In re C.L. , 2021 Ohio 3819 ( 2021 )

[Cite as In re C.L., 2021-Ohio-3819.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE C.L., ET AL. :
: No. 110363
Minor Children :
:
[Appeal by Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 28, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-18-907033 and AD-18-907034
Appearances:
Judith M. Kowalski, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michelle A. Meyers, Assistant Prosecuting
Attorney, for appellee CCDCFS.
Cullen Sweeney, Cuyahoga County Public Defender, and
Britta Barthol, Assistant Public Defender, for appellee
A.A.
MICHELLE J. SHEEHAN, J.:
Appellant, C.L.L., the mother of two children, C.L. and E.L., appeals
the juvenile court’s grant of custody of the children to their father, A.A. Because the
juvenile court (1) did not err in precluding appellant’s testimony in this case, (2) did
not abuse its discretion determining the children’s best interests were met by
awarding custody to A.A., and (3) ordered appropriate restrictions on appellant’s
visitation with the children, we affirm the judgment.
I. PROCEDURAL HISTORY AND FACTS
On June 1, 2018, the Cuyahoga County Division of Children and
Family Services (“CCDCFS or “the Agency”) filed a complaint alleging appellant’s
children C.L. and E.L. were dependent and requesting protective supervision. On
September 10, 2018, the children were found to be dependent after a hearing and
placed in protective supervision with the Agency. On September 27, 2018, the
Agency filed a motion for leave to amend the disposition from protective supervision
to temporary custody. A hearing was held on October 19, 2018, and the juvenile
court issued an order committing C.L. and E.L. to the temporary care and custody
of the Agency. On October 23, 2018, appellant objected to the decision, and on
November 29, 2018, the objections were overruled. On December 4, 2018, the order
granting temporary custody of the children to the Agency was approved.
On May 13, 2019, the Agency filed a motion to extend the order of
temporary custody that was granted on June 25, 2019, with the temporary custody
being extended to November 30, 2019. On October 9, 2019, the Agency filed a
second motion for extension of temporary custody that was granted on February 5,
2020, extending the Agency’s custody of the children until May 30, 2020.
On May 14, 2020, CCDCFS filed a motion to modify temporary
custody of the children to legal custody of their father, A.A., with protective
supervision to the Agency. On September 28, 2020, the juvenile court began a
hearing on the motion. Social worker Shanara Leonard testified that she was
assigned the case in August 2020 and, at the time the Agency filed the complaint
alleging the children to be dependent, C.L. was four years of age and E.L. was two
years of age. The children had been removed from appellant’s care due to concerns
about her mental health and her inability to manage the children’s behavior. A case
plan was developed with the goal of reunification that included appellant receiving
mental health services, parenting classes, and assistance for housing.
Leonard further testified that in conjunction with the case plan,
appellant reported that she completed a mental health assessment and had a
therapist, but provided no specific information that the Agency could verify. In
2019, appellant was referred for a parenting program but did not complete the
program. Further, appellant refused to communicate with the social worker over
the phone, expressing that she did not want to be recorded, but did not attend any
meetings with the social worker. Appellant was also referred for assistance with
housing but did not follow through with the referral. At the time of the hearing in
September 2020, appellant was homeless and had been sleeping in her car or bus
stations and in hotels when she could.
After the children were initially removed, the children’s father, A.A.,
began having regular visits. The visits with A.A. were unsupervised by December
2019. In June 2020, the Agency placed the children with A.A., and they remained
with him. Leonard testified that she visited the home on multiple occasions and
stated it was safe and that the children had all their basic needs met. The children
were further observed smiling and playing with their father. Leonard reported that
the children adjusted well to being with their father and that he demonstrated that
he can consistently meet their basic needs.
As to appellant’s relationship with her children, Leonard testified that
appellant had supervised visitation with the children at first, but that visitation
ceased in June 2020. In August 2020, appellant said she wanted visitation with her
children, but then said she did not want visitation, stating she did not want to be in
a public setting because she did not want others or the children to see her emotional.
Further, appellant declined to speak with the children over the phone when given
the opportunity.
After Leonard testified, the court granted appellant a continuance in
order to produce witnesses. On January 22, 2021, the hearing resumed and
appellant’s attorney noted appellant wished to testify, but he advised her not to,
stating there was another proceeding in juvenile court in which her testimony could
be used against her. The magistrate conducting the hearing asked appellant if she
understood that she had a right to remain silent. Appellant answered that “I know
I have the right, but I don’t agree today.” The juvenile court then explained to
appellant that she has a right to remain silent and that if she remains silent, nobody
can comment on her decision and asked if she understood. Appellant said, “No, I
don’t understand that.”
Appellant’s attorney and the magistrate again attempted to explain
her rights to her. After each explanation, appellant wavered in her responses, from
stating that she did not understand her rights, to stating that she understood her
rights, to stating, “I don’t understand the right to remain silent part. I can’t
understand that one.” Appellant also stated that she didn’t “understand how I will
talk and people will question me, but I can’t question them.” After the court
procedure was explained, appellant stated that “I understand it, but I don’t agree
with it. I understand some of it.” The magistrate again asked appellant if she wanted
to waive her right and testify, she responded, “I don’t know about the Fifth
Amendment right * * * I mean, I don’t want to waive that right.” Her attorney then
asked if she wanted “to be silent and not testify?” Appellant responded “No.” Her
attorney then explained her right not to testify, and appellant responded that “[t]his
whole thing is (inaudible) confused. I don’t understand. I just don’t. I’m sorry.
Everything is all messed up. I don’t understand this,” and continued by stating “I
want to testify, but — I want people questioning me, but I want to have the
opportunity to ask other people questions.” When explained again that court
procedure would not allow her to ask questions, she stated “It’s wrong.” The
magistrate then explained that if appellant testified, she couldn’t ask any questions
and again asked appellant, “Do you want to waive your Fifth Amendment right to
remain silent and testify?” Appellant said “I’m sorry. I can’t answer the question. I
don’t want you to answer it for me either.” Appellant was again asked if she wished
to waive her right not to testify. Appellant stated, “I’m sorry. I can’t decide on that
because I don’t think that’s the right move for this court case.”
After another discussion of court procedure, appellant indicated that
she wanted other people to testify. The following colloquy was then had between
the magistrate and appellant:
THE COURT: Thank you. [C.L.L.], you have a Fifth Amendment right
to remain silent. You can waive that and testify here
today. Do you want to waive your Fifth Amendment
right and testify or do you want to invoke your Fifth
Amendment right? Yes or no?
APPELLANT: I can’t answer it.
THE COURT: Based on the fact that mother has stated she cannot
answer that question, mother has a Fifth Amendment
right to remain silent. In order to protect mother’s
rights, the Court cannot force mother to testify. She
cannot give this Court an answer. She has indicated at
least twice that she can’t answer that question. I cannot
force her to testify. No one in this courtroom can. I
can’t make any inferences, nor can anybody else on the
fact that she’s not testifying.
The guardian ad litem (“GAL”) testified that he had visited with the
father and children on four occasions from August 11, 2020, to the date of the
hearing and recommended that the children’s best interests would be to grant legal
custody to their father and that the mother should have visitation.
On February 12, 2021, the juvenile court committed the children to
the custody of their father with an order of protective supervision to the Agency. The
juvenile court further ordered that the Agency continue to facilitate and supervise
visits by appellant. On February 22, 2021, appellant objected to the order, and the
objections were overruled on March 15, 2021.
II. LAW AND ARGUMENT
A. THE TRIAL COURT ACTED WITHIN ITS DISCRETION BY NOT
ALLOWING APPELLANT TO TESTIFY AT THE HEARING
Appellant’s first assignment of error reads:
The trial court erred to the prejudice of the appellant and against the
best interests of the children by denying her the right to testify at trial.
Appellant argues that she was denied the right to testify and that such
denial was an abuse of discretion. The Agency and A.A. argue that because appellant
did not knowingly waive her rights, there was no abuse of discretion and appellant
suffered no prejudice from that decision.
In a juvenile court proceeding regarding custody, parents have a Fifth
Amendment right not to testify. In re Billman, 92 Ohio App.3d 279, 280-281, 634
N.E.2d 1050 (8th Dist.1993). “‘In a case where parental rights are permanently
terminated, it is of utmost importance that the parties fully understand their rights
and that any waiver is made with full knowledge of those rights and the
consequences which will follow.’” In re Rock Children, 5th Dist. Stark
No. 2004CA00358, 2005-Ohio-2572, ¶ 17, quoting Elmer v. Lucas Cty. Children
Serv. Bd., 36 Ohio App.3d 241, 245, 523 N.E.2d 540 (6th Dist.1987); In re A.C., 8th
Dist. Cuyahoga No. 102351, 2015-Ohio-3673, ¶ 5. Accordingly, it was incumbent
upon the juvenile court to ensure that appellant understand her right not to testify
and ensure that any waiver was made with full understanding of the effects of her
decision to testify.
Further, a court has discretion to admit or exclude evidence.
Appellate courts review a decision to allow or disallow testimony under an abuse
of discretion standard. Buckmaster v. Buckmaster, 4th Dist. Highland
No. 13CA13, 2014-Ohio-793, ¶ 21; see also In re M/W Children, 1st Dist. Hamilton
No. C-180623, 2019-Ohio-948 (reviewing denial of mother’s request for
continuance in order to testify for an abuse of discretion). An abuse of discretion
is more than an error of law or judgment; it implies that a court has acted in a
manner that is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In this case, the record indicates appellant vacillated between stating
she understood the right to testify, stating that she wanted to testify and did not
want to testify, and indicated that she wanted to testify in order to ask questions
from the witness stand. After numerous attempts to determine whether or not
appellant understood her right not to testify, the court was unable to satisfy itself
that appellant understood her right or voluntarily waived that right. Given that the
juvenile court could not determine if appellant understood her right not to testify
and its effect and could not determine if appellant did in fact wish to voluntarily
waive her rights, we cannot find that the juvenile court abused its discretion by
precluding her testimony.1
The first assignment of error is overruled.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
DETERMINING THAT THE BEST INTERESTS OF THE CHILDREN
WERE MET BY GRANTING CUSTODY TO THE CHILDREN’S
FATHER
Appellant’s second assignment of error reads:
The trial court erred to the prejudice of the appellant and against the
best interests of the minor children in awarding legal custody to
father.
Appellant argues that the court erred in its determination that the
best interests of her children were served by awarding legal custody to A.A., their
father, because he had no relationship with the children prior to the Agency’s
involvement and the Agency did not do more to investigate A.A.’s care of the
children. The Agency and A.A. argue that the trial court properly considered the
necessary factors in awarding A.A. custody of his children.
Where a child is adjudicated to be dependent, R.C. 2151.353(A)(3)
provides that the court may award 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.” This court has found that:
1 We also note that Evid.R. 103(A) provides that “Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is affected.”
Evid.R. 103(A)(2) requires that where a ruling excluding evidence is made, “the substance
of the evidence was made known to the court by offer or was apparent from the context
within which questions were asked.” The record does not reflect a proffer of appellant’s
testimony or indicate in any manner what appellant’s testimony would be.
An award of legal custody is “significantly different” than the
termination of parental rights. In re G.M., 8th Dist. Cuyahoga No.
95410, 2011-Ohio-4090, ¶ 14. An award of legal custody is “not as
drastic a remedy as permanent custody” because, despite losing legal
custody of the child, the parent retains residual parental rights,
privileges, and responsibilities and can petition the court for a custody
modification in the future. In re L.D., 10th Dist. Franklin No. 12AP-
985, 2013-Ohio-3214, ¶ 7; In re H.A.I., 8th Dist. Cuyahoga No. 97771,
2012-Ohio-3816, ¶ 36-37.
In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 32. The juvenile
court’s award of custody is based upon determining the best interest of the child
“‘based upon a preponderance of the evidence.’” Id. at ¶ 44, quoting In re M.J.M.,
8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 11. A preponderance of the
evidence means evidence that is more probable, more persuasive, or of greater
probative value. In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7.
“The decision whether to grant or deny a request for legal custody is within the
sound discretion of the juvenile court.” In re T.R., 8th Dist. Cuyahoga No. 102071,
2015-Ohio-4177, ¶ 45.
When granting custody, the juvenile court is required under
R.C. 2151.414(D)(1) to consider “all relevant factors,” including, but not limited to,
the following: (1) the interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster parents, and out-of-home providers, and any other
person who may significantly affect the child; (2) 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; (3) the custodial history of the child; (4) 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 (5) whether any of the factors
set forth in R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e). As the
Supreme Court of Ohio explained, “[R.C. 2151.414(D)] requires a weighing of all the
relevant factors * * * [and] requires the court to find the best option for the child
* * *.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 64.
Regarding A.A.’s ability to care for his children, the juvenile court
found that A.A. had been engaged with the Agency and that his children had been
living with him and that he had suitable housing and employment, evidencing
means to provide for the basic needs of his children. The record further reflects
these findings were supported by the social worker’s testimony based upon several
visits to A.A.’s home. In contrast, the record reflects that the juvenile court had
evidence before it that appellant had stopped visitation with her children and had
no contact with them for several months before the custody hearing and that, at the
time of the hearing, appellant had unaddressed mental health issues, was homeless,
and did not have the means to provide basic needs for her children. The trial court
further could consider the wishes of the children. Testimony indicated that C.L. did
not wish to visit with appellant and E.L. was silent about her wishes. Additionally,
the GAL recommended A.A. be granted custody. The custodial history of the
children further supported the trial court’s determination that the best interests of
the children were met by granting custody to A.A. where the children had lived with
him for the past seven months prior to trial.
The juvenile court’s decision to award custody to A.A. demonstrates
that it considered all the necessary factors and that its decision was supported by
competent, credible evidence. As such, we cannot say that the decision to grant
custody of C.L. and E.L. was an abuse of the juvenile court’s discretion.
The second assignment of error is overruled.
C. THE TRIAL COURT’S DETERMINATION THAT APPELLANT
WOULD HAVE SUPERVISED VISITATION WAS NOT AN ABUSE OF
DISCRETION
Appellant’s third assignment of error reads:
The trial court abused its discretion in granting mother such restrictive
visitation that it amounts to a denial of visitation.
Appellant argues that the visitation granted by the court was so
limited that the visitation amounts to “no visitation” where it is supervised by the
Agency because appellant presumes that it will “be limited and brief.” The Agency
and A.A. argue the decision that visitation would be supervised was proper where
appellant had not seen the children in months and where the record demonstrated
she failed to address the issues that led to the intervention by the Agency.
“In ordering visitation, the juvenile court must consider the ‘totality
of the circumstances as they relate to the child’s best interest.’” In re K.D., 2017-
Ohio-4161, 92 N.E.3d 123, ¶ 27 (9th Dist.), citing In re M.E., 10th Dist. Franklin No.
12AP-684, 2013-Ohio-2562, ¶ 25, quoting In re C.J., 4th Dist. Vinton No. 10CA681,
2011-Ohio-3366, ¶ 15. A court’s determination as to visitation is reviewed for an
abuse of discretion. Id. at ¶ 26, citing In re G.S., 9th Dist. Summit No. 28050, 2016-
Ohio-7471, ¶ 32.
The record established through the pendency of the case that the
Agency conducted supervised visits between appellant and the children. At the time
of the custody hearing, there was no evidence that appellant had addressed the
issues of her mental health that led to the Agency involvement. Further, appellant
had not participated in any recommended services. Moreover, appellant had not
visited with her children in several months at the time of the dispositional hearing,
despite the social worker’s repeated attempts to meet and arrange a visitation
schedule. Appellant’s behaviors demonstrated that the court did not abuse its
discretion by ordering visits to be supervised by the Agency.
The third assignment of error is overruled.
III. CONCLUSION
In determining custody of the children, the juvenile court did not
abuse its discretion in precluding appellant’s testimony where appellant was unable
to make a knowing, intelligent, or voluntary waiver of her right not to testify. The
juvenile court further considered the necessary factors in determining that the
children’s best interests were met by awarding custody to A.A. and that
determination was not against the manifest weight of the evidence. Under the
totality of the circumstances, an order of supervised visitation for appellant and the
children was appropriate and not an abuse of discretion.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
LISA B. FORBES, J., CONCUR