In re K.T. , 2023 Ohio 1288 ( 2023 )

[Cite as In re K.T., 2023-Ohio-1288.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.T. :
: No. 111996
A Minor Child :
:
[Appeal by CCDCFS] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 20, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD19914705
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Anthony R. Beery and Zachary J. LaFleur,
Assistant Prosecuting Attorneys, for appellant.
Gregory T. Stralka, for appellee.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant Cuyahoga County Division of Children and Family Services
(“CCDCFS” or “the agency”) brings the following appeal challenging the decision of
the Cuyahoga County Court of Common Pleas, Juvenile Division’s decision granting
legal custody of K.T. (d.o.b. 01/16/2019) to S.T. (“Father”) and denying the agency’s
motion for permanent custody. After a thorough review of the law and facts, we
reverse the decision of the juvenile court granting legal custody to Father; reverse
the decision denying the agency’s motion for permanent custody; and remand.
I. Factual and Procedural History
In December 2019, the agency filed a complaint requesting temporary
custody of K.T. and his two older siblings,1 alleging that the children were abused,
neglected, and dependent. The children were residing with K.G. (“Mother”), the
biological mother of all three children, and Father, the biological father of K.T. K.T.,
who was less than a year old at the time the complaint was filed, was observed with
“injuries to his forehead.” K.T.’s siblings were observed with injuries consistent with
being hit with a cord. Regarding Mother, the complaint alleged that Mother “has an
anger management problem” and “hits the children with cords and throws objects
at the children.” There were also hygiene concerns; the children “lacked clean
clothing and smelled of urine.” Regarding Father, the complaint alleged that he was
“overwhelmed with the care of the children” and “lacks appropriate judgment with
which to provide for the children,” noting that he “minimizes the injuries to the
children and the lack of hygiene in the home.”
The court granted the motion for predispositional emergency
temporary custody, ordered Mother to have no contact with the children due to the
physical abuse allegations, and ordered the agency to file a case plan. After a
1K.T.’s two older siblings, K.F. (d.o.b. 11/13/2014) and T.F. (d.o.b. 11/02/2016), were
permanently committed to agency custody. Mother has separately appealed K.F. and
T.F.’s disposition in In re K.F., et al., 8th Dist. Cuyahoga No. 112086.
temporary placement, the children were placed with Mother’s godparents (“the
foster parents”), where they remained for the pendency of the proceedings.
The agency filed a case plan in January 2020, requesting that Father
complete services for parenting and individual counseling with the ultimate goal of
reunification with the children. Father was allowed weekly supervised visitation
with the children.
In October 2020, the agency filed an amended complaint for temporary
custody, alleging that since the initial complaint, Mother had been criminally
charged with endangering children and domestic violence in relation to the injuries
observed on K.T. and his siblings.
In December 2020, the court found that the children, including K.T.,
were neglected, abused, and dependent. The court proceeded immediately to
disposition, placing the children in the temporary custody of CCDCFS and approved
the case plan with the ultimate goal of reunification with the children. The court
also lifted Mother’s no-contact order.
In January 2021, the agency moved to extend temporary custody to
June 9, 2021, noting that Mother and Father required more time to complete the
case plan. Particularly, the agency specified that Mother needed more time to
rebuild her relationship with the children since the no-contact order had been lifted.
The court granted the motion.
In May 2021, the agency moved to extend temporary custody for a
second time, this time to December 9, 2021. The agency noted that though
substantial progress had been made on the case plan, the risk to the children had
not been sufficiently reduced. Particularly, K.T.’s siblings feared Mother and were
still exhibiting trauma associated with Mother’s past abuse of them. The court
granted this second motion to extend temporary custody.
In November 2021, the agency moved the court to modify temporary
custody and place all three children in the permanent custody of the agency.
Attached to this motion was an affidavit from CCDCFS Social Worker April Palidar
(“Palidar”), who averred that Mother’s criminal case stemming from the abuse of
the children was closed because Mother failed a drug test and was discharged from
probation; that K.T.’s siblings were still fearful of Mother; that Mother had been
inconsistent in attending mental health services; that Father lacked appropriate
housing to provide for K.T.; and that Father and Mother are in “an unstable and
volatile relationship which impacts their ability to provide for the basic and
emotional needs of the children.”
In February 2022, Father moved the court for legal custody of K.T.,
citing consistent, reliable compliance with the case plan throughout the pendency of
the proceedings. Notably, the motion included an affidavit from Father who averred
that at the expiration of his lease with Mother on March 1, 2022, Father would be
separating from Mother and leaving the premises to reside with his own mother in
a two-bedroom apartment. Father also averred that he initially maintained his
relationship with and resided with Mother to assist her in the completion of her case
plan, but now realizes that this was not in the best interest of K.T. or his siblings.
Father also indicated that though he was not currently employed, he had submitted
several applications for employment and makes ends meet by performing various
handyman tasks.
The juvenile court held a hearing on Father’s motion for legal custody
and CCDCFS’s motion for permanent custody on July 1, 2022.
At the start of the hearing, Mother’s counsel conceded that Mother was
mindful that K.T.’s two siblings expressed their wishes to remain with the foster
parents permanently. Mother’s counsel noted, however, that K.T. was too young to
express his wishes and that Mother supported Father’s motion for legal custody, or,
in the alternative, desired legal custody herself.
Father’s counsel opened by noting that while K.T.’s two siblings
remain traumatized as a result of Mother’s inability to control her anger, K.T. had
not. K.T. was less than a year old when the complaint was filed and did not have the
same lingering responses to trauma and fear of Mother that his siblings have.
Father’s counsel further noted that the affidavit supporting Father’s motion for
permanent custody was no longer totally accurate; since that time, Father had
rekindled his relationship with Mother.
The children’s foster mother testified that all three children exhibited
emotional stability when visitations were only with Father, but that changed when
Mother’s no-contact order was lifted and began joining the visitations. Prior to
visitations where Mother would be present, K.T.’s siblings “acted out” and required
reassurance that Father was also going to be present. She testified that Father was
interactive and playful during visitations and that Father rarely missed visits,
though her contact with him became more sporadic in March 2022 when he began
working full time during the week. The foster mother detailed the trauma responses
that K.T.’s two siblings were regularly experiencing as a result of Mother’s abuse
such as bedwetting and other symptoms of anxiety but testified that K.T. was not
exhibiting these same behaviors, likely due to his young age when the abuse
occurred. When questioned by the children’s guardian ad litem (“GAL”), the foster
mother testified that if Father received permanent custody of K.T., she would not be
concerned that Father would abuse the children, but noted that Father exhibits
deficiencies regarding managing “day-to-day things” and “sometimes not paying
attention.” (Tr. 53.) She also noted that she did not agree that Father should receive
custody of K.T. if Father remained in a relationship with Mother. She further
answered that K.T. had spent his entire life with his siblings, was bonded with them,
and that K.T.’s siblings may feel frustrated or confused if Father received custody of
just K.T., noting that the siblings may feel that Father “chose” K.T. over them.
The children’s licensed professional counselor, Kelsey Cirkvencic
(“Cirkvencic”), also testified. Cirkvencic is the therapist for K.T.’s siblings and works
with them to address their posttraumatic stress disorder related to trauma from the
physical abuse inflicted by Mother. Cirkvencic did not engage in any services with
K.T. due to K.T.’s age. She testified that Father engaged with K.T.’s siblings during
their sessions and was very involved and concerned for the children’s well-being.
Palidar, the CCDCFS employee and social worker who was assigned to
the case, testified that she was assigned the case in December 2020 after the
previous case worker left the agency. Palidar discussed Mother’s criminal charges.
Mother pled guilty to three counts of child endangering and one count of domestic
violence for the injuries that led to the removal of the children. All three children
were listed on the indictment. After pleading guilty, Mother was sentenced to
probation. Nonetheless, Mother was unsuccessfully discharged from probation
after she failed a drug test. Palidar testified that “after she was discharged from
probation, she went back in front of the Judge and her case was closed, so she
therefore had no consequences for the physical abuse that the children suffered[.]”
(Tr. 80.)
Palidar testified that Father was overwhelmed with trying to provide
for the family and as a result, was not home often and “had no knowledge of the
abuse that the children were suffering.” (Tr. 82.) It was hard for Palidar to believe
that Father was unaware of the abuse the children were facing because the children
reported that the abuse was consistent; because there were multiple injuries on all
of the children; and because even if he never noticed the abuse or the visible injuries,
that in and of itself is concerning.
Mother and Father were eventually approved for unsupervised
visitation, but Palidar was hesitant to move the visits to Mother and Father’s home
due to the clutter and sanitation concerns. In the winter, the home had plumbing
and furnace issues, and despite repeated assurances from Mother and Father that
they would improve the condition of the home, Palidar never observed any
improvements. Mother and Father also told Palidar that they had plans to move to
a new home, but this never happened either.
When asked about Father, Palidar stated that she could not say that
Father was reliable because he had missed visits for the past few months. She stated
that she was concerned about Father’s relationship with Mother, noting that the
couple were frequently breaking up and getting back together. Several times during
Palidar’s involvement with the case, Father communicated that he was done with
Mother and moving out, but he would just as quickly renege and rekindle the
relationship. She testified that she informed Father throughout the pendency of the
case that as long as he was involved with Mother, he would be ineligible to get
custody of K.T. Father took this advisement seriously and eventually moved in with
his own mother and provided the address to Palidar, but she was never able to walk
through Father’s new residence. In fact, she testified that closer to the date of trial,
Father had been avoiding her and when she confronted him about his sudden
noncompliance, he informed her that he did not want her to come to his mother’s
apartment. At the time of trial, she understood that Father and Mother were back
together and though they were not living together, they were looking for a home to
move into together.
Palidar testified that during visitation, the children were all very
engaged with Father. The children looked forward to visits with Father and were
more engaged with Father than they were with Mother. She noted that K.T. does
not seem to exhibit any of the concerning trauma-response behaviors that the other
two siblings demonstrate before, during, and after visitation.
Regarding Father’s motion for legal custody, Palidar noted that she
had some concerns about separating the children and Father’s inability to
confidently make decisions based on his past relations with Mother. She is
especially concerned that Father is looking for housing with Mother, which would
put K.T. right back into Mother’s care if Father continues to work long hours that do
not allow him to be present in the home. Palidar noted that even though Mother
was fully compliant with the case plan, she did not believe that Mother had
benefitted from the services, mostly citing the fact that K.T.’s siblings, even after
months of unsupervised visitation, still exhibit concerning, fearful, and traumatic
responses to Mother’s presence; refuse to engage in counseling with Mother; and
indicated that they wish to remain with the foster parents permanently. Finally,
Palidar noted that Father had said inappropriate things to the children in a moment
of frustration, including telling the children that he was done with this case and
never going to see them again.
Palidar ultimately testified that she felt that it was in the best interest
of all three children to be placed with the foster parents permanently, who had
expressed an intent to adopt the children.
Father testified on his behalf. Father testified that he is 37 years old,
college educated, a member of a church, and is currently employed as production
supervisor at Universe Uniforms, a position that he has held since March 2022. He
works from 9 a.m. to 7:30 p.m., receives a salary in excess of $23,000, and receives
benefits. He discussed the affidavit attached to his motion for permanent custody
and admitted that despite the affidavit’s claim that he would leave Mother’s home
by March 1, 2022, he had not fully moved out of Mother’s home by that time. He
testified that he remained at Mother’s home because he lacked reliable
transportation and it was easier to get to his job from Mother’s home. He testified
that despite his affidavit averring otherwise, he now had every intention of working
things out with Mother and eventually marrying Mother. He also clarified that even
though they were currently living separately, he intended to move back in with
Mother and they are actively looking for housing. He clarified that they have had
trouble finding housing for various reasons related to finances and time.
Upon learning that Father intended to remain with Mother, Father
was asked how he would ensure that K.T. was safe if he received legal custody.
Father answered that his job provides daycare services and when the child is not in
daycare, Mother will be “supervised until I feel it’s best fit [sic] that she can like do
it on her own, but it will be me as a single dad is how I see myself.” (Tr. 155.)
The GAL testified that all three children should be placed in the
permanent custody of the agency. She reminded the court that while Father was
living at the home with Mother, all three children received “non accidental injuries
caused by Mother.” (Tr. 167.) She also reminded the court that Father was
“unstable” and indecisive throughout the case. She admitted, however, that K.T.,
who had been about nine months old when he was removed from Mother and
Father’s custody, had not suffered any trauma as a result of Mother’s abuse as
compared to K.T.’s siblings. This fact did not change the GAL’s recommendation.
In September 2022, the juvenile court issued its decision granting
Father’s motion for legal custody of K.T. and denying the agency’s motion for
permanent custody of K.T. Regarding K.T.’s siblings, the juvenile court terminated
Mother’s parental rights and granted permanent custody of the siblings to the
agency. The journal entry relating to Father’s legal custody motion pertinently
noted that
[Father] testified to and the worker of record corroborated that
[Father] had planned to move to a separate residence to effectuate
K.T.’s return. He agreed to not reconcile with Mother and to raise K.T.
as his primary caregiver. [Father], however, after moving allowed
Mother to move into his new home and indicated that he was going to
marry Mother. [Father] made that declaration with the knowledge that
K.F. and T.F. were still frightened to be with Mother and their refusal
to engage in family counseling if Mother was present. [Father] did not
believe Mother posed any future threat to the boys, K.T. included. He
testified that he would not have any qualms about leaving the children
alone with their Mother.
In fairness to the parents, K.T. was not subjected to the same
psychological or physical harm that his siblings experienced.
Moreover, most of K.T.’s negative reactions to visiting his parents can
be attributed to him mocking his brothers’ behaviors. K.T. is bonded
to his [F]ather and [M]other. K.T. has not expressed, partly due to his
age, trepidation or resistance to being placed back with his [F]ather.
THE CCDCFS was required to prove by clear and convincing evidence
that it was in K.T.’s best interest to be placed in the Permanent Custody
of the CCDCFS. This Court does not find that they met that burden.
Actually, the Court found that the [Father] was able to demonstrate by
a preponderance of the evidence that it was in K.T.’s best interests to
be placed in his legal custody.
Having received the appropriate reports, the Court finds that
reasonable efforts have been made to prevent the continued removal of
the child from the home. Specifically, the services offered to the
parents include: [p]arenting and [m]ental [h]ealth.
The Court further finds that the [F]ather has made significant progress
towards alleviating the cause for the removal of the child from the
home.
The Court further finds that reasonable efforts have been made to
finalize a permanency plan. Specifically, the permanency plan for the
child is legal custody to a parent without any restrictions.
The Court further finds that the [F]ather has made significant progress
towards alleviating the cause for the removal of the child from the
home.
The Court further finds that the child’s return to the home is in his best
interest, and placement of the child outside the home is no longer
appropriate.
The journal entry denying the agency’s motion for permanent
custody found that
[t]he Court finds by clear and convincing evidence that pursuant to
O.R.C. 2151.414(B)(1):
(d) the child has been in temporary custody of a public children
services agency or private child placing agency for twelve or more
months of a consecutive twenty-two month period.
The Court further finds that reasonable efforts were made to prevent
the removal of the child from the home, or to return the child to the
home and finalize a permanency plan, to wit: reunification.
[The Court considered, per R.C. 2151.414(D)(1):] (a) The interaction
and interrelationship of the child with the child’s parents, siblings,
relatives, and foster caregivers and out-of-home providers, and any
other person who may significantly affect the child[.]
(c) The custodial history of the child, including whether the child has
been in temporary custody of a public children services agency or
private child placing agency under one or more separate orders of
disposition for twelve or more months of a consecutive twenty-two
month period.
(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.
[2151.414(D)(2)](d) Prior to the dispositional hearing, no relative or
other interested person has filed, or has been identified in, a motion
for legal [c]ustody.
[Per R.C. 2151.414(E)(7), the parent has been convicted or pleaded
guilty to:] (c) An offense under division (B)(2) of section 2919.22 of
the Ohio Revised Code or under an existing or former law of the state,
any other state, or the United States that is substantially equivalent to
the offense described in that section and the child, a sibling of the
child, or another child who lived in the parent’s household at the time
of the offense is the victim of the offense[.]
After the juvenile court journalized its decision, the agency filed an
“Emergency Motion for Stay of Execution of Order of September 29 Pending
Appeal,” asking the juvenile court to refrain from placing K.T. in Father’s custody
while the instant appeal was pending. The juvenile court denied this motion, so the
agency filed the same motion in this court. This court granted the motion, and the
instant appeal was filed, assigning one error for our review.
The trial court abused its discretion by granting appellee [Father’s]
motion for legal custody of the child to himself and denying CCDCFS’s
motion for permanent custody of the child to the agency.
II. Law and Analysis
In its sole assignment of error, the agency asserts that the juvenile
court erred in granting legal custody of K.T. to Father and erred in denying the
agency’s motion for permanent custody of K.T.
We begin by acknowledging that parents have a fundamental right to
raise and care for their children. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28; In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809,
¶ 40. However, “‘[t]he natural rights of a parent are 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).
When reviewing a juvenile court’s judgment in child custody cases, the
appropriate standard of review is whether the juvenile court abused its discretion.
Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). The term abuse
of discretion implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463.
“While a trial court’s discretion in a custody modification proceeding is broad, it is
not absolute, and is subject to reversal upon a showing of abuse of discretion.” In re
Mayle, 8th Dist. Cuyahoga Nos. 76739 and 77165, 2000 Ohio App. LEXIS 3379, 18
(July 27, 2000), citing Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
An abuse of discretion occurs when a trial court fails to base its decision on a
consideration of the best interests of the child. In re N.B., 8th Dist. Cuyahoga No.
101390, 2015-Ohio-314, ¶ 60, citing In re T.W., 8th Dist. Cuyahoga No. 85845,
2005-Ohio-5446, ¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 574
N.E.2d 1055 (1991).
A. Legal Custody to Father
Legal custody is governed by R.C. 2151.353(A), which provides that
after a child has been adjudicated abused, neglected, or dependent, a juvenile court
may
[a]ward legal custody of the child to either parent or to any other person
who, prior to the dispositional hearing, files a motion requesting legal
custody of the child[.]
When a juvenile court considers an award of legal custody following
an adjudication of abuse, neglect, or dependency, it must examine “what would be
in the best interest of the child based on a preponderance of the evidence.” In re
M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 11, 14. A preponderance
of the evidence is evidence that is “‘more probable, more persuasive, or of greater
value.’” In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7, quoting
In re D.P., 10th Dist. Franklin No. 05AP-117, 2005-Ohio-5097, ¶ 52.
R.C. 2151.353(A) does not specify any specific factors or
considerations that a juvenile court must consider in determining the best interest
of the child. This court has found that juvenile courts may consider the factors
enumerated in R.C. 2151.414(D) that govern best interest of the child considerations
in permanent custody motion. In re B.D., 8th Dist. Cuyahoga No. 105650, 2017-
Ohio-8663, ¶ 26. Since this appeal also asks us to examine the juvenile court’s denial
of permanent custody to the agency, we address the best interest of the child in
reviewing the juvenile court’s denial of the agency’s motion for permanent custody.
B. The Agency’s Motion for Permanent Custody
In adjudicating a motion to modify temporary custody to permanent
custody, the juvenile court is guided by R.C. 2151.414. R.C. 2151.414 sets forth a two-
prong analysis for juvenile courts to apply in determining whether permanent
custody should be granted to an agency. First, the court must find, by clear and
convincing evidence, any one of the four factors set forth in R.C. 2151.414(B)(1).
Second, the court must determine, by clear and convincing evidence, that it is in the
best interest of the child to terminate parental rights. R.C. 2151.414(B)(2).
Clear and convincing evidence is that which will produce in the trier
of fact “‘a firm belief or conviction as to the facts sought to be established.’” In re
Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Clear and convincing evidence is a higher standard than a preponderance of the
evidence. In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994).
Because “clear and convincing” is a higher standard than a preponderance, it follows
that if the evidence in the record meets the “clear and convincing” standard, it also
meets the preponderance of the evidence standard required for Father’s legal
custody motion. See, e.g., In re J.G., 9th Dist. Wayne No. 14CA0004, 2014-Ohio-
2570, ¶ 36 (“In deciding that permanent custody is clearly and convincingly in the
best interest of [the child], the juvenile court necessarily determined that it is not
in his best interest to be placed in the legal custody of Father.”).
Regarding the first prong, neither party disputes that the juvenile
court properly found that R.C. 2151.414(B)(1)(d) was established by the record.
The juvenile court properly found that K.T. was in agency custody for “twelve or
more months of a consecutive twenty-two month period.” The children were in
agency custody for over two years at the time of trial.
At issue in this appeal is the second prong, which requires the
juvenile court to find that permanent custody is in the best interest of the child.
The agency asserts that the juvenile court did not “correctly [apply] these best
interest factors” when it determined that the agency was not entitled to permanent
custody of K.T.
A nonexhaustive list of factors for the juvenile court to consider in
determining the best interest of the child are set forth in R.C. 2151.414(D)(1):
(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, 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;
(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.
In the instant matter, the juvenile court indicated that it considered
subsections (a), (c), and (d). The court did not state any specific factual findings
relative to each subsection, nor did its analysis specifically examine the best
interest of the child beyond stating that it considered it. The court’s journal entry
also suggests that the trial court considered the fact that Father filed a motion for
legal custody and that Mother had been charged with child endangering for her
abuse towards K.T. and his siblings.
After a careful review of the record before us, we find that the trial
court’s judgment granting legal custody to Father and denying permanent custody
to the agency was not in the best interest of K.T. and therefore, was an abuse of
discretion.
We discuss each R.C. 2151.414(D)(1) factor in turn.
Subsection (a) asks us to consider the interaction and
interrelationship of the child with his parents, siblings, and foster caregivers. We
first note that Father and K.T. have a good, well-bonded relationship. Father was
compliant with visitation, always interacted with all three children, and the children
were consistently satisfied with Father. However, in determining permanent
custody, while family unity and “blood relationship” are important factors, neither
is controlling, nor is the mere existence of a good relationship. In re T.W., 8th Dist.
Cuyahoga Nos. 86084, 86109, and 86110, 2005-Ohio-6633, ¶ 15. The foster mother
testified that Father was very consistent with visitation until about March 2022,
when he started working at his current job and became unable to visit with the
children during the week.
There was also ample testimony presented indicating that K.T. is
extremely well-bonded with his siblings. Numerous individuals, including the foster
mother and Palidar, testified that they would be concerned about separating the
siblings. Notably, Father himself acknowledged that splitting up the three siblings
may not be in their best interest, noting that “I’m still also not willing to break up
my three sons. Whether they’re with me, that’s fine. Whether they’re with [the
foster family], that’s fine, but my whole thing is like they’re set.” (Tr. 153.) K.T.’s
siblings, with whom he is well-bonded, expressed that they do not desire to maintain
any relationship with Mother and Mother was never able to repair her trust with
them despite efforts to maintain visitation. There was testimony that due to his
siblings’ distrust and fear of Mother, K.T. also became fearful of visitations. His
foster mother noted that K.T. had been “mimicking his brother’s behavior through
like second-hand trauma behaviors, * * * [s]ometimes he starts to cry and kick and
scream and usually if we say [Father’s] going, he’s fine.” (Tr. 23.) This is
demonstrative of the strong bond between the siblings and K.T., whom K.T. has been
with for the entirety of his life.
We cannot ignore the role of Mother in this matter. During trial,
Father unequivocally maintained that even if given custody of K.T., he intended to
remain in a relationship and live with Mother, whose parental rights were
terminated as to K.T.’s siblings. It is essential to consider the fact that Mother, in
cohabitating with Father, will become a primary caregiver to K.T. She will often be
alone with K.T. due to Father’s current employment where he works long hours.
Further, her involvement in K.T.’s life may distance K.T. from his siblings, who have
refused to rebuild their relationship with Mother. Even if K.T. is sent to a daycare
as Father testified, it is unrealistic to assume that Mother will not have a large role
in his life and upbringing. This is especially concerning because Father was advised
by Palidar that the agency was taking the position that “as long as [Father] was with
[Mother] due to the conditions, he would be ineligible to get [K.T.]” (Tr. 100.) The
affidavit that Father attached to his motion for legal custody expressed his desire to
cut ties with Mother, but his actions at trial reflected a different path, which is
indicative of Father’s failure to demonstrate a commitment to K.T.’s well-being.
This court has previously found that the individuals who a parent
chooses to surround themselves with and reside with are important in determining
the best interest of the child. See, e.g., In re S.P., 8th Dist. Cuyahoga No. 111081,
2022-Ohio-2277, ¶ 38 (finding that a parent had not successfully remedied the
conditions causing removal of the child when the parent chose to reside with a sex
offender who had raped the parent’s children); In re T.J., 8th Dist. Cuyahoga No.
111154, 2022-Ohio-1946, ¶ 50 (finding that a parent did not provide a safe and secure
environment for the children because mother maintains contact with sex offenders
and perpetrators of domestic violence); In re E.B., 8th Dist. Cuyahoga No. 109477,
2020-Ohio-4307, ¶ 33 (finding that a parent’s decision to date a registered sex
offender raised concerns about the parent’s decision-making processes); In re Ca.T.,
8th Dist. Cuyahoga No. 108969, 2020-Ohio-579, ¶ 30 (finding that a parent failed
to remedy the conditions causing removal where, even after the parent completed
domestic violence classes, the parent remained with the abusive partner who caused
removal of the child in the first place); In re A.G., 8th Dist. Cuyahoga No. 105254,
2017-Ohio-6892, ¶ 45 (finding that a parent failed to remedy the conditions causing
removal of the children when a parent knowingly engaged in a relationship with a
convicted sex offender when the initial removal dealt with a previous partner’s
domestic violence in the home); In re M.B., 8th Dist. Cuyahoga Nos. 101094,
101095, and 101096, 2014-Ohio-4837, ¶ 32 (finding that a parent’s completion of
domestic violence services was insufficient where the parent remained with the
abuser causing removal). We find that the instant matter presents a similar
circumstance; Father chose to maintain a relationship and reside with Mother
despite being told it would be adverse to the best interest of K.T.
Because Mother was also given a case plan and substantially
completed it, we acknowledge that there could certainly be some merit to Father’s
testimony that Mother could be trusted with K.T. However, Father is the only
witness that felt this way about Mother. Palidar did not believe that Mother had
benefitted from the services that she engaged in and was also concerned that Mother
never received any consequences stemming from the criminal charges related to this
matter. The foster mother also stated that she would be concerned with Father
receiving custody of K.T. if Mother was still in his life. The GAL also did not believe
that Mother had benefitted from the services because she was unable to rebuild her
relationship with K.T.’s siblings, despite months of unsupervised visitation. Indeed,
the juvenile court did not believe that Mother had benefitted from her case plan in
terminating her parental rights as to K.T.’s siblings.
We finally note that K.T. has an excellent relationship with his foster
parents, which will be described in more detail pursuant to subsection (c).
Subsection (b) asks us to consider the wishes of the child, as expressed
through the GAL. “The role of a guardian ad litem in a permanent custody
proceeding is to protect the child’s interest, to ensure the child’s interests are
represented throughout the proceedings and to assist the trial court in its
determination of what is in the child’s best interest.” In re K.Z., 8th Dist. Cuyahoga
No. 107269, 2019-Ohio-707, ¶ 67. In the instant matter, the GAL testified that
permanent custody of all three siblings to the agency is in the children’s best interest
due to the bond between the siblings as well as the foster family. The GAL
particularly noted that even though Mother complied with the case plan, she was
unable to rebuild her bond with K.T.’s siblings. She also noted that Father’s behavior
was a concern because “of his instability with the family emotionally and the fact
that there was domestic violence[2] in the past.” (Tr. 168.)
Subsection (c) asks us to consider the custodial history of the child.
Neither party disputes that all three children were in agency custody for over two
years and during that time, were almost exclusively in the care of the foster parents.
Since K.T. was approximately nine months old he had been in agency custody. At
no point did he return to the custody of either Mother or Father during the pendency
of these proceedings. The record supports that K.T. and his siblings feel comfortable
and supported by their foster parents. The record also contains evidence that K.T.’s
removal from Mother and Father may have benefited his development. K.T.’s foster
mother testified that when she initially received K.T., he “would kind of sit around a
lot of times and stare into space.” (Tr. 19.) The foster mother testified that he was
referred for therapies to improve his interactions and fine motor skills and that she
worked with him every day on these therapies. K.T. scored so well on his follow-up
assessment that he did not need further services and has continued to thrive in his
foster placement.
Subsection (d) asks us to consider the child’s need for a legally secure
placement. We first note the inconsistency of Father’s intentions throughout the
pendency of the case. In addition to the agency’s motion for permanent custody, the
2 When questioned by Father’s counsel, the GAL admitted that no evidence was presented
during the trial pointing to domestic violence concerns between Mother and Father, but
she alluded to the fact that she believed it happened, even though there was not any police
or court involvement.
trial court also considered Father’s motion for legal custody of K.T. Father’s motion
for legal custody was premised on an affidavit where Father averred that he was
separating from Mother, that he would no longer reside with Mother, and that he
realized that it was in K.T.’s best interest to be separated from his Mother. At trial,
Father reneged on all of these statements that formed the basis for his request of
legal custody. Father admitted at the time of trial that he had rekindled his
relationship with Mother, that they intended to get married, and that while they
were living apart at the time of trial, they were looking for housing together. He no
longer felt that Mother was a threat to the children due to her progress, but the
evidence adduced at the hearing demonstrates otherwise. Father’s sworn testimony
differed in the affidavit as well as on the stand during trial.
We further note that in addition to the conflicting sworn testimony
presented by Father, a multitude of evidence received at trial supported the agency’s
concerns related to Father’s indecisiveness and inability to remain faithful to his
decisions. Palidar noted that Father and Mother have an incredibly tenuous
relationship, stating:
I’m not sure if it’s a pattern, but it seemed to be different almost every
month I would see them. They were together. They were not together.
They would break up. They would get back together.
[Father] would tell me like at times I’m done with this, I’m moving out,
I’m leaving her. And then like the next month he would be back with
her and say, oh well, we worked out our problems, we’re better now.
And then time would go by, and then they would be back to breaking
up. So it was just a back-and-forth for both of them. Breaking up,
getting back together, breaking up, getting back together.
(Tr. 99.)
Palidar testified that Father told her “multiple times that he was
gonna move out and he was gonna get his own place, and he was gonna get [K.T.]
and raise him on his own.” (Tr. 100.) Despite these promises, Father acknowledged
at the time of trial that he wished to remain with Mother and that he believed that
Mother was capable of caring for K.T. Additionally, when questioned regarding his
tenuous relationship with Mother, Father responded that “[e]very relationship has
conflict.” (Tr. 153.)
Father also demonstrated further inability to provide a secure home
in March 2022 after starting his new job. The evidence demonstrates that as soon
as he began his job, he delayed moving out of Mother’s home and he lost contact
with the agency. Palidar testified that in the months leading up to trial, Father
completely avoided her. Palidar recalled that Father stated, “I don’t want you
coming to my mother’s house, so that’s why I’m not returning your calls or
responding to your text messages or your letters because I’m avoiding you.”
(Tr. 101.) Father corroborated this testimony when he took the stand, stating
“[w]hen I spoke to [Palidar], I told her like I apologized, I mean, I did admit I was
avoiding her call[s].” (Tr. 138.) He also struggled to visit the kids during this time,
though we acknowledge that Father did manage to make several weekend visits that
accommodated his work schedule.
Finally, the trial court granted legal custody to Father despite the fact
that the agency had not seen the housing where Father currently resides and despite
the fact that the agency would be unable to view the home that Father and Mother
eventually secured. This is concerning because when Mother and Father were living
together, the agency had multiple concerns about the safety of the home, noting
excessive clutter and Mother and Father’s failure keep the home in good repair. The
agency never recorded any improvement in these areas.
Subsection (e) asks us to consider whether any of the R.C.
2151.414(E)(7) to (11) factors apply. The trial court found that R.C. 2151.414(E)(7)(c)
applied because Mother was convicted of an offense under R.C. 2919.22(B)(2) (child
endangering) pertaining to the children while residing in the same household as
Father. This finding is well-established by the record before us and because Father
expressed that he continues to reside with Mother despite her criminal convictions
relating to the children, this factor weighs against K.T.’s best interest.
We recognize that both Father and Mother made substantial strides in
the completion of their case plans. We nonetheless note that Palidar and the GAL
were unpersuaded that either of them benefitted from the case plans. Further, this
court has found that “successful completion of case plan requirements does not
preclude a grant of permanent custody to a social services agency.” In re C.C., 187
Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.), citing In re J.L.,
8th Dist. Cuyahoga No. 84368, 2004-Ohio-6024, ¶ 20. We further note that while
K.T. may have a good relationship with Father, this court has recognized that the
best interest of the child requires permanency and a safe, secure environment,
regardless of the strength of the child’s relationship with the biological parent. In re
K.M., 8th Dist. Cuyahoga No. 95374, 2011-Ohio-349, ¶ 23.
In its journal entries granting legal custody to Father and denying the
agency’s motion for permanent custody, the juvenile court acknowledged that
the CCDCFS also found that [Father’s] belief that the children are
emotionally healed notwithstanding their claims that they still fear
their mother as a huge impediment to reunification. K.F. and T.F may
appear, to [Father], to be emotionally healed because they acquiesce to
the visits with Mother but their comments and behaviors about not
wanting to be left alone with Mother is a clear demonstration that they
have not healed from their past trauma. [Father’s] inability to see that
has the potential of placing K.F. and T.F. in jeopardy of future
emotional and possible physical harm. The last concern is impactful
because the CCDCFS expressed to [Father] the need to separate
himself from Mother to increase the likelihood that they would
recommend, at a minimum, K.T. be reunited with his father.
(Emphasis added.)
The trial court acknowledged that Father minimized the trauma to
K.T.’s siblings and acknowledged that Father was aware of the agency’s expectations
for him to achieve permanent custody. Nonetheless, the trial court still found that
the agency did not meet its burden in establishing, by clear and convincing evidence,
that permanent custody to the agency was in the best interest of the child and instead
found that Father established, by a preponderance of the evidence, that legal custody
was in K.T.’s best interest. We cannot agree. The record demonstrates that in
resolving evidentiary conflicts and making credibility determinations, the trial court
lost its way and focused its custody determination on the interests of Father rather
than the best interest of K.T. The state’s sole assignment of error is sustained.
III. Conclusion
After a thorough review of the record and law, we find that the trial
court erred in granting legal custody of K.T. to Father and erred in denying
CCDCFS’s motion for permanent custody as to K.T. We reverse the juvenile court’s
decision to grant permanent custody to Father and remand with instructions to
terminate Father’s parental rights and grant permanent custody of K.T. to the
agency.
It is ordered that appellant recover from appellee 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
MARY EILEEN KILBANE, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY