In re K.Z. , 2019 Ohio 707 ( 2019 )

[Cite as In re K.Z., 2019-Ohio-707.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107269
IN RE K.Z.
[Appeal By: N.Z., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Juvenile Division
Case No. AD 16915692
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: February 28, 2019
ATTORNEY FOR APPELLANT
Jonathan N. Garver
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brittany E. Pukita Leach
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144
By: Cheryl Rice
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115
ALSO LISTED
GUARDIAN AD LITEM
James Schultz, Jr.
55 Public Square, Suite 1700
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Appellant-mother N.Z. (“Mother”) appeals from the decision of the Juvenile Division
of the Cuyahoga County Court of Common Pleas (the “juvenile court”) terminating her parental
rights and granting permanent custody of her son, K.Z., to the Cuyahoga County Division of
Children and Family Services (“CCDCFS” or “the agency”). For the reasons that follow, we
affirm.
Factual and Procedural Background
{¶2} K.Z. was born on September 16, 2016. On October 26, 2016, CCDCFS filed a
complaint alleging that K.Z. was abused (and that his then five-year-old brother, K.A., was
dependent) and seeking a disposition of temporary custody to CCDCFS. Specifically, the
complaint alleged that when K.Z. was born, he tested positive for heroin and experienced
withdrawal symptoms for more than two weeks. The complaint further alleged that (1) when K.Z.
was born, Mother tested positive for heroin, codeine, methadone and morphine, (2) Mother has a
substance abuse problem that prevents her from providing adequate care for her children, (3)
Mother abused heroin at least every third day during her pregnancy with K.Z., (4) Mother had been
observed falling asleep while feeding and holding K.Z. and (5) the alleged father had failed to
establish paternity or to consistently support, visit or communicate with the children. CCDCFS
also filed a motion for predispositional temporary custody of K.Z. The juvenile court granted the
emergency temporary custody of K.Z. to CCDCFS and K.Z. was placed in foster care. K.A.
remained with Mother under protective supervision. A guardian ad litem was also appointed for
the children.
{¶3} On November 21, 2016, CCDCFS filed a case plan. The case plan required Mother
(1) to undergo a drug and alcohol assessment and successfully complete drug treatment and
aftercare, (2) to submit to random drug screens and maintain a drug-free lifestyle, (3) to undergo
a mental health assessment and comply with any recommended counseling or medications, (4) to
become involved in “non-drug using” support groups, (5) to obtain stable, safe and appropriate
housing, (6) to ensure that her children’s basic needs, including food, clothing, shelter and medical
care, were met and (7) to ensure that K.A. attended school regularly. The case plan further
provided that Mother would be permitted to have weekly visits with K.Z. after she completed heart
monitor training. The stated permanency goal was reunification.
K.Z. Committed to Temporary Custody of CCDCFS
{¶4} On January 13, 2017, the guardian ad litem submitted his first report. The guardian
ad litem reported that he had received a letter indicating that Mother had been in drug treatment at
the Cleveland Treatment Center since October 30, 2015, but that he had no information regarding
Mother’s attendance or progress. He further reported that, according to CCDCFS, Mother had
admitted to using heroin at least every third day during her pregnancy with K.Z. and that although
Mother claimed to have last used heroin on September 15, 2016, she tested positive for heroin on
October 3 and 10, 2016. He indicated that he had not yet been able to visit Mother’s home because
the telephone numbers he had been given for Mother did not work.
{¶5} With respect to K.Z., the guardian ad litem reported that K.Z. was born with premature
apnea and that when he was first placed in foster care, he had a heart monitor and was being
administered caffeine. Although he no longer needed the heart monitor or caffeine, the foster
mother informed him that K.Z. had developed some additional health problems, including acid
reflux and vision issues. According to the foster mother, Mother had only seen K.Z. three times
since his discharge from the hospital — at doctor’s appointments — but that there had been
confusion regarding whether Mother had to be trained on the heart monitor before she could have
regular visits with K.Z. The foster mother indicated that Mother had been recently trained on the
heart monitor, removing this hurdle to visitation. Based on his investigation to date, the guardian
ad litem recommended that temporary custody of both K.A. and K.Z. be granted to CCDCFS.
{¶6} Mother admitted the allegations of an amended complaint,1 and on February 1, 2017,
the juvenile court found K.Z. to be abused. On February 7, 2017, K.Z. was committed to the
1
Specifically, Mother admitted:
1. On the date of K.Z.’s birth, both mother and K.Z. tested positive for heroin.
temporary custody of CCDCFS. The juvenile court approved the agency’s case plan, found that
the agency had made reasonable efforts to make it possible for K.Z. to be reunified with Mother
and also ordered Mother to attend three 12-step meetings each week, to submit to requested drug
screens and to pay $50 per month in child support.
{¶7} On March 13, 2017, CCDCFS filed an amended case plan. Under the amended case
plan, Mother was required to (1) attend K.Z.’s medical appointments, (2) become actively involved
with his treatment and (3) demonstrate her knowledge of the care required for K.Z. while
interacting with him. The stated permanency goal remained reunification. In April 2017, the
juvenile court approved the amended case plan.
CCDCFS’ Motion to Modify Temporary Custody to Permanent Custody
{¶8} On October 4, 2017, CCDCFS filed a motion to modify temporary custody of K.Z. to
permanent custody pursuant to R.C. 2151.413. In support of the motion, the agency submitted an
affidavit from Sierra Whatley, the CCDCFS child protective specialist (the “CCDCFS social
worker”) assigned to K.Z.’s case. In her affidavit, Whatley stated, in relevant part, that Mother
had been referred for intensive outpatient treatment four times a week with random drug screens;
that she was discharged from that program in April 2017 after she tested positive for
Mother also tested positive for codine [sic], methadone, and morphine at
that time.
2. Mother has a substance abuse problem, specifically heroin, [which]
interferes with her ability to provide adequate care for the children.
3. Alleged father * * * has failed to establish paternity and has failed to
consistently support, visit, or communicate with the children.
***
Reasonable efforts were made by the Cuyahoga County Division of Children and
Family Services to prevent the removal of the children from the home, and removal
is in the best interest of the child.
benzodiazepines three times; that Mother was immediately referred for inpatient drug treatment
but did not begin treatment until August 23, 2017; that Mother had failed to obtain independent
and stable housing; that Mother had attended only four of 50 medical appointments for K.Z. and
does not know or understand how to care for his medical needs; that Mother had failed to complete
a mental health assessment and that Mother had failed to visit K.Z. on a consistent basis. Whatley
further stated that K.Z. had developed an attachment with his foster family and that his foster
parents had indicated a desire to provide K.Z. with a permanent home.
{¶9} On October 19, 2017, the guardian ad litem submitted an updated report. He reported
that Mother had successfully completed inpatient substance abuse treatment, that K.A. continued
to reside with Mother and that K.A. had stayed with family friends while Mother was in inpatient
treatment.
{¶10} The guardian ad litem further reported that, according to CCDCFS, Mother had not
visited K.Z. since July 2017, had attended only four of 47 medical appointments and knew “little
to nothing” about K.Z.’s medical conditions and care. He indicated that although Mother claimed
to lack access to transportation, the CCDCFS social worker indicated that RTA bus service was
available that would allow Mother to attend visits and medical appointments. He further indicated
that according to the foster mother, Mother became frustrated and raised her voice when the foster
mother attempted to educate her about K.Z.’s medical conditions. The guardian ad litem
recommended continuing protective supervision of K.A., continuing temporary custody of K.Z.
and scheduling CCDCFS’ motion to modify temporary custody to permanent custody for a
hearing.
Mother’s Motions
{¶11} On October 23, 2017, Mother filed a motion to establish a temporary
visitation/parenting time schedule at her residence. Mother alleged that she had attempted to be
involved in K.Z.’s life but that, because she did not own a car, it was difficult for her to attend the
visits scheduled by the CCDCFS social worker. She further asserted that if visits were held at
Mother’s residence, it would allow K.Z. to bond with his brother, K.A.
{¶12} CCDCFS opposed the motion. The agency asserted that Mother had no need for
transportation to visit K.Z. because all visits with K.Z. occurred at a public library within walking
distance of Mother’s residence, that the agency had informed Mother that visits could take place
after school hours so K.A. could attend scheduled visits with her and that Mother’s home was not
suitable for in-home visitation with K.Z. due to his medical issues. The agency also claimed that
K.Z. would be at risk of physical injury if visitation were to occur at Mother’s home due to a lack
of supervision and based on a prior incident in which Mother fell asleep while holding K.Z. The
court denied Mother’s motion.
{¶13} On November 7, 2017, Mother filed a motion requesting that CCDCFS provide
transportation so Mother could attend K.Z.’s medical appointments. Once again, CCDCFS
opposed the motion, asserting that it does not provide transportation to medical appointments for
any family and issues bus passes only when a parent needs to meet with a service provider for drug
and alcohol assessments or drug screens — not for a parent’s “daily use” where a child has multiple
medical appointments each week. The agency also argued that Mother’s motion should be denied
because if she were to be reunified with K.Z., she would need to show that she could provide her
own transportation for K.Z.’s medical appointments. Once again, the court denied Mother’s
motion.
{¶14} On November 21, 2017, the juvenile court arraigned Mother on the agency’s motion
to modify temporary custody to permanent custody. Mother indicated that she had no objection
to the juvenile court’s finding that the agency had made reasonable efforts to attempt to reunify
Mother with K.Z. through its referrals for substance abuse and mental health services and referrals
for basic needs. The court indicated that the permanency plan was reunification and that the
concurrent permanency plan was permanent custody and adoption. The juvenile court also
granted a six-month extension of protective supervision over K.A. based on the agreement of the
parties and its determination that extension of protective supervision was in K.A.’s best interest.
{¶15} At the December 19, 2017 pretrial conference, the agency advised that it was ready
for the court to set a hearing date for its motion for permanent custody. At the request of the
guardian ad litem and Mother, the juvenile court agreed to set the hearing “out a little way” so the
guardian ad litem could complete his investigation and Mother could have more time to comply
with the case plan, particularly with regard to obtaining suitable housing for K.Z. and attending
his medical appointments.2
{¶16} On February 13, 2018, Mother filed a first request for extension of temporary
custody.3 Mother requested that the court extend temporary custody of K.Z. for six months so
that she could complete her case plan. Mother asserted that she had shown significant progress
towards the completion of her case plan by taking a parenting class, having successfully completed
an inpatient drug treatment program at the Hitchcock Center for Women, attending AA meetings
2
The juvenile court originally scheduled the evidentiary hearing on the agency’s motion to modify temporary
custody to permanent custody for March 13, 2018. The hearing was later continued to April 25, 2018 at the request
of the parties.
3
As it relates to K.Z., this was actually Mother’s second motion requesting a six-month extension to complete
her case plan. On October 23, 2017, Mother filed a “motion for six month extension” to complete her case plan
referencing both K.A. and K.Z. As it related to K.Z., that motion had not been ruled on by the time Mother filed her
“first request for extension of temporary custody” in February 2018.
and attending three recent medical appointments for K.Z. She stated that she was still attempting
to find appropriate housing and was also working on better managing her time with her children
so that she could attend more of K.Z.’s medical appointments. She indicated that attending K.Z.’s
medical appointments was challenging because (1) she has no driver’s license due to a prior
seizure, (2) the court denied her motion for transportation, (3) she has to take multiple buses to
attend K.Z.’s appointments, (4) she has no control over when his appointments are scheduled and
(5) she has to get K.A. to and from school.
The Guardian ad Litem’s Final Report
{¶17} On March 6, 2018, the guardian ad litem submitted his final report and
recommendation with respect to K.Z. He indicated that, according to CCDCFS, Mother’s visits
with K.Z. had been “sporadic,” she attended “only a small percentage” of K.Z.’s medical
appointments and she “really knows little to nothing about this child’s medical conditions and the
required case for them.” The guardian ad litem reported that Mother had completed inpatient drug
treatment, received mental health services and “reportedly attends meetings” but that she had failed
to obtain safe and appropriate housing for K.Z. and that “[t]his ha[d] been an issue throughout the
history of this case.” The guardian ad litem stated that he had twice attempted to visit Mother’s
home. He indicated that Mother cancelled the first visit and never called him to reschedule it.
He indicated that his second visit, on March 4, 2018, was unscheduled. He stated that “[t]hough
it appeared people may have been present[,] no one answered the door.” Although he had never
seen Mother’s home for himself, he indicated that the CCDCFS social worker had “expressed
concerns about the condition of the home” to him and that she did not feel the home would be a
safe environment for K.Z. due to the number of animals in, and lack of cleanliness of, the home.
{¶18} The guardian ad litem stated that he visited with the foster family on November 29,
2017 and that, at that time, K.Z. appeared “well cared for and happy.” He indicated that the foster
family gave him “written information with respect to [K.Z.],” including an explanation of K.Z.’s
medical conditions and care requirements and information regarding mother’s attendance at
medical appointments. The guardian ad litem noted that K.Z. requires “a significant amount of
care,” including receipt of food through a gastronomy-tube (“g-tube”) and electric pump, a special
formula that varies with each feeding, monitoring of his feeding to ensure proper nutrition and to
minimize the risk of aspiration and diarrhea, daily physical therapy and “very frequent doctor and
medical provider appointments.”
{¶19} The guardian ad litem stated that although Mother “had made some progress” on her
case plan with respect to substance abuse and mental health, questions remained. He noted that
Mother had come to court “out of it” and stated that she had not shown a “true commitment to her
child” by missing visits and most medical appointments, failing to learn how to take care of K.Z.’s
medical needs and failing to secure appropriate housing for K.Z. Based on these facts, the
guardian ad litem opined that it would be in K.Z.’s best interest to award permanent custody to the
agency.
{¶20} On April 18, 2018, Mother filed an amended motion to extend temporary custody
or, in the alternative, for legal custody pursuant to R.C. 2151.353(A)(3).
Hearing on CCDCFS’ Motion to Modify Temporary Custody to Permanent Custody
and Mother’s Motion to Extend Temporary Custody
{¶21} On April 25, 2018, the juvenile court held an evidentiary hearing on CCDCFS’
motion to modify temporary custody to permanent custody, Mother’s first request for extension of
temporary custody and Mother’s amended motion to extend temporary custody or, in the
alternative, for legal custody. 4 Four witnesses testified in support of the agency’s motion to
modify temporary custody to permanent custody: Christen Conard, a nurse practitioner at
University Hospitals Rainbow Babies and Children’s Hospital Aerodigestive Clinic (the
“aerodigestive clinic”), Sarah Weiss, a pediatric medical social worker at the aerodigestive clinic,
Whatley, the CCDCFS social worker, and K.Z.’s foster mother, B.U. K.Z.’s guardian ad litem
also testified at the hearing. At the time of the hearing, K.Z. was 19 months old.
Testimony of CCDCFS’ Witnesses
Representatives from the Aerodigestive Clinic
{¶22} Conard testified that K.Z. was referred to the aerodigestive clinic, a multi-
disciplinary clinic that specializes in assisting children with breathing, swallowing and digestive
conditions, because he was experiencing chronic vomiting and noisy breathing. She testified that
K.Z. attended his first aerodigestive clinic on August 28, 2017.5
{¶23} Conard testified that, to address K.Z.’s eating difficulties, a g-tube was inserted in
K.Z.’s abdomen and another surgical procedure, a Nissen, was performed to help prevent reflux.
She indicated that because K.Z. is at risk for aspiration, all liquids he ingests by mouth must be
thickened to a certain consistency to avoid liquid going into his windpipe. She stated that he also
requires overnight feedings to ensure he is receiving sufficient nutrition and that he regularly
attends occupational therapy (also known as feeding clinics) to strengthen his swallowing skills.
She indicated that K.Z.’s caregivers must have special training regarding the g-tube and the
4
CCDCFS’ motion for a second extension of protective supervision as to K.A. was also scheduled to be
heard. However, prior to the hearing, the parties agreed to a second extension of protective supervision. The
juvenile court, therefore, granted the motion and extended protective supervision over K.A. for an additional six
months, finding it to be in K.A.’s best interest.
5
As to when K.Z. was first seen at the aerodigestive clinic, Conard and B.U. provide differing testimony.
Although Conard testified the first clinic was held on August 28, 2017, the foster mother testified K.Z. attended his
first clinic on April 28, 2017.
procedures to follow if the g-tube comes out, training regarding how to properly thicken his
formula, training to recognize the signs of aspiration and training to work on the skills and
techniques identified during the feeding clinics.
{¶24} Conard stated that K.Z.’s foster parents were the only persons, to her knowledge,
who had been trained regarding K.Z.’s care. She indicated that K.Z.’s foster mother received g-
tube training when K.Z. was in the hospital and that his foster father received g-tube training
through University Hospitals’ Family Learning Center. She indicated that K.Z.’s foster parents
received additional instruction regarding his care at the feeding clinics and doctor’s appointments.
{¶25} Conard stated that anyone can receive g-tube training simply by calling the Family
Learning Center and scheduling an appointment. Conard testified that for Mother to become
competent to handle all of K.Z.’s daily medical care needs, it would take “[l]ike four months.”
{¶26} With respect to K.Z.’s medical appointments, Conard testified that K.Z. had attended
five aerodigestive clinics, that he has regular appointments with his gastroenterologist and that he
attends feeding clinics two or three times a month. Conard testified that she had never seen
Mother at any of the aerodigestive clinics or doctor’s appointments but had heard that Mother had
attended a feeding clinic.
{¶27} Conard indicated that K.Z. needs to be in a smoke-free and clean environment
because his equipment and g-tube site need to stay clean. She indicated that K.Z. could live
around a dog or cat but that “you’d just have to keep it nice and clean” — e.g., no exposure to pet
hair — to avoid the g-tube site from getting infected.
{¶28} Conard could not estimate how long K.Z. would remain g-tube dependent or would
continue to need special formula or thickeners. She stated that K.Z. was “doing much better”
because the foster family had “done a fabulous job with him” but that this did not mean he required
less “hands-on” care. She indicated that K.Z. had recently begun showing signs of “dumping,”
i.e., chronic diarrhea precluding food absorption, and stated that his current prognosis is
“uncertain.”
{¶29} Weiss, a pediatric medical social worker at the aerodigestive clinic, testified that she
assists families who come to the aerodigestive clinic with issues such as transportation, access to
insurance, assistance with utilities and assistance in finding affordable housing. With respect to
transportation issues, Weiss testified that if a child has Medicaid, family members can generally
receive free transportation to doctors’ appointments through the child’s insurance. She
acknowledged, however, that this would not apply to Mother because she was currently a
noncustodial parent. For noncustodial parents, Weiss indicated that there are public
transportation options and that there might be other available resources she could “look into” if
asked.
{¶30} Weiss indicated that Mother had not contacted her to request any type of assistance.
Weiss testified that she had never been given Mother’s contact information and had no way of
reaching out to Mother to see if there was anything with which she could assist Mother. Weiss
stated that usually she meets caregivers when they attend an aerodigestive clinic appointment and
establishes contact with them at that time. Because Mother had never attended an aerodigestive
clinic, Weiss had never met her.
Testimony by Foster Mother
{¶31} K.Z.’s foster mother, B.U., also testified. She indicated that K.Z. has been in her
care since he was discharged from the hospital in October 2016. She stated that she is the
primary caregiver for K.Z. and that she attends all of his medical appointments and takes care of
all of his medical needs.
{¶32} B.U. indicated that K.Z. left the hospital with an apnea monitor and a heart monitor
and that, due to his drug exposure, also had some issues with hypertonia, i.e., his muscles would
spasm and stiffen such that it was difficult to hold and console him. B.U. testified that, as K.Z.
got older, his medical conditions became more “complex.” She testified in detail regarding the
many medical conditions for which K.Z. has been treated since birth and the care required to meet
his medical needs. She indicated that K.Z.’s current medical conditions include: dysphagia (a
swallowing disorder), hypertonia (causing low muscle tone, a loss of balance and lack of
coordination), a milk protein allergy, silent aspiration (causing him to be g-tube dependent), acid
reflux and dumping syndrome. She indicated that K.Z. has also had some issues with his vision
for which he sees an ophthalmologist and has experienced some “seizure-like activities” for which
he sees a neurologist.
{¶33} B.U. testified K.Z. sees his primary medical team at the aerodigestive clinic, which
has included, at various points, a pulmonologist, a pediatric surgeon, a gastroenterologist, an ear-
nose-and-throat specialist, a speech therapist, an occupational therapist, a nutritionist and a social
worker. B.U. testified that, at the recommendation of the aerodigestive clinic team, in July 2017,
a g-tube was inserted in K.Z.’s abdomen and a Nissen was performed. At that time, K.Z. had not
been gaining enough weight, was silently aspirating and was having issues with severe acid reflux.
{¶34} B.U. stated that K.Z. was hospitalized for five days following these procedures. She
testified that she remained at the hospital with K.Z. “[t]he whole time” and that Mother was present
for the pre-op, stayed for “[m]aybe an hour” and then left to run an errand. B.U. stated that when
Mother returned, K.Z. was in recovery and Mother fell asleep while standing next to his bedside.
{¶35} B.U. testified that to learn how to properly care for K.Z.’s g-tube and to administer
overnight feeds, she and K.Z.’s foster father received training from the Family Learning Center
and that she also received “bedside training” from the nurses at the hospital. B.U. indicated that,
to her knowledge, Mother has not received this training.
{¶36} B.U. stated that for his dysphagia, K.Z. drinks thickened formula, attends a feeding
clinic twice a month and works with an occupational therapist on various food and drink
challenges, trying different types and textures of foods, bottles and formulas. As treatment for
his hypertonia, K.Z. receives physical therapy and occupational therapy once a week and B.U.
does recommended exercises and therapy with him at home.
{¶37} B.U. testified that K.Z.’s care is “pretty much * * * 24/7 a day” but that she and
K.Z.’s foster father have it “pretty much down to a science now” and that “[i]t’s a routine.” As
she described his daily care regimen:
I mean, we’re always doing his physical and occupational therapy. We’re always
kind of moving him. You know, in the morning we’re giving him his meds. He
has to have 300 milligrams — I’m sorry, ml’s of free water during the day because
we can’t — it’s not like we can take a glass of water when we want to get a drink
of water. * * * So he has an extension attached to his G-tube, so we have to make
sure he gets that, so we always have to make sure he’s getting that. So throughout
the day, he gets his meds in the morning. Then periodic diaper changes. Then
Monday it’s his appointments, because he has physical therapy, and we’re working
through his own therapy during the day, too. And then meds. He gets gas drops
as needed throughout the day, and then his occupational therapy when we’re
playing with him or when he’s playing with his foster siblings. And then his feeds
during the night. And then if we feed the bed, because that usually happens
because it’s user error, or he kicks open the med port, then we usually end up having
to give him a bath in the middle of the night. So it’s constant all the time it seems.
Some days it is, and sometimes it’s not.
{¶38} B.U. testified that K.Z. also sees an ophthalmologist every three or four months and
a neurologist every six months. B.U. testified that K.Z.’s appointments are typically scheduled
months in advance. Although she did not communicate with Mother “early on,” B.U. stated that
she now has regular contact with Mother and gives Mother a printout of K.Z.’s scheduled
appointments at Mother’s weekly visits with K.Z. B.U. stated that she does not ask for Mother’s
input regarding when to schedule K.Z.’s medical appointments.
{¶39} B.U. estimated that K.Z. has had approximately 30-35 physical therapy
appointments, 31-33 occupational therapy appointments, 19-20 feeding clinic appointments, six
ophthalmology appointments and three neurology appointments. According to B.U., Mother has
attended two feeding clinics, one ophthalmology appointment and one neurology appointment.
With respect to Mother’s attendance at the feeding clinic appointments, B.U. indicated that “[t]here
wasn’t much interaction” with Mother and that Mother fell asleep during one of the appointments.
{¶40} B.U. testified that K.Z. has a significant bond with her children, that they love him
and he is “best friends” with one of their other foster daughters.
Testimony by CCDCFS Caseworker
{¶41} Whatley has been the caseworker assigned to K.Z.’s case since he was born.
Whatley testified that Mother currently lives with family friends in a three-bedroom house with a
number of pets — seven cats, two dogs and a turtle — a strong animal odor and lots of cat hair.
Whatley stated that although the home is appropriate for K.A., it is not appropriate for K.Z., who,
due to his medical issues, requires a “clean” living environment. Whatley testified that Mother
has “no basic needs” for K.Z. in the home, e.g., no bed or clothing for K.Z. Although Mother and
K.A. each have their own bedroom, Whatley indicated that the way K.A.’s room was set up, there
was no room for a bed for K.Z.
{¶42} With respect to the referrals made for Mother, Whatley testified that when her case
was first opened, the agency referred Mother for services at her local community collaborative.
She indicated that Mother had used those services to get items for K.Z. Whatley stated that she
offered to refer Mother to the Cuyahoga Metropolitan Housing Authority (“CMHA”) for housing,
but that Mother refused the referral, stating that she “didn’t want to live in the hood.” Whatley
testified that Mother did not qualify for the only other housing referral program she had available,
which was available only “when you’re about to reunify the child, and the last thing they need to
accomplish on the case plan is just that housing” because Mother was not in a position to be
reunified with K.Z.
{¶43} Whatley testified that Mother is not employed and has no income and that she
encouraged Mother get a job so that she could secure and maintain independent housing and
support her children. Whatley stated that Mother told her in October 2017 that she was looking
for work and that one of her roommates had agreed to care for K.Z. while she worked. Whatley
indicated that Mother’s roommate had attended several of K.Z.’s appointments with Mother but
had not had any medical training related to K.Z.’s care.
{¶44} Whatley stated that when she raised the issues of employment and housing with
Mother again on April 10, 2018 — two weeks before the hearing — Mother said that she “was
waiting to see what would happen with [K.Z.]” and that she did not know if she could get a job
because she did not know whether K.Z. would require 24-hour care. With respect to housing,
Mother informed Whatley that a friend had agreed to pay her rent for four months so she could
find a new place to live. Whatley stated that she explained to Mother that to meet the housing
objective of her case plan, she not only had to find appropriate housing for K.Z. but had to show
she could maintain it and pay rent, utilities and other expenses. Whatley stated that she
encouraged Mother to keep looking for her own housing.
{¶45} With respect to mental health issues, Whatley stated that when she initially received
the case, Mother self-reported that she had been diagnosed with anxiety and depression. She
indicated that Mother completed a mental health assessment at the Hitchcock Center for Women
and was again diagnosed with anxiety and depression. Whatley indicated that although Mother
was, at one point, receiving mental health services, she was not, to her knowledge, still receiving
any mental health services at the time of the hearing. She stated that Mother had informed her
that she felt like she no longer needed to address the anxiety and depression because it was tied
closely to her substance abuse use, and she was no longer using any illegal substances.
{¶46} In February 2017, the agency stated that Mother appeared to be “well bonded” to
her children. With respect to visitation, Whatley testified that Mother regularly attends weekly
visits with K.Z. at a local library and often brings K.A. with her. With respect to the quality of
her interaction with K.Z., Whatley testified that Mother “does have some good visits,” but that
since June 2017, “her drowsiness [has] gotten worse.” She testified that “[m]ost visits, she’s
sleeping,” that on some visits she “has to constantly be redirected” and that Mother sometimes
struggles with supervising both K.A. and K.Z. Whatley indicated that Mother comes to the visits
late, is “sometimes disheveled” and “often confused” and that she, at times, “notice[s] bruises and
things on her.” Whatley indicated that, at a recent visit, Mother was repeatedly falling asleep.
She stated that she would not have let K.A. go home with her except that one of Mother’s
roommates came to pick them up. Whatley indicated that Mother’s roommates are “always
appropriate” with K.A.
{¶47} Whatley indicated that Mother also failed to meet the objectives of her case plan
with respect to K.Z.’s medical needs. She indicated that K.Z. has had 152 medical appointments
since he was born and that although Mother receives printouts from the foster mother with listings
of K.Z.’s appointments, Mother had only attended 10 of those appointments and had not competed
g-tube training. Whatley indicated that, when she asked Mother why she has not attended K.Z.’s
appointments, Mother responds that it is because she does not have transportation to the
appointments. Whatley stated that she told Mother that, as a parent, it is her responsibility to
make it to K.Z.’s medical appointments and her responsibility to “figure out” a way to get there
via “public buses, taxis, Ubers, whatever.”
{¶48} With respect to K.Z.’s alleged father, Whatley testified that she knows nothing about
him and that, based on the searches she has performed, the only address that comes up for him is
the address where Mother resides. Whatley stated that Mother informed her that she does not
have contact information for the alleged father and does not know his current whereabouts.
Whatley testified that he does not visit K.Z. and has not attended any of his medical appointments.
{¶49} Whatley stated that although she has observed the foster mother give Mother copies
of K.Z.’s medical diagnoses and update Mother regarding what is going on with K.Z., Mother is
“not knowledgeable” regarding K.Z.’s care and conditions, rarely asks questions, is “not engaged”
and falls asleep during his appointments.
{¶50} When asked why the agency was requesting permanent custody of K.Z. rather than
an extension of temporary custody, Whatley replied that it was because (1) K.Z. is a “medically
fragile” child, who “requires special care that you have to be trained on” and (2) Mother does not
know or understand K.Z.’s medical diagnoses, has failed to attend his appointments and has failed
to get involved in his treatment.
{¶51} On cross-examination, Whatley acknowledged that Mother had made significant
progress on certain aspects of her case plan, including completing a parenting class, successfully
completing an inpatient drug treatment program and demonstrating a commitment to maintaining
sobriety.
{¶52} Whatley also acknowledged that Mother had contacted Whatley and told her she was
having difficulty scheduling an appointment to get the g-tube training she needed to care for K.Z.
Whatley stated that Mother claimed that when she contacted the Family Learning Center to
schedule an appointment, she was told that the agency needed to set up the appointment for her.
Whatley testified that she told Mother that she could not set up an appointment for her because she
did not know Mother’s schedule. Whatley stated that she did not call the Family Learning Center
to follow up on the issue because what Mother said did not “make sense” and because Whatley
had previously spoken with a social worker and doctor at the aerodigestive clinic regarding what
needed to be done for Mother to schedule an appointment for g-tube training at the Family
Learning Center.
{¶53} Whatley stated that after the agency filed for permanent custody, she did not make
any further referrals to assist Mother with housing, job training or any other aspect of her case plan
but continued to encourage Mother to attend K.Z.’s medical appointments.
{¶54} Noting that multiple witnesses had raised concerns regarding Mother falling asleep,
the juvenile court judge asked Whatley about this. Whatley stated that the agency has no idea
why Mother keeps falling sleep. She testified that she raised the issue with Mother “every time
[she] observed it” and encouraged Mother to see a doctor. Whatley testified that Mother once
reported that she had had a seizure and that she was told she might have narcolepsy but later
informed Whatley that she was told she was not narcoleptic.
Evidence Introduced by Mother
{¶55} Mother called no witnesses but submitted documentation demonstrating her
completion of a parenting class in March 2017, her completion of a residential drug treatment
program at the Hitchcock Center for Women in October 2017, her attendance at more than 70 12-
step meetings from March 2017 to January 2018 and CCDCFS’ case plan, activity logs and report
of its semiannual review.
The Guardian ad Litem’s Recommendation
{¶56} K.Z.’s guardian ad litem also testified at the hearing. He indicated that he did not
update his March 6, 2018 report prior to the hearing because “there was no Court order [or] oral
or written request from any party for me to file an updated report.” He stated that he could
“elaborate some” on his final report based on the evidence presented at the hearing but indicated
that the “body of his recommendation had not changed” from that stated in his report.
{¶57} The guardian ad litem testified that he “interviewed” Mother and the foster parents
“a number of times” and interacted with the CCDCFS social worker “countless times” during his
investigation. He indicated that he did not interview K.Z.’s alleged father because no contact
information had been provided for him. He indicated that he also received medical records
relating to K.Z. from the foster parents.
{¶58} The guardian ad litem stated that he was unable to visit Mother’s home until March
22, 2018 but had “interviewed” Mother when he saw her “[a]t pretrials, at [c]ourt appearances,
what have you.” He indicated that when he was able to speak with Mother, she was “pleasant and
forthcoming” but that frequently she was “out of it,” “asleep in the hallway” at the courthouse.
Although he had once viewed Mother’s interactions with K.A., he stated that he had never viewed
any parent-to-child interactions between Mother and K.Z.
{¶59} He stated that when he arrived at Mother’s home on March 22, 2018, Mother greeted
him. Although Mother indicated that she thought the visit had been scheduled for another day,
she let him in. The guardian ad litem indicated that he stayed for approximately 30 minutes and,
during that time, observed K.A., mother’s roommates and the home. He indicated that the home
is cluttered but “fairly appropriate” and the “main issue” he had with the home was the “intense
odor * * * of animal urine,” which he presumed was in the carpet. He indicated that based on the
medical information he had received, he did not believe the animal odor was “safe or healthy” or
that Mother’s home was appropriate for K.Z. Although he had been informed that Mother was
attempting to locate another residence, he testified that he had “been hearing that for quite awhile
during the pendency of this case.” He indicated that he did not see a crib or other provisions for
an infant in the home. Based on K.Z.’s medical conditions and Mother’s “inability to provide
care at this time,” he recommended that the agency be granted permanent custody.
{¶60} Mother moved to strike the guardian ad litem’s report for failure to comply with
Juv.Loc.R. 18 and the Rules of Superintendence.
The Juvenile Court’s Rulings
{¶61} On May 21, 2018, the juvenile court (1) granted the agency’s motion for permanent
custody, terminating the parental rights of Mother and K.Z.’s alleged father and awarding
permanent custody of K.Z. to CCDCFS and (2) denied Mother’s motion to strike the guardian ad
litem’s report and Mother’s motions to extend temporary custody or, in the alternative, for legal
custody.
{¶62} The juvenile court found, by clear and convincing evidence, that K.Z. “cannot and
should not be reunified with [his] parents” and that it was in K.Z.’s best interest to grant permanent
custody to the agency. The court also found that CCDCFS had made reasonable efforts to make
it possible for the child to remain in or return to the home and to finalize the permanency plan for
K.Z.
{¶63} Mother appealed, raising the following three assignments of error for review:
Assignment of Error I: The trial court abused its discretion by denying
Appellant’s motion for a second extension of temporary custody.
Assignment of Error II: The trial court committed prejudicial error by refusing to
strike the guardian ad litem’s report and recommendation where the evidence
demonstrated that his investigation failed to meet the basis requirements of Loc.R.
18 and Rule 48 of the Rules of Superintendence.
Assignment of Error III: The termination of Appellant’s parental rights and the
award of permanent custody is against the manifest weight of the evidence.
Law and Analysis
{¶64} The right to raise one’s own child is “‘an essential and basic civil right.’” In re
N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d
46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169(1990), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (a
parent has a “‘fundamental liberty interest’ in the care, custody, and management” of his or her
child). However, this right is not absolute. It is “‘always subject to the ultimate welfare of the
child, which is the polestar or controlling principle to be observed.’” In re L.D., 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).
{¶65} Because 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, it is “an
alternative [of] last resort,” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It
is, however, “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). “‘All children have the right, if possible, to parenting from
either natural or adoptive parents which provides support, care, discipline, protection and
motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d
1090 (8th Dist.1996). Where parental rights are terminated, the goal is to create “a more stable
life for the dependent children” and to “facilitate adoption to foster permanency for children.” In
re N.B. at ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS
7860, 5 (Aug. 1, 1986).
Motion to Strike Guardian ad Litem’s Report and Recommendation
{¶66} For ease of discussion, we address Mother’s second assignment of error first. In
her second assignment of error, Mother argues that the juvenile court erred in refusing to strike the
guardian ad litem’s report and recommendation because he did not comply with Sup.R. 48(D) and
Juv.Loc.R. 18(G). Mother contends that the guardian ad litem’s investigation and report failed
to meet “the minimum standards established by the rules of court” in the following respects: (1)
the guardian ad litem failed to visit Mother’s home until one and one-half years after his
appointment; (2) the guardian ad litem never observed Mother interacting with K.Z.; (3) the
guardian ad litem kept no record of when he interviewed persons he claimed to have interviewed;
(4) the guardian ad litem did not meet with K.Z.’s medical providers; (5) instead of conducting an
independent investigation he relied on information provided by the CCDCFS caseworker and (6)
the guardian ad litem made no effort to interview the alleged father of K.Z. See Sup.R.
48(D)(13)(a), (d), (g) and 16; Juv.Loc.R. 18(G)(3).
{¶67} The role of a guardian ad litem in a permanent custody proceeding is to protect the
child’s interest, to ensure that 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. See, e.g., In re
C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14, citing R.C. 2151.281(B) and
Sup.R. 48(B)(1). This is accomplished by the guardian ad litem conducting an investigation of
the child’s situation and then making recommendations to the court as to what the guardian ad
litem believes would be in the child’s best interest. In re J.C., 4th Dist. Adams No. 07CA833,
2007-Ohio-3781, ¶ 13.
{¶68} R.C. 2151.281, Sup.R. 48 and Juv.Loc.R. 15, 17 and 18 address the role and
responsibilities of a guardian ad litem. R.C. 2151.281(I) provides that a guardian ad litem
shall perform whatever functions are necessary to protect the best interest of the
child, including, but not limited to, investigation, mediation, monitoring court
proceedings, and monitoring the services provided the child by the public children
services agency or private child placing agency that has temporary or permanent
custody of the child, and shall file any motions and other court papers that are in
the best interest of the child in accordance with rules adopted by the supreme court.
{¶69} Sup.R. 48(D) provides, in relevant part:
In order to provide the court with relevant information and an informed
recommendation regarding the child’s best interest, a guardian ad litem shall
perform, at a minimum, the responsibilities stated in this division, unless
impracticable or inadvisable to do so.
(13) A guardian ad litem shall make reasonable efforts to become informed
about the facts of the case and to contact all parties. In order to provide the court
with relevant information and an informed recommendation as to the child’s best
interest, a guardian ad litem shall, at a minimum, do the following, unless
impracticable or inadvisable because of the age of the child or the specific
circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each parent,
foster parent, guardian or physical custodian and conduct at least one
interview with the child where none of these individuals is present;
(b) Visit the child at his or her residence in accordance with any standards
established by the court in which the guardian ad litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other significant
individuals who may have relevant knowledge regarding the issues of the
case;
(e) Review pleadings and other relevant court documents in the case in
which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records pertaining
to the child and, if appropriate, to the child’s family or to other parties in
the case;
(g) Interview school personnel, medical and mental health providers, child
protective services workers and relevant court personnel and obtain copies
of relevant records;
(h) Recommend that the court order psychological evaluations, mental
health and/or substance abuse assessments, or other evaluations or tests of
the parties as the guardian ad litem deems necessary or helpful to the court;
and
(i) Perform any other investigation necessary to make an informed
recommendation regarding the best interest of the child.
***
(16) A guardian ad litem shall perform responsibilities in a prompt and
timely manner * * * [.]
{¶70} Sup.R. 48(F) further provides:
A guardian ad litem shall prepare a written final report, including recommendations
to the court, within the times set forth in this division. The report shall detail the
activities performed, hearings attended, persons interviewed, documents reviewed,
experts consulted and all other relevant information considered by the guardian ad
litem in reaching the guardian ad litem’s recommendations and in accomplishing
the duties required by statute, by court rule, and in the court’s Order of
Appointment.
{¶71} Juv.Loc.R. 18(G) also addresses the content of the guardian ad litem’s report. It
states:
Each Guardian ad Litem Report shall detail the following when disclosure is in the
best interests of the child:
(1) Activities performed;
(2) Hearings attended;
(3) Persons interviewed and dates of the interviews;
(4) Documents reviewed;
(5) Experts consulted;
(6) Summary of the child’s case;
(7) Any special needs of the child (e.g., mental health, disabilities, etc.);
(8) That the Guardian ad litem ascertained the child’s wishes or that the child lacked
sufficient maturity to express his or her wishes;
(9) Dispositional and placement options (e.g., relatives, third parties, private
placement, etc.)[;]
(10) Specific recommendations, including recommendations of disposition, and the
Guardian ad litem’s reasons for that position;
(11) All other recommendations, suggestions or concerns that the Guardian ad litem
can identify as in the child’s best interests;
(12) All other relevant information considered by the Guardian ad litem in reaching
the Guardian ad litem’s recommendations and in accomplishing the duties required
by statute, by court rule, and in the court’s Order of Appointment.
{¶72} As this court and others have recognized, “‘Sup.R. 48 provides * * * good
guidelines for the conduct of a guardian ad litem in meeting his or her responsibilities in
representing the best interest of a child in order to provide the court with relevant information and
an informed recommendation.’” In re C.O., 8th Dist. Cuyahoga Nos. 99334 and 99335,
2013-Ohio-5239, ¶ 14, quoting In re K.G., 9th Dist. Wayne No. 10CA16, 2010-Ohio-4399, ¶ 12.
However, the Rules of Superintendence are only “‘general guidelines for the conduct of the
courts’” and “‘do not create substantive rights in individuals or procedural law.’” In re C.O. at ¶
14, quoting In re K.G. at ¶ 11. As such, it has been generally held that a guardian ad litem’s
failure to comply with Sup.R. 48 is not, in and of itself, grounds for reversal of a custody
determination. See, e.g., In re C.O. at ¶ 14;
In re N.B., 8th Dist. Cuyahoga No. 105028, 2017-Ohio-1376, ¶ 26; Miller v. Miller, 4th Dist.
Athens No. 14CA6, 2014-Ohio-5127, ¶ 14-18.
{¶73} Likewise, courts are “given latitude” in following their own local rules. As such,
enforcement of such rules is generally within the sound discretion of the court. Citibank, N.A. v.
Katz, 8th Dist. Cuyahoga No. 98753, 2013-Ohio-1041, ¶ 29. “So long as a trial court’s failure to
comply with or enforce its local rules does not affect due process or other constitutional rights,
‘there is no error when, in its sound discretion, the court decides that the peculiar circumstances of
a case require deviation from its own rules.”’ Id., quoting Dodson v. Maines, 6th Dist. Sandusky
No. S-11-012, 2012-Ohio-2548, ¶ 47.
{¶74} In this case, we cannot fault the guardian ad litem for not interviewing the alleged
father. The alleged father had no involvement with K.Z. and there is no indication that anyone
had any contact information for him. Likewise, although the guardian ad litem did not include all
the specific dates he performed various tasks in his report and could not testify regarding specific
dates at the hearing, he submitted three reports — dated January 13, 2017, October 19, 2017 and
March 6, 2018 — summarizing his investigation at various stages of the proceeding and
“elaborated” on his March 6, 2018 report and recommendation during his testimony at the hearing.
See Sup.R. 48(F)(1)(d) (“A guardian ad litem shall be available to testify at the dispositional
hearing and may orally supplement the final report at the conclusion of the hearing.”); Juv.Loc.R.
18(H) (guardian ad litem “may orally supplement the final report at the conclusion of the hearing”).
{¶75} Although there is nothing in the record to indicate that the guardian ad litem
personally contacted any of K.Z.’s medical providers, he testified that he had reviewed detailed
medical records he received from the foster parents relating to K.Z. Furthermore, there does not
appear to be any dispute in this case regarding K.Z.’s medical conditions and the care required to
meet his medical needs.
{¶76} There are, however, other potential deficiencies with the guardian ad litem’s
investigation that give us pause. For example, although it appears Mother has lived at the same
location for the duration of this case, the guardian ad litem did not conduct a home visit of Mother’s
residence until March 22, 2018 — nearly a year and a half after K.Z. was placed in custody.
Likewise, although the guardian ad litem testified that he had “interviewed” Mother “a number of
times,” upon further questioning, he revealed that, until his home visit on March 22, 2018, those
“interviews” consisted of interacting with Mother in the hallways of the courthouse when she
attended pretrial conferences or other court proceedings. Further, although Mother had regular,
weekly visits with K.Z., the guardian ad litem never viewed Mother’s interactions with K.Z. and
offered no explanation as to why he failed to do so.
{¶77} In his final report dated March 6, 2018, the guardian ad litem set forth his
recommendation that it would be in the best interest of K.Z. to grant CCDCFS’ motion to modify
temporary custody to permanent custody. The guardian ad litem, therefore, made this
recommendation without conducting a full interview of Mother, before he visited her residence
and without ever personally viewing Mother’s interaction with K.Z. This could call into question
the thoroughness of the guardian ad litem’s investigation and the reliability of his recommendation.
{¶78} Although the guardian ad litem’s report and investigation may not have been as
detailed or as thorough as one might like, Mother’s counsel had the opportunity to cross-examine
the guardian ad litem and to highlight the deficiencies in his investigation and report through that
examination. Furthermore, the guardian ad litem’s report and recommendation was just one of
the factors the juvenile court considered in determining whether granting permanent custody to
CCDCFS was in the best interest of K.Z. Although a trial court is generally obliged to consider
the recommendation of a child’s guardian ad litem, it is “not bound to adopt” it. In re J.B., 8th
Dist. Cuyahoga Nos. 98566 and 98567, 2013-Ohio-1706, ¶ 152. The “ultimate decision” is for
the trial judge who “must act upon a consideration of all evidence presented.” Id., citing In re
T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 34. Based on the record before us, we
cannot say that the juvenile court abused its discretion in denying Mother’s motion to strike the
guardian ad litem’s report and recommendation. Accordingly, Mother’s second assignment of
error is overruled.
The Juvenile Court’s Decision to Grant Permanent Custody of K.Z. to CCDCFS
{¶79} Mother’s first and third assignments of error are interrelated and will be addressed
together. In her first assignment of error, Mother argues that the trial court abused its discretion
in denying her motion for a six-month extension of temporary custody. In her third assignment
of error, Mother challenges the juvenile court’s finding that granting permanent custody to
CCDCFS is in the best interest of K.Z. and contends that it is against the manifest weight of the
evidence.
Standard for Extending a Temporary Custody Order
{¶80} Under R.C. 2151.415(D)(1), the court may extend a temporary custody order for up
to six months, if it finds, by clear and convincing evidence, that the extension is in the best interest
of the child, that there has been significant progress on the case plan, and there is reasonable cause
to believe that the child will be reunified with one of the parents or otherwise permanently placed
within the period of extension.6 We review a juvenile court’s decision on a motion to extend a
temporary custody order for abuse of discretion. See, e.g., In re Da.B., 8th Dist. Cuyahoga No.
6
Because more than six months elapsed between the time CCDCFS filed its motion for permanent custody
and the hearing on the motion, CCDCFS argues that Mother’s motion should have been considered a motion for a
second extension of temporary custody under R.C. 2151.415(D)(2) rather than a motion for a first extension of
temporary custody under R.C. 2151.415(D)(1). However, regardless of whether Mother’s motion is considered a
motion for a first or second extension of temporary custody, it would not change the result here.
105886, 2018-Ohio-689, ¶ 18. A court abuses its discretion where the court’s decision is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
Standard for Terminating Parental Rights and Granting Permanent Custody
to CCDCFS
{¶81} Before a juvenile court can terminate parental rights and grant permanent custody of
a child to CCDCFS, it must satisfy the two-prong test set forth in R.C. 2151.414. First, the
juvenile court must find by clear and convincing evidence that one of the following conditions set
forth in R.C. 2151.414(B)(1)(a) through (e) exists:
(a) The child is not abandoned or orphaned, has not 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
has not 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 if, 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, 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, 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.
(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.
{¶82} Second, the juvenile court must find by clear and convincing evidence that granting
permanent custody to the agency is in the best interest of the child. R.C. 2151.414(B)(1). “Clear
and convincing evidence” is that measure or degree of proof that “produce[s] in the mind of the
trier of fact a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; In re M.S.,
2015-Ohio-1028, at ¶ 8. A juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence “if the record contains some
competent, credible evidence from which the court could have found that the essential statutory
elements for permanent custody had been established by clear and convincing evidence.” In re
A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
{¶83} On appeal, Mother does not dispute that CCDCFS established the first prong of the
two-part test for granting its motion for permanent custody, i.e., that one of the conditions set forth
in R.C. 2151.414(B)(1)(a) through (e) exists.7 She challenges only the juvenile court’s finding
that an award of permanent custody is in the best interest of K.Z.
{¶84} Accordingly, we must consider whether clear and convincing evidence supports the
juvenile court’s finding that it was in K.Z.’s best interest to award permanent custody to CCDCFS
and whether the juvenile court abused its discretion in denying Mother’s motion to extend
temporary custody.
{¶85} The best interest determination focuses on the child, not the parent. In re N.B.,
2015-Ohio-314, at ¶ 59. In determining whether permanent custody is in the best interest of the
child, the juvenile court consider 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 * * *;
7
In this case, the agency filed its motion for permanent custody under R.C. 2151.414(B)(1)(a).
(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 [R.C. 2151.414 (E)(7) to (11)] apply in
relation to the parents and child.
R.C. 2151.414(D)(1).
{¶86} The juvenile court has considerable discretion in weighing these factors. We review
a juvenile court’s determination of a child’s best interest for abuse of that discretion. In re D.A.,
8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47; see also In re J.B., 2013-Ohio-1704, at ¶
97 (“[T]he discretion that a trial court has in custody matters should be accorded the utmost respect,
given the nature of the proceeding and the impact the court’s determination will have on the lives
of the parties concerned.”). Although the juvenile court is required to consider each factor listed
in R.C. 2151.414(D)(1), no one factor is to be given greater weight than the others. In re T.H.,
8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 23, citing In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Further, only one of the factors set forth in R.C.
2151.414(D) needs to be resolved in favor of permanent custody. In re A.B., 8th Dist. Cuyahoga
No. 99836, 2013-Ohio-3818, ¶ 17; In re N.B. at ¶ 53.
{¶87} In its May 21, 2018 journal entry awarding permanent custody to CCDCFS, the
juvenile court identified each of the relevant factors it considered under R.C. 2151.414 in
determining that an award of permanent custody to the agency was in the best interest of K.Z.
The juvenile court explained its evaluation of these factors as follows:
The child cannot and should not be reunified with the child’s parents as discussed
below. * * *
The primary issue in this case is the mother’s ability to meet this child’s extensive
special and medical needs. There was ample, undisputed testimony about the
child’s extensive medical problems and care needs. The child is receiving what is
essentially round the clock care from the foster mother. The case plan for the
mother required her to find appropriate housing, to be able to meet the child’s basic
needs, and to be able to meet the child’s special needs. The Court finds that
CCDCFS has presented clear and convincing evidence that it is not in the child’s
best interest to be reunified with his mother, and that his father has abandoned him.8
Counsel for the mother is requesting an extension of temporary custody.
However, based on the history of this case as presented in the evidence, there has
not been significant progress on the case plan, and there is not reasonable cause to
believe that the [child] will be reunified with the mother or otherwise permanently
placed within the period of extension. See R.C. 2151.415(D)(1).
The mother is currently living with friends. There are four people in the home, and
three bedrooms. There are no provisions in the home for a baby. The mother
currently has no income and is not employed. The child has had 152 medical
appointments since he’s been in the custody of CCDCFS. The mother has
attended 10 of those appointments. This child has had a G-Tube since June or
July of 2017, and his caretaker must be trained in how to manage the care of the G-
Tube. In nearly a year, the mother has yet to attend training on how to manage
this G-Tube. The testimony and evidence was that the mother sleeps during visits
with the child. The GAL wrote in his report that the mother appears to be “out of
it” and that was the observation of the Court during the trial.
This case is not about the foster parents versus the biological
mother. See R.C. 2151.414(C). It
is simply and only about the mother’s
ability to safely provide for this
child’s extreme medical needs. The
Court finds that the child cannot be
reunified with the parents, and that an
extension of temporary custody is not
in the child’s best interest, that there
has not been significant progress on
8
There is no dispute that K.Z.’s alleged father abandoned K.Z.
the case plan, and that there is not
reasonable cause to believe that the
child will be reunified within the
extension. See R.C.
2151.415(D)(1).
{¶88} Competent, credible, clear and convincing evidence supports the juvenile court’s
findings. Although Mother made substantial progress on the elements of her case plan related to
her drug abuse, the evidence reflects that she did virtually nothing to address other aspects of her
case plan. In particular, she made no significant progress towards meeting K.Z.’s basic needs.
She made no meaningful progress toward securing and maintaining appropriate housing for K.Z.
or being able to meet K.Z.’s medical needs, including attending K.Z.’s medical appointments,
becoming knowledgeable about his medical conditions and becoming actively involved in his
medical care and treatment.
{¶89} Although Mother may have had difficulty attending appointments while she was in
drug treatment, the record reflects that she completed drug treatment in early October 2017.
Further, although the record reflects that Mother attended numerous 12-step meetings while she
was in drug treatment, i.e., from March to May 2017 and from August to October 2017, outside of
that time period, she attended only two 12-step meetings — one in November 2017 and one in
January 2018. However, Mother’s attendance at K.Z.’s doctor’s appointments did not increase
significantly after she completed drug treatment. As of the date of the hearing, it was undisputed
that Mother had attended only 10 out of 152 of K.Z.’s medical appointments. Mother was not
working and K.A. was in school during the day. It was undisputed that Mother received the
schedule of K.Z.’s medical appointments months in advance. These appointments were critical
to K.Z.’s growth, development and safety and, given his “uncertain” prognosis, would likely
continue for quite some time in the future. Mother failed to show that if she were to be reunited
with K.Z., she would be able to sufficiently manage her own schedule and K.A.’s schedule and
make the other arrangements necessary to transport K.Z. to his medical appointments.
{¶90} A critical component of K.Z.’s care involved the handling of his g-tube, which was
inserted in July 2017. Although Mother needed only to make an appointment at the Family
Learning Center to obtain the training she needed to care for K.Z.’s g-tube, it was undisputed that,
by April 2018, Mother still had not even made an appointment for g-tube training. Nor did Mother
take any steps to become knowledgeable regarding the other aspects of K.Z.’s care, including how
to properly thicken his formula, how to recognize the signs of aspiration, how to work on the skills
and techniques identified during the feeding clinics or how to perform the physical therapy
exercises K.Z. needed to do on a daily basis. Although Conard, the nurse practitioner from the
aerodigestive clinic, testified that Mother could become competent to handle K.Z.’s medical needs
in approximately four months, Mother showed no interest in initiating that process. The record
reflects that Mother knew little about K.Z.’s medical conditions, did not engage with K.Z.’s
medical providers or the foster mother regarding his treatment and showed no interest in becoming
more knowledgeable about his medical conditions or medical needs.
{¶91} Likewise, the record reflects that Mother made no effort to find a job to support K.Z.
and K.A. and took no meaningful steps to secure appropriate housing for K.Z. Although
CCDCFS offered her housing referral to CMHA to obtain appropriate housing, Mother refused it.
{¶92} In addition to Mother’s lack of attention to K.Z.’s medical needs and transportation
and housing issues, multiple witnesses commented on the tendency of Mother to fall asleep. This
was not simply an issue of Mother being tired and sleeping during visits with K.Z. The record
reflects that Mother was falling asleep under circumstances and in situations where one would not
expect a person to fall asleep, e.g., while standing holding a baby, while sitting on a ledge or at a
computer, while sitting in a courtroom hallway awaiting a pretrial conference — calling into
question her ability to properly care for and supervise K.Z. As the guardian ad litem described it
in his closing argument: “[M]other falls asleep all the time. It’s the mystery of the case. I would
love to have the answer. None of us do, though.” The agency’s concern regarding Mother’s
habit of falling asleep while caring for K.Z. dates back to the complaint CCDCFS filed in October
2016. Although Whatley, the agency’s social worker, testified that she raised the issue with
Mother each time she observed it, there is no indication in the record that Mother sought medical
treatment for, or was otherwise taking the steps necessary to determine the cause of, and to resolve,
this problem.
{¶93} Every parental rights termination case involves the difficult balance between
maintaining a natural parent-child relationship and protecting the best interests of a child.
Although “[f]amily unity and blood relationship are vital factors to carefully and fully consider,”
we also recognize that the “paramount consideration” is always the best interest of the child. In
re J.B., 2013-Ohio-1704, at ¶ 111. “[A] child’s best interests require permanency and a safe and
secure environment.” In re E.W., 8th Dist. Cuyahoga Nos. 100473 and 100474, 2014-Ohio-2534,
¶ 29.
{¶94} K.Z. has been in the temporary custody of CCDCFS since birth. He has never lived
with his Mother. Mother is not at a place where she could be reunited with K.Z. and there is
nothing in the record that would give the court reasonable cause to believe that K.Z. could be
reunified with Mother in six months or any other reasonable time. Indeed, although the
evidentiary hearing on the agency’s motion to modify temporary custody to permanent custody
was held more than six months after CCDCFS filed the motion, Mother made little, if any progress,
towards meeting K.Z.’s basic needs during that time period.
{¶95} On the record before us, we cannot say that the juvenile court abused its discretion
in determining that an award of permanent custody to CCDCFS was in K.Z.’s best interest and in
denying Mother’s motion to extend temporary custody. Accordingly, we overrule Mother’s first
and third assignments of error.
{¶96} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County 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.
________________________________________
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, SR., J., CONCUR