M.]
was at home with — you know. I slept better once I met [the foster parents]” and “I
knew that he was in a safe place.” (Tr. 201.)
Father has continued to engage with Catholic Charities on a
voluntary basis. He explained that his drugs of choice have been alcohol and
cocaine. Father admitted that he is still an addict because addiction can be in
remission but cannot be cured. Father suffered a temporary drop in attendance at
Catholic Charities in November 2018. “[I]t’s not something that I planned on
attending the rest of my life. I go to Alcoholics Anonymous meetings for that.”
(Tr. 204.)
C. Findings
On March 6, 2019, the trial court incorporated its prior findings and
determined that permanent custody is in the best interest of the child and that the
child could not be placed with the parents within a reasonable time. Father has not
appealed the trial court’s order. We address Mother’s timely appeal below.
II. Assignment of Error
Mother’s single assignment of error charges that the trial court’s
decision is not based upon sufficiently clear and convincing evidence, is against the
manifest weight of the evidence, and erroneously determines that the permanent
custody award to the agency is in the best interest of the child.
Parents have a constitutionally protected, fundamental interest in the
management, custody, and care of their children. Troxel v. Granville, 530 U.S. 57,
66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). “We recognize, however, that
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.
However, a parent’s right to raise a child is not absolute and 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., 8th Dist. Cuyahoga No. 104325,
2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29, quoting In re Cunningham, 59 Ohio St.2d
100, 106, 391 N.E.2d 1034 (1979).
CCDCFS filed for permanent custody on the ground that A.M. has
been declared to be a neglected and dependent child under R.C. 2151.03(A)(2) and
R.C. 2151.04(D). A neglected child is one “[w]ho lacks adequate parental care
because of the faults or habits of the child’s parents, guardian or custodian.”
R.C. 2151.03(A)(2).
A dependent child is one
(A) Who is homeless or destitute or without adequate parental care,
through no fault of the child’s parents, guardian, or custodian;
(B) Who lacks adequate parental care by reason of the mental or
physical condition of the child’s parents, guardian, or custodian;
(C) Whose condition or environment is such as to warrant the state,
in the interests of the child, in assuming the child’s guardianship;
(D) To whom both of the following apply:
(1) The child is residing in a household in which a parent,
guardian, custodian, or other member of the household
committed an act that was the basis for an adjudication
that a sibling of the child or any other child who resides in
the household is an abused, neglected, or dependent child.
(2) Because of the circumstances surrounding the abuse,
neglect, or dependency of the sibling or other child and the
other conditions in the household of the child, the child is
in danger of being abused or neglected by that parent,
guardian, custodian, or member of the household.
R.C. 2151.353(A)(4) authorizes a trial court to grant permanent
custody to the agency where, as in this case, a child has been adjudicated as
neglected, dependent, or abused. The trial court must determine by clear and
convincing evidence that: (1) “the child cannot be placed with one of the child’s
parents within a reasonable time or should not be placed with either parent”
pursuant to R.C. 2151.414(E); and (2) “permanent commitment is in the best interest
of the child” pursuant to R.C. 2151.414(D)(1). R.C. 2151.353(A)(4).
A. Standards of Review
“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 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).
“Clear and convincing evidence” is that measure or degree of proof
that is more than a “preponderance of the evidence,” but does not rise to the level of
certainty required by the “beyond a reasonable doubt” standard in criminal cases.
In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing
In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing
Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512
N.E.2d 979 (1987). It “produces in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.” In re M.S. at ¶ 18.
“It is well established that when some competent, credible evidence
exists to support the judgment rendered by the trial court, an appellate court may
not overturn that decision unless it is against the manifest weight of the evidence.”
In re C.T., 8th Dist. Cuyahoga No. 87159, 2006-Ohio-1944, ¶ 15, quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).
Therefore,
[t]he discretion which a trial court enjoys in custody matters 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 Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001-
Ohio-4137. The knowledge a trial court gains through observing the
witnesses and the parties in a custody proceeding (i.e., observing their
demeanor, gestures and voice inflections and using these observations
in weighing the credibility of the proffered testimony) cannot be
conveyed to a reviewing court by a printed record. Id., citing Trickey v.
Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). In this regard, the
reviewing court in such proceedings should be guided by the
presumption that the trial court’s findings were indeed correct.
Seasons Coal Co., Inc., supra at 80. As the Supreme Court of Ohio has
stated, “it is for the trial court to resolve disputes of fact and weigh the
testimony and credibility of the witnesses.” Bechtol v. Bechtol, 49 Ohio
St.3d 21, 550 N.E.2d 178 (1990).
In re C.T. at ¶ 15.
The R.C. 2151.414(D) determination of a child’s best interest under
the R.C. 2151.414(D) factors “is an application of the court’s discretion based upon a
nonexclusive list of factors. We review that determination for an abuse of
discretion.” In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 43. “An
abuse of discretion implies that the court’s decision was unreasonable, arbitrary, or
unconscionable, and not merely an error of law or judgment.” Id., citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
B. Discussion
1. R.C. 2151.414(E) — Placement with Parent within a
Reasonable Time
Mother concedes that A.M. has been in the custody of CCDCFS since
March 2018. However, Mother argues that the record does not support the finding
by clear and convincing evidence that A.M. cannot be placed with Mother within a
reasonable period of time. In support of her position, Mother offers that she has:
(1) substantially completed her case-plan objectives, (2) participated in mental
health services through a family services agency since 2015; (3) participated in
domestic violence counseling; (4) completed substance abuse counseling at hospital
program; and (5) has been drug free since May 2018.
Mother also offers that her current period of sobriety and historical
willingness to participate in substance abuse and mental health abatement activities
should be equitably balanced against the social worker’s concerns of relapse. The
record demonstrates that the relapse concerns are empirically supported.
In the final judgment entry, the trial court incorporated its findings
from the November 20, 2018, journal entry and added that it continued the
January 9, 2019 to allow completion of the investigation regarding suitability of the
Father. The trial court also noted that Father, the social worker and the foster
parents “were able to discuss the case through a mediation program at Adoption
Network Cleveland.” Journal entry No. 091299158 (Mar. 7, 2019), p. 1.
The trial court determined that R.C. 2151.414(E)(1) applies:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353
of the Revised Code whether a child cannot be placed with either
parent within a reasonable period of time or should not be placed
with the parents, the court shall consider all relevant evidence. If
the court determines, by clear and convincing evidence, at a
hearing held pursuant to division (A) of this section or for the
purposes of division (A)(4) of section 2151.353 of the Revised
Code that one or more of the following exist as to each of the
child’s parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or
should not be placed with either parent:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and
diligent efforts by the agency to assist the parents to
remedy the problems that initially caused the child to be
placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the
child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall
consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services
and material resources that were made available to the
parents for the purpose of changing parental conduct to
allow them to resume and maintain parental duties.
Id. at p. 1-2.
The trial court held,
Pursuant to R.C. 2151.353(A)(4), the Court finds by clear and
convincing evidence that the child cannot and should not be placed
with either parent for the following reasons in accordance either [sic]
Division (E) of Section 2151.414:
(E)(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by
the agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home.
The Guardian Ad Litem for the child recommends Permanent Custody
as being in the * * * best interest of the child. There is no written motion
for Legal Custody to any relative or interested individual.
The Court finds that the child’s continued residence in or return to the
home would be contrary to the child’s best interest and welfare.
Id.
The trial court also determined that the agency made “reasonable
efforts” at reunification. R.C. 2151.419:
The Court finds that CCDCFS has made reasonable efforts to prevent
placement and/or to make it possible for the child to remain in or
return to the home of the mother. The Court finds that CCDCFS has
made reasonable efforts to finalize the permanency plan as described
at trial. The permanency plan for the child is approved. The case plan
is the permanency plan. The permanency goal is adoption.
Journal entry No. 091299158, p. 2. (Mar. 7, 2019). The criminal conviction record
of Mother and Father as well as Mother’s drug relapses are additional relevant
factors under R.C. 2151.414(E)(16).
The trial court concluded:
It is therefore ordered that the order made committing the child to the
Emergency Temporary Custody of CCDCFS is terminated. The
parental rights of mother * * * and father * * * are hereby
terminated. * * *
The Court finds that the child’s continued residence in or return to the
home of mother will be contrary to the child’s best interest.
Id.
The agency engaged in multiple efforts for permanent reunification
of A.M. with Mother in spite of Mother’s history of chemical dependence. Mother
tested positive for cocaine consumption during the pregnancy. Three of Mother’s
children had been removed from the home due to the substance abuse issues and
custody of a sibling born to Mother less than a year after A.M.’s birth was voluntarily
relinquished.
Notwithstanding the questionable history, CCDCFS viewed as factors
against removal of A.M. at that time: (1) Mother’s participation in substance abuse
and mental health counseling; (2) Mother’s residency in a sober environment; and
(3) that Mother and Father, who suffered from chemical dependency and an abusive
relationship history, were not residing together.
A.M.’s first emergency removal due to Mother’s substance abuse
stemmed from Mother’s failure to return after leaving A.M. with a friend so that
Mother could secure drugs. Police and agency intervention were required. A.M. was
declared neglected and dependent, the agency obtained temporary emergency
custody and A.M. was placed in foster care. Mother’s relationship with the foster
parents and A.M. was developed and nurtured for potential reunification with
Mother. Mother participated in drug abuse and mental health counseling. Mother
and A.M. were reunited, and CCDCFS maintained protective supervision.
Just a few months after reunification, Mother left A.M. in her
apartment with a sleeping boyfriend so that Mother could obtain drugs. The
boyfriend left A.M. alone at the apartment and A.M. wandered to the home of a
neighbor who contacted the police. Mother pleaded guilty to endangering children
and grand theft of the boyfriend’s vehicle.
The foster parent testified that the initially positive relationship with
Mother and A.M. deteriorated when A.M. rejoined the foster parents several months
later. A.M. was clingy, reacted negatively to being transported for visits with Mother
and was irritable and angry after returning from visits. Mother allowed A.M. to visit
the foster parents during the first reunification but, during the second reunification,
contact eventually ceased. The GAL recommended granting custody to the agency
due to Mother’s inability to overcome the substance abuse issues. No family
members were able to assume custody. Father also testified that Mother was still
using drugs and that she has mental health problems. The trial court, social worker,
and GAL expressed great concern that a third reunification would be traumatizing
for three-year-old A.M.
We find that the trial court’s decision that A.M. could not be placed
with Mother within a reasonable time pursuant to R.C. 2151.414(E) is supported by
clear and convincing evidence.
2. R.C. 2151.414(D)(1) — Best Interests of the Child
When determining the child’s best interest pursuant to
R.C. 2151.414(D)(1), courts analyze all relevant factors including: (1) the interaction
and interrelationship of the child with others; (2) the wishes of the child expressed
directly or through the GAL; (3) the custodial history of the child; (4) the child’s need
for a legally secure placement and whether such a placement can be achieved
without permanent custody; and, (5) whether any of the factors in divisions
R.C. 2151.414(E)(7) to (11) apply. In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-
Ohio-827, ¶ 29-34, citing R.C. 2151.414(D)(1). “If even one of the factors exists, the
court is mandated to enter a finding that the child cannot or should not be placed
with the parents.” In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 26,
quoting In re Hauserman, 8th Dist. Cuyahoga No. 75831, 2000 Ohio App. LEXIS
338 (Feb. 3, 2000).
The “best interest determination” focuses on the child, not the parent.
R.C. 2151.414(C); In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th
Dist.1994). The discretion that the juvenile court enjoys in deciding whether an
order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
decision will have on the lives of the parties concerned. Id. at 316.
The trial court determined that awarding permanent custody to the
agency is in A.M.’s best interest under R.C. 2151.414(D)(1) and cited the underlying
factors:
The Court further finds that, in accordance with Division (D)(1) of
R.C. 2151.414, Permanent Custody is in the child’s best interest: The
interaction and interrelationship of the child with the parents, siblings,
relatives and foster parents; the wishes of the child (the child is too
young to express wishes); the custodial history of the child, including
whether the child has been in temporary Custody of a public child
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 child’s need for a legally
secure permanent placement and whether that type of placement can
be achieved without a grant of Permanent Custody, and whether any of
the factors in divisions (E)(7) to (11) of this section apply in relation to
the parents and child. These factors weigh in favor of Permanent
Custody.
Journal entry No. 091299158 (Mar. 6, 2019), p. 2.
As this court has previously recognized on the question of manifest
weight of the evidence, a “claim that a factual finding is against the manifest weight
of the evidence requires us to examine the evidence and determine whether the trier
of fact clearly lost its way.” In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-
827, ¶ 44, citing In re M.W., 8th Dist. Cuyahoga No. 83390, 2005-Ohio-1302.
In reviewing an appeal involving an award of permanent custody,
“the ultimate question for a reviewing court is whether the trial court’s
findings are supported by clear and convincing evidence.” In re K.H.,
119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. This is
because 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 re S.C., 8th Dist. Cuyahoga No. 108036, 2019-Ohio-3664, ¶ 74.
The trial court reiterated on the record that it would be interested in
the results of a meeting between the Father, foster parents, and the agency but stated
that it would not order that the meeting occur. Father has not appealed the trial
court’s final judgment. The trial court also stated on the record several times that
the focus is on the child. “I do want to emphasize, because it did make a big
impression on me, is [Digney]’s comment about the damage that would happen if
this child is reunified and removed a third time.” (Tr. 214.)
The weight of the evidence supporting the permanent placement of
A.M. with CCDCFS is clear and convincing. A.M. has been adjudicated a dependent
child and the agency has been involved in his life since birth in 2015 to a drug
addicted mother. The agency has twice assumed emergency temporary custody of
A.M., twice attempted reunification with Mother and has exercised protective
supervision. Mother continues to suffer from drug relapses in spite of ongoing
mental health and substance abuse counseling services and there are no family
members willing or able to assume custody. More than 60 calls to the agency’s 696-
KIDS emergency hotline have been made regarding children in Mother’s household.
All of Mother’s children have been removed from her care.
A.M. has been placed with foster parents who love, support, and
would like to adopt him. The foster parents are amenable to allowing visitation by
A.M.’s biological family members. Notwithstanding Mother’s participation in
programs to address her drug addiction and documented mental health concerns,
she is unable to provide an adequate and suitable home for A.M. The concerns
expressed by the social worker, trial court, and GAL about the traumatic emotional
impact of removing three-year-old A.M. from the foster parents a third time are
well-founded.
The record contains clear and convincing evidence that the trial court
did not abuse its discretion in determining that permanent custody is in the best
interest of the child. The trial court’s decision to grant permanent custody to
CCDCFS is not against the manifest weight of the evidence.
“The purpose of the termination of parental rights statutes is to make
a more stable life for the dependent children and to facilitate adoption to foster
permanency for children.” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-
314, ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio
App. LEXIS 7860, *5 (Aug. 1, 1986). We find that the purpose has been fulfilled by
the trial court’s award.
The assigned error is without merit.
III. Conclusion
The trial court’s 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.
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ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR