In re D.F. , 2023 Ohio 1373 ( 2023 )

[Cite as In re D.F., 2023-Ohio-1373.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE D.F. :
: No. 112066
A Minor Child :
:
[Appeal by Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 27, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-21-910094
Appearances:
Sylvester Summers, Jr., Co., LPA, and Sylvester Summers,
Jr., for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MARY J. BOYLE, J.:
Appellant-Mother (“Mother”) asks us to determine whether the trial
court abused its discretion in awarding permanent custody of D.F. to the Cuyahoga
County Department of Children and Family Services (“CCDCFS”). Mother
maintains that CCDCFS failed to show by clear and convincing evidence that
adequate grounds existed for a grant of permanent custody and argues the juvenile
court’s decision was contrary to the manifest weight of the evidence. We disagree
and affirm the juvenile court’s award of permanent custody to CCDCFS.
I. Facts and Procedural History
This matter began in November 2021 after a 696-KIDS hotline call
alerted CCDCFS that Mother and D.F. tested positive for fentanyl and methadone at
the time of D.F.’s birth on November 2, 2021. The intake worker requested
emergency custody due to Mother’s history with CCDCFS, Mother’s issues with
substance abuse and mental health, and the alleged father’s inability to provide care
due to his physical health.
Accordingly, CCDCFS filed a complaint for abuse, dependency, and
temporary custody and a motion for predispositional temporary custody on
November 9, 2021. At the time of the filings, Mother held legal custody of D.F. The
complaint and motion alleged Mother and D.F. tested positive for fentanyl and
methadone when D.F. was born; Mother had a chronic substance abuse problem
and could not provide a safe and appropriate home for D.F.; Mother had mental
health issues that prevented her from providing adequate care for D.F.; Mother
lacked stable and independent housing; Mother had three older children who were
removed from her care; the alleged father had not yet established paternity and was
unable to care for D.F.; and any other potential father failed to establish paternity,
provide support, visit, or communicate with D.F. since birth. A hearing was held
that same day. Mother, by and through counsel, denied the allegations of the
complaint and stipulated to a finding of probable cause to the motion for pre-
dispositional temporary custody. Testimony was heard and the juvenile court
granted CCDCFS’s motion finding that there was probable cause for removal of the
child pursuant to R.C. 2151.31, removal was in the best interest of the child, and
reasonable efforts were made to prevent such removal. D.F. was committed to the
emergency temporary care and custody of CCDCFS since there was a not a suitable
relative who was willing to be a temporary custodian.
A pretrial was scheduled for December 8, 2021, and rescheduled to
December 22, 2021, since service had not yet been perfected. An arraignment
hearing before the family drug court jurist was also set for December 22. Neither
parent appeared for the pretrial and arraignment. An oral motion for the matter to
be heard on the regular docket was entered by CCDCFS and granted by the
magistrate. A subsequent pretrial was scheduled for January 27, 2022.
Prior to the pretrial, a guardian ad litem (“GAL”) was appointed for
D.F. and a notice of representation and request for discovery was filed on behalf of
Mother. The juvenile court was advised at the pretrial that Mother was presently in
Portage County Jail. Trial was set for February 25, 2022. A report was submitted
by the GAL and a witness and exhibit list was filed by CCDCFS.
On February 25, CCDCFS entered an oral motion to amend the
complaint. The juvenile court granted the motion with the agreement of the parties.
Mother admitted to the allegations of the complaint as amended. The court heard
testimony and accepted evidence, found that the allegations of the amended
complaint were proven by clear and convincing evidence, and held that D.F. was
adjudicated to be abused and dependent. CCDCFS orally requested to move for
disposition, the parties agreed to proceed immediately, and the juvenile court did
so. D.F. was committed to the temporary custody of CCDCFS and the permanency
plan of reunification was approved.
In May 2022, CCDCFS moved to modify the temporary custody order,
grant permanent custody to CCDCFS, terminate parental rights, and approve the
modified case plan. The motion included an affidavit from the CCDCFS social
worker of record, Ashly Little (“Social Worker”), attesting that Mother had not
addressed her substance abuse or mental health issues as required by the case plan.
Social Worker further attested that Mother had participated in substance abuse and
mental health services in the past but had not been able to maintain sobriety or
address her mental health needs consistently. Social Worker also stated that Mother
had not visited D.F. since November 2021 and was incarcerated on a three-year
sentence without eligibility for release until December 2025. Lastly, Social Worker
attested that the alleged father had not established paternity as required by the case
plan and failed to support, visit, or communicate with D.F. since birth. A
preliminary hearing was set for June 30, 2022.
On June 30, a conference was held, and the matter was continued to
July 18, 2022. In the interim, a new GAL was assigned. On July 18, an attorney
conference was held and the matter was set for trial September 13, 2022. CCDCFS
filed witness and exhibit lists and a report was filed by the newly appointed GAL.
At the trial on September 13, the juvenile court heard testimony from
Social Worker. Social Worker testified that she had prior involvement with the
family after having been assigned to D.F.’s older sibling’s case in February 2021.
That case also involved concerns regarding Mother’s substance abuse, mental
health, and ability to provide stable housing and basic needs. Ultimately, that case
concluded with CCDCFS receiving permanent custody of D.F.’s older sibling in July
2021 due to Mother’s “evasiveness, uncooperativeness, and lack of plan
completion.” (Sept. 13, 2022, tr. 10.) Mother had previously lost legal custody of
two older children in 2016 for substance abuse and mental health reasons as well.
Social Worker testified that she submitted alert letters in May 2021
after learning that Mother was pregnant with D.F. The November 2021 696-KIDS
hotline call alerted CCDCFS to Mother and D.F.’s positive test results for fentanyl
and methadone at the time of D.F.’s birth, reopened Mother’s case, and spurred an
incident investigation. Emergency custody was granted to CCDCFS as a result and
D.F. was placed in the same foster home as her sibling upon discharge from the
hospital. In February of 2022, temporary custody was granted to CCDCFS. At that
time, a case plan for substance abuse and mental health was developed for Mother
to achieve the permanency goal of reunification.
Social Worker further testified that except for a brief two-week period
following D.F.’s birth, Mother was incarcerated in Cuyahoga and Portage County
jails. Social Worker explained that Mother was charged with DUI and incarcerated
in Cuyahoga County soon after giving birth to D.F. Mother was released with a GPS
monitor in December 2021, which she removed creating another capias in Cuyahoga
County. Mother was arrested in Portage County about two weeks after her
December release for unauthorized use of a vehicle, receiving stolen property, and
failure to comply. She is currently serving a three-year prison sentence in Marysville
as a result of the Portage County convictions. Mother is not expected to be released
until December 2025.
Social Worker stated that while Mother completed a 12-session sober
program while incarcerated, it did not fulfill the CCDCFS case plan objectives
“because when mom was available and not incarcerated, she did not complete a
program.” (Sept. 13, 2022, tr 17.) Nor did Mother complete an updated mental
health assessment as required by the case plan despite Social Worker’s several
attempts to contact and engage Mother. Social Worker testified that Mother had
one virtual video visit with D.F. while incarcerated in Cuyahoga County. Social
Worker advised that D.F. was placed in a foster home with her older sibling and
explained:
I’ve visited with the foster family and these two children, well,
obviously, since December 2021, and then the previous child since
February 2021. I only observed positive bonding, attachment,
developmental needs being met.
Both children due to the substance abuse exposure had needs, which
are being addressed with physical therapy, occupational therapy that
the foster home facilitates and is linked to those services.
Children are up-to-date medically. The child is well taken care of. The
older sibling identifies the child as her sister. There is definitely a bond.
We were just talking about how the baby does not like to be put down,
and, therefore, is attached to the hip of the foster mother.
(Sept. 13, 2022, tr. 21.) Social Worker testified that she believed permanent custody
was in the best interest of D.F. for the following reasons:
I understand that mother is currently incarcerated until 2025,
however, if mom was even available now, I don’t — based on her
history, I do not see her engage with and being compliant with services,
including just visitation.
While she was in Cuyahoga County the second time was the only time
she ever asked for visitation. She didn’t ask for visitation while * * *
first [incarcerated] — November to December, and even when she was
in Portage County. So I don’t foresee or even picture mom being
committed to sobriety and committed to addressing her concerns and
rectifying issues that we had at removal of both children, as she
repeated the same behavior twice within a year’s time.
(Sept. 13, 2022, tr. 22.) Social Worker further explained why CCDCFS “moved
quickly” for permanent custody:
We moved fast because of — I wouldn’t say we moved fast. We — We’re
trying to ensure the child’s permanency due to mother’s behavior and
her history and her current incarceration status. * * * So with her being
incarcerated, we had no other — we did not have enough support to
request an extension of temporary custody due to her history and not
complying with services.
(Sept. 13, 2022, tr. 29-30.)
Social Worker also testified that paternity had not been established
for the alleged father or any other father. Social Worker also noted the alleged father
was unable to physically provide care for D.F. due to his physical health. Social
worker testified that the alleged father had not visited or communicated with D.F.
since birth and that despite monthly home visits and mailings, she had “zero”
contact with the alleged father.
Mother’s counsel argued that CCDCFS “pretty much dismissed the
mother’s role in this child’s life from the beginning, since birth.” (Sept. 13, 2022, tr.
34.) In support of her request for an extension of temporary custody, Mother’s
counsel asserted there was substantial compliance with the case plan due to
completion of a 12-session sober living program, it was not clear that Mother did not
want visitation, and Mother would be seeking early judicial release.
The GAL advised the juvenile court that D.F. was very bonded with
both her foster family and older sibling. It was the GAL’s recommendation that
permanent custody be granted.
Following trial, the juvenile court stated that “[i]n this case, the
outcome is extremely clear cut” and found:
− Abandonment of D.F. by both parents.
− Failure to remedy the causes of D.F.’s removal.
− Lack of commitment shown to D.F. by both parents.
− No clear and convincing evidence that the parents could provide legally secure
permanent placement and adequate care for the health, welfare, and safety of
D.F.
− The termination of Mother’s parental rights for D.F.’s older sibling based on
a prior journal entry granting permanent custody to CCDCFS, submitted as
exhibit No. 1.
− Unavailability of Mother to care for D.F. due to incarceration.
− Repeated incarceration that prevented Mother from providing care to D.F.
− Intensive efforts made by CCDCFS to locate relatives.
− Reasonable efforts made by CCDCFS to finalize the permanency plan through
referrals for establishing paternity, substance abuse, and housing.
− A clear recommendation by the GAL that permanent custody was in the best
interest of D.F.
(Sept. 13, 2020, tr. 36-38.) The court further noted, “The child is too young to
verbally express wishes, but she is well-bonded to her sister, her foster family. This
is the only family that she has known.” (Sept. 13, 2020, tr. 36.) The following factual
findings were made in the court’s journal entry granting CCDCFS’s motion for
permanent custody:
D.F. was removed from the custody of the mother November 10, 2021
after the child’s birth and removed from the hospital. Both mother and
child tested positive for fentanyl and methadone at the birth of the
child. The mother only visited with the child while the child was in the
hospital. The mother was incarcerated soon after the birth of the child.
The mother had only one video visit with the child in December 2021
while mother was incarcerated at the Cuyahoga County Jail. The
mother lost custody of two other children in 2016 due to substance
abuse and mental health and were placed in the legal custody of the
maternal grandmother. The mother had her parental rights terminated
of another child in July 28, 2021 due to mother’s substance abuse; see
CCDCFS’ Exhibit 1, L.F. AD20908345. The mother has been in and out
of jail since the birth of the child and the only time she has not been
incarcerated during the child’s life was two weeks in December of 2021.
The mother is currently incarcerated and has a release date of
December 2025. The mother has not engaged in services and has not
completed case plan objectives. The alleged father was unable to
provide care for the child due to his fragile health. The alleged father
only visited with the child after birth while the child was in the hospital.
The alleged father has had no contact with the child and has failed to
support or visit the child after released from the hospital. The alleged
father has had zero contact with the social worker and [CCDCFS]. The
alleged father has not established paternity. The alleged father’s
whereabouts are unknown. The child has been in foster care since
released from the hospital and has been placed in the same foster home
as her sibling. The child is well bonded with the older sibling and is
attached to the hip of the foster mother. The child’s needs are being
met and medical needs due to withdrawals. The foster parent is willing
to adopt the child.
In re D.F., Cuyahoga J.C. No. AD21910094 (Sept. 27, 2022). Based on these facts,
the juvenile court made statutory findings pursuant to R.C. 2151.414(B), (D), and
(E), held permanent custody was in the best interest of the child, and approved the
plan of permanent custody and adoption.
Mother now appeals, raising the following assignment of error for
review:
Assignment of Error: The trial court erred in awarding permanent
custody to [CCDCFS] as CCDCFS failed to show by clear and convincing
evidence that adequate grounds existed for a grant of permanent
custody and therefore such decision was contrary to the manifest
weight of the evidence.
II. Law and Analysis
As an initial matter, we note that Mother’s brief did not include a
statement of facts and did not cite any portion of the record as required by
App.R. 16(A)(6) and (7). Nevertheless, we will review her argument because the
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.
In her single assignment of error, Mother argues that the juvenile
court “improperly found the child could not or should not be returned to the mother
within a reasonable time.” Mother claims the juvenile court’s decision was contrary
to the manifest weight of the evidence and its best interest determination was not
supported by clear and convincing evidence. Mother argues, “The trial court should
have determined that there was no abuse of discretion in not granting [her] an
additional 6-month extension of temporary custody.” Mother claims she “should
have been given an extension of temporary custody so that she can file for judicial
release and continue with her sobriety.” To support her argument, Mother notes
that she completed 12 sessions of a sober living program and “has been taking steps
to live a sober lifestyle.” However, Mother also concedes that she “did not
accomplish more than miniscule compliance with only a few of the case plan
requirements.” Mother further admits
the trial court’s findings are based upon competent credible evidence.
The record includes the recommendation of the guardian ad litem for
the child and the testimony of the witnesses at trial. The trial court was
in the best position to determine the credibility of the witnesses.
Nothing in the record of this case suggests that the mother’s behavior
would change if given more time to work on her case plan.
The evidence demonstrated very little success the mother had made on
the case plan. On that point the evidence demonstrates that any
improvement that mother has made in her life is tentative and,
perhaps, temporary, and that she is at risk of relapse. It appears the
mother cannot raise her child without the structure and the support of
CCDCFS. Without the involvement of numerous outside resources, the
mother simply is unable at this time to maintain a safe and structured
environment in the home and to remain drug free.
CCDCFS argues that the juvenile court’s permanent custody
determination is supported by clear and convincing evidence. CCDCFS maintains
that the juvenile court complied with statutory requirements and made all relevant
statutory findings. These include specific findings related to R.C. 2151.414(E)(1),
(4), (10), (11), (12), and (13), which, according to R.C. 2151.414(E), mandated that
D.F. could not or should not be returned to Mother. CCDCFS further argues that
the trial court considered the factors listed in R.C. 2151.414(D)(1) and sufficient
evidence was presented to support a finding of at least one of the five factors. Thus,
it contends that the trial court did not abuse its discretion in determining that
permanent custody was in the best interest of the child. CCDCFS notes that Mother
does not specifically challenge any of the juvenile court’s individual findings despite
the argument that she should have been given more time to achieve reunification.
When reviewing a juvenile court’s judgment in child custody cases,
the Ohio Supreme Court has stated that the “court’s decision in a custody proceeding
is subject to reversal only upon a showing of abuse of discretion.” In re A.J., 148
Ohio St.3d 218, 2016-Ohio-8196, 69 N.E.3d 733, ¶ 27, citing Davis v. Flickinger, 77
Ohio St.3d 415, 417, 674 N.E.2d 1159 (1997).
We recognize that the “[t]ermination of parental rights is an
alternative of last resort but is sanctioned when necessary for the welfare of a child.”
In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 7, citing
In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th Dist.1994). Before a court
may terminate parental rights and award permanent custody of a child to the proper
agency, it must determine by clear and convincing evidence that (1) one of the factors
enumerated in R.C. 2151.414(B)(1)(a)-(e) applies, and (2) an award of permanent
custody is in the child’s best interest. R.C. 2151.414(B).
“‘Clear and convincing evidence’ is evidence that ‘will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established.’” In re C.B., 8th Dist. Cuyahoga No. 92775, 2011-Ohio-5491, ¶ 28,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). “Where clear
and convincing proof is required at trial, a reviewing court will examine the record
to determine whether the trier of fact had sufficient evidence before it to satisfy the
requisite degree of proof.” In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-
5496, ¶ 24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
“‘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 J.M-R., 8th Dist. Cuyahoga No.
98902, 2013-Ohio-1560, ¶ 28, quoting 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). See In re
AR.S., 2021-Ohio-1958, 174 N.E.3d 28 (8th Dist.).
a. R.C. 2151.414(B)(1)(a)-(e) Factors
Pursuant to R.C. 2151.414(B)(1):
[T]he court may grant permanent custody of a child to a movant if the
court determines at the hearing * * *, 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 that filed the motion for permanent custody and
that any of the following apply:
(a) The child is not abandoned or orphaned [or] has not been in the
temporary custody of one or more public services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period * * * and the child cannot be
placed with either of the child’s parents within a reasonable time or
should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period
* * *.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three
separate occasions by any court in this state or another state.
(Emphasis added.) “Only one of the factors must be present to satisfy the first prong
of the two-part analysis for granting permanent custody to an agency.” In re D.H.,
8th Dist. Cuyahoga No. 110505, 2021-Ohio-3821, ¶ 27, citing In re L.W., 8th Dist.
Cuyahoga No. 104881, 2017-Ohio-657.
The juvenile court must consider all relevant evidence when
determining whether R.C. 2151.414(B)(1)(a) is applicable and, if any of the factors
contemplated by R.C. 2151.414(E)(1)-(16) exist as to each of the child’s parents, the
juvenile court must enter a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent. R.C.
2151.414(E). Only one of the enumerated factors under R.C. 2151.414(E) is required
for the court to make such a finding. In re L.W., 8th Dist. Cuyahoga No. 107708,
2019-Ohio-1343, ¶ 29, quoting In re Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d
1210 (8th Dist.2000), and citing In re R.M., 8th Dist. Cuyahoga Nos. 98065 and
98066, 2012-Ohio-4290, ¶ 14 (the existence of only one factor will support the
court’s finding that the child cannot be reunified with the parent within a reasonable
time).
With respect to R.C. 2151.414(B)(1)(b) and 2151.414(E)(10), “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.” R.C.
2151.011(C).
Here, the juvenile court determined R.C. 2151.414(B)(1)(a) was
applicable because the following (E) factors exist:
(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 parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home.
(E)(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child.
***
(E)(10) The parent has abandoned the child.
(E)(11) The parent has had parental right terminated with respect to a
sibling of the child and the parent has failed to provide clear and
convincing evidence to prove, that notwithstanding the prior
termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety of the
child.
([E])(12) The parent is incarcerated at the time of the filing of the
Motion for permanent custody or the dispositional hearing of the child
and will not be available to care for the child for at least [18] months
after the filing of the Motion for permanent custody or dispositional
hearing.
(E)(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the child.
(Judgment entry, Sept. 27, 2022.) Therefore, D.F. could not be placed with her
parents within a reasonable period of time or should not be placed with either
parent.
The juvenile court further found D.F. was abandoned pursuant to
R.C. 2151.414(B)(1)(b). The court reasoned, “The mother has only had one visit with
the child via Zoom video while she was incarcerated in Cuyahoga County jail in
December 2021. The alleged father has not visited the child since her release[ ] from
the hospital and placed in the care of CCDCFS.” Id. Mother does not address the
applicability of R.C. 2151.414(B)(1)(b) on appeal.
The juvenile court’s findings regarding R.C. 2151.414(B) and (E) are
supported by the evidence in the record. For example, clear and convincing evidence
supports the court’s determination that D.F. was abandoned pursuant to R.C.
2151.414(E)(10) and 2151.414(B)(1)(b). The same evidence demonstrates a lack of
commitment pursuant to R.C. 2151.414(E)(4).
The record reflects Mother was incarcerated in various counties but
for a two-week period throughout D.F.’s 10-month life. Mother was to remain
incarcerated until 2025. From D.F.’s birth in November 2021 to the trial in
September 2022, Mother had only one Zoom visit with D.F. The alleged father, who
never established paternity, had not visited or contacted D.F. since her birth. Thus,
the record supports the trial court’s finding that D.F.’s parents failed to visit or
maintain contact with D.F. for more than 90 days, raising the presumption of
abandonment.
The record does not contain any evidence suggesting either parent
attempted to maintain contact with D.F. to rebut that presumption. Rather, Social
Worker testified, “[Mother] had opportunity to ask every day if she — went through
[the] protocol [of going to her liaison while in Portage County]. Just like she was
able to get virtual visitation through Cuyahoga County, because she asked * * *.”
(Sept. 13, 2022, tr. 27.) Social Worker further advised that despite monthly
attempts, she has had “zero contact” with the alleged father.
Because the juvenile court’s application of one or more
R.C. 2151.414(B) factors is supported by clear and convincing evidence, the first
prong of the two-part test to terminate parental rights and award permanent
custody to CCDCFS is met.
b. The Child’s Best Interest
In determining the best interest of a child, the juvenile court must
consider all relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D)(1).
Although a trial court is required to consider each relevant factor
under R.C. 2151.414(D)(1) in deciding to award permanent custody, “[t]here is not
one element that is given greater weight than the others pursuant to the statute.” In
re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. This court
has stated that only one of these enumerated factors needs to be resolved in favor of
the award of permanent custody. In re L.W., 2019-Ohio-1343, at ¶ 39, citing In re
Moore, 8th Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31,
2000).
Here, the juvenile court found permanent custody to be in the best
interest of the child. The court noted that it considered the relevant factors of R.C.
2151.414(D)(1) as well as any applicable factors in division (E)(7)-(11) and found
the factors in (D)(1) weigh[ ] in favor of permanent custody. The child
is too young to express her wishes.
The [GAL] for the child[ ] recommends permanent custody as being in
the best interest of the child.
There is evidence that one or more of the factors in [R.C. 2151.414(E)]
exist and the child cannot be placed with one of the child’s parents
within a reasonable period of time or should not be placed with either
parent; no relative or other interested person has filed or has been
identified in a motion for legal custody of the child.
Therefore, it is in the best interest of the child to be placed in the
permanent custody of [CCDCFS].
(Judgment entry, Sept. 27, 2022.)
Mother concedes “the court clearly considered all relevant factors, as
well as additional factors listed in [ ]R.C. 2151.414(E).” Mother further concedes
[t]he court did not specifically tie its analysis to the enumerated factors,
instead providing more general, yet still comprehensive, analysis. It is
clear that the court focused on stability in particular; it is equally clear
from the court’s findings that the court did not find that Appellant
could provide permanent stability.
Despite these concessions, we provide the following analysis and find
that permanent custody is in the best interest of D.F. The evidence demonstrates
that D.F. had little to no interaction with her parents; was bonded to her sister, with
whom she was placed in a foster home; and was “attached to the hip” of her foster
mother. The GAL recommended permanent custody and believed it to be in the best
interest of D.F. D.F. needed legally secure permanent placement that could provide
for her basic needs as well as her substance abuse exposure needs. Such a placement
could not be achieved without a grant of permanent custody to the agency due to the
ongoing incarceration of Mother, mental health and substance abuse concerns
regarding Mother, non-established paternity, abandonment of D.F. by Mother and
the alleged father, and noninvolvement of other relatives or interested persons.
Moreover, several R.C. 2151.414(E) factors apply.
Based on the foregoing, we find there is clear and convincing evidence
in the record to support the juvenile court’s determination that permanent custody
to CCDCFS is in the child’s best interest. Accordingly, we hold that the court did not
abuse its discretion in determining that permanent custody of the child be awarded
to CCDCFS.
Therefore, Mother’s single assignment of error is overruled.
III. Conclusion
The juvenile court’s findings and its judgment granting permanent
custody of D.F. to CCDCFS are supported by clear and convincing evidence in the
record.
Accordingly, 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.
_______________________
MARY J. BOYLE, JUDGE
LISA B. FORBES, P.J., and
SEAN C. GALLAGHER, J., CONCUR