In re M.M. , 2019 Ohio 5246 ( 2019 )

[Cite as In re M.M., 2019-Ohio-5246.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE M.M. :
: No. 108710
A Minor Child :
:
[Appeal by S.M., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 19, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-16915042
Appearances:
Rick L. Ferrara, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Willie Mitchell, Assistant Prosecuting
Attorney, for appellee.
LARRY A. JONES, SR., J.:
Mother, S.M., appeals the trial court’s award of permanent custody of
M.M. to the Cuyahoga County Department of Children and Family Services
(“CCDCFS” or “Agency”). For the reasons that follow, we affirm.
Procedural History and Facts
In 2016, CCDCFS filed a complaint for neglect and requested
temporary custody of M.M. M.M. was adjudicated dependent and committed into
the Agency’s temporary custody. In October 2018, the Agency moved for permanent
custody. The trial court held a hearing after which it granted the Agency’s motion,
finding that a grant of permanent custody to CCDCFS was in M.M.’s best interest.
Nine-year-old M.M. was initially placed into Agency custody after
Mother showed up at M.M.’s school intoxicated and was arrested. The Agency
developed a case plan, which included substance abuse services, including weekly
drug and alcohol screens, mental health counseling, and a requirement to maintain
housing. The goal of the case plan was reunification.1
Mother completed inpatient substance abuse treatment in November
2016 and began intensive outpatient treatment. Mother was to complete intensive
outpatient treatment in February 2017 but tested positive for marijuana. In March
2017, Mother filed a motion for increased visitation. The agency opposed the motion
because Mother tested positive for marijuana the previous month and told her
caseworker she would again test positive for marijuana in March. In April 2017,
Mother was charged with driving under the influence.
Mother completed another inpatient substance abuse treatment
program in August 2017. She made progress on her case plan and CCDCFS filed a
1Father is deceased.
motion to terminate temporary custody with protective supervision. Mother’s
boyfriend contacted the Agency, concerned about reunification because Mother was
drinking and had alcohol in the house. The Agency requested Mother take a drug
and alcohol test; Mother tested positive for alcohol. Mother told her caseworker,
Linda Yeldell (“Yeldell”), that she tested positive because she drank a bottle of
Nyquil because she needed help sleeping after a recent dog bite. Yeldell was unable
to verify Mother had been bitten by a dog.
CCDCFS moved to withdraw its motion to terminate temporary
custody. The Guardian Ad Litem (“GAL”) filed a report recommending that the
Agency continue temporary custody due to Mother’s inability to maintain her
sobriety.
At a review hearing in June 2018, the court noted that Mother had
recently submitted several negative urine screens but had failed to submit urine
screens for the last two weeks. In August 2018, Mother had M.M. for overnight
visitation but left the child alone so Mother could go out drinking. An incident
occurred and Mother was subsequently arrested and charged with domestic violence
and endangering children, with M.M. as the named victim. The court overseeing
Mother’s criminal case ordered her to have no contact with M.M., and Mother has
not seen M.M. since September 2018.
Although Mother began outpatient substance abuse treatment on
more than one occasion, she had not successfully completed that program as of the
date of the permanent custody hearing. Yeldell testified that Mother refused to sign
a release so that Yeldell could speak with Mother’s probation officer about the results
of Mother’s drug and alcohol tests. Yeldell was concerned that Mother often waited
two to three days to complete her drug and alcohol tests, even though the Agency
requires clients to complete a test within 24 hours of being asked to take the test.
Yeldell explained that the Agency looks at a delay in compliance as a “possible
positive.” The Agency had also received information and was therefore concerned
that Mother was “manipulating the tests,” which were not monitored, and put in a
request to have her drug and alcohol tests monitored.
Mother participated in mental health services to address her
depression, anxiety, and borderline personality diagnoses. Yeldell testified that
Mother was not always compliant with the mental health portion of her case plan.
For example, Mother used her substance abuse provider to provide mental health
counseling services for her, which was not allowed under Agency guidelines. In
addition, one of Mother’s mental health therapists discontinued therapy due to “an
incident [with Mother] that occurred during their therapy session.” As of the date
of the permanent custody hearing, Mother had reengaged with an appropriate
mental health counselor and was compliant with medication.
Throughout the pendency of the case, Mother was unemployed but
had housing.
The GAL recommended that the court grant permanent custody of
M.M. to the Agency, noting that M.M. had been in Agency custody for two and one-
half years, that Mother has been given that amount of time to address her substance
abuse and mental health issues but was unable to maintain sobriety, and that there
was no recent visitation due to the no-contact order.
Yeldell testified that the Agency initially placed M.M. with her
paternal aunt and uncle and she lived with them until December 2018 when she
“disrupted” her placement. Yeldell testified that M.M. has serious behavioral
problems, which required the removal from her placement with her aunt and uncle.
M.M. currently lived in a residential treatment center, where she was receiving
treatment for oppositional defiant disorder and reactive attachment disorder. The
paternal aunt and uncle told the Agency that M.M. could return to their house when
she was done with treatment; the aunt and uncle visit M.M. at the treatment center;
and the aunt and uncle participate in counseling sessions with M.M. According to
Yeldell, M.M. did not currently express an interest in visiting with her mother.
Yeldell did not feel that Mother could handle M.M.’s behavior issues.
Assignment of Error
I. The trial court abused its discretion in awarding permanent custody
because the state did not present sufficient, clear, and convincing
evidence necessary for the order.
Law and Analysis
In her sole assignment of error, Mother claims that the court abused
its discretion in terminating her parental rights.
A trial court must make two determinations before granting
permanent custody. First, it must find that one of the factors listed in R.C.
2151.414(B)(1)(a)-(e) exist. If the court finds one of those factors exists, then,
second, it must find that permanent custody is in the child’s best interest under R.C.
2151.414(D)(1).
The standard of proof to be used by the trial court in deciding a
permanent custody case is clear and convincing evidence. The Ohio Supreme Court
has defined clear and convincing evidence as
the measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the allegations sought to
be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as required
beyond a reasonable doubt as in criminal cases. It does not mean clear
and unequivocal.
In re Estate of Haynes, 25 Ohio St. 3d 101, 104, 495 N.E.2d 23 (1986).
This court will not reverse the judgment of the trial court when some
competent, credible evidence supports its findings. In re Z.D., 8th Dist. Cuyahoga
No. 107878, 2019-Ohio-2337, ¶ 20, citing In re Marano, 4th Dist. Athens No.
04CA30, 2004-Ohio-6826, ¶ 12. Accordingly, we must determine if competent,
credible evidence supports the trial court’s findings regarding both the requirements
of R.C. 2151.414(B)(1)(a)-(e) and the best interest of the child. In re Z.D. at id.
As mentioned, only one of the factors under R.C. 2151.414(B)(1)(a)-
(e) must exist to satisfy the first step in a permanent custody proceeding. One of
those factors is whether the child has been in the temporary custody of one or more
public children services agencies for 12 or more months of a consecutive 22-month
period. R.C. 2151.414(B)(1)(d). In this case, the trial court made that finding.
Mother does not challenge the court’s finding and the record, on its face, clearly and
convincingly supports the finding.
Thus, the trial court’s focus was whether permanent custody was in
M.M.’s best interest. In making that determination, the trial court was required to
“consider all relevant factors,” including 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).
“[O]nly one of the best-interest-of-the-child factors needs to be
present to grant an award of permanent custody.” In re Z.D., 8th Dist. Cuyahoga
No. 107878, 2019-Ohio-2337, at ¶ 22, citing In re S.C., 8th Dist. Cuyahoga No.
102350, 2015-Ohio-2410, ¶ 30.
The trial court stated that it considered the best-interest factors, the
GAL’s report, and the following: (1) Mother was convicted of an offense listed in R.C.
2151.414(E)(6) or (E)(7); (2) Mother placed M.M. at substantial risk of harm due to
alcohol or drug abuse after the case plan was issued two or more times; (3) Mother
neglected M.M. and the seriousness, nature, or likelihood of recurrence of neglect
makes M.M.’s placement with Mother a threat to the child’s safety; and (4) M.M. has
been in custody for over two years and does not qualify for another extension of
temporary custody.
Mother contends that there was not clear and convincing evidence to
support the trial court’s finding that permanent custody was in M.M.’s best interest.
Mother claims that she was compliant with her case plan and the court’s
requirements and most of the concern dealt with M.M.’s behavior, which was out of
Mother’s control.
We find no merit to Mother’s contentions and find competent,
credible evidence in the record that supports the trial court’s findings that
permanent custody is in M.M.’s best interest.
The court noted R.C. 2151.414(D)(1)(a), which deals with the
interaction and interrelationship of the child with significant individuals in the
child’s life, including parents, siblings, relatives, and foster caregivers. Yeldell
testified that M.M. was placed with her paternal aunt and uncle at the time of
removal and has a good relationship with them. M.M. remained in her aunt and
uncle’s care until December 2018, when she was placed into a residential treatment
facility to address her behavioral issues. Her aunt and uncle visit with her at the
residential facility, participate in counseling sessions, and have indicated a
willingness to have M.M. return to live with them once she completes treatment.
Conversely, M.M. does not have a good relationship with Mother. M.M. has not
expressed a desire to visit with Mother and has been “hesitant” to visit with Mother
in the past due to Mother’s history of substance abuse. Additionally, Mother was
convicted of endangering M.M. and there is a no-contact order in place. Mother and
M.M. have not visited since September 2018, and Yeldell testified that they would
have to participate in family counseling prior to resuming visits even if the no-
contact order was lifted.
The court also considered 12-year-old M.M.’s wishes as expressed
through her GAL, pursuant to R.C. 2151.414(D)(1)(b). The GAL reported that M.M.
would rather live with her older sister or her paternal aunt, instead of Mother. While
there are other relatives who are interested in being involved in M.M.’s life, no other
relatives are willing or able to provide a permanent home for her.
The court considered M.M.’s custodial placement pursuant to R.C.
2151.414(D)(1)(c) and (d) and noted that M.M. has been in agency custody for over
two years, the Agency is unable to file for an additional extension of temporary
custody, and Mother was unable to remedy the conditions that caused M.M. to be
removed from her custody. Consequently, M.M. is in need of a legally secure
placement that could only be achieved through a grant of permanent custody to
CCDCFS.
While there is some evidence that Mother worked to maintain her
sobriety and wanted to parent M.M., she was unfortunately unable to show that she
could maintain her sobriety. Mother relapsed on more than one occasion, was
convicted for child endangering in an incident involving M.M. and ordered to have
no contact with the child, and was not compliant with drug and alcohol screens.
Finally, pursuant to R.C. 2151.414(D)(1)(e), the court noted that,
under R.C. 2151.414(E)(6) and (E)(7), Mother was convicted of endangering M.M.
Again, the court only needed to find that one best interest factor
weighs in favor of permanent custody. In this case, the trial court found that
multiple factors weighed in the favor of permanent custody. We agree that there
was competent, credible evidence in the record that supports those findings. Thus,
we find that the trial court’s finding that permanent custody was in the best interest
of the child was supported by clear and convincing evidence.
The sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR