In re T.Y. ( 2023 )

[Cite as In re T.Y., 2023-Ohio-317.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE T.Y. :
: No. 111997
A Minor Child :
:
[Appeal by B.Y., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 2, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD20906213
Appearances:
Michael E. Stinn, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
EILEEN T. GALLAGHER, J.:
Mother-appellant, B.Y. (“Mother”), appeals from the juvenile court’s
judgment granting permanent custody of her minor child, T.Y., to appellee,
Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the
agency”). Mother raises the following assignments of error for review:
1. The trial court’s award of permanent custody of the child to CCDCFS
is not in the best interest of the child. The child could be and should be
returned to her mother’s care within a reasonable time. The trial
court’s order granting permanent custody to CCDCFS should be
reversed.
2. The trial court’s consideration of matters that were not admitted into
evidence denied the child’s mother due process. Therefore, the trial
court’s order granting permanent custody of the child to CCDCFS
should be reversed.
After careful review of the record and relevant case law, we affirm the
juvenile court’s judgment.
I. Procedural and Factual History
Mother is the biological parent of the minor child, T.Y. (d.o.b.
03/09/2007). The child’s biological father, E.S., is deceased.
On July 22, 2020, CCDCFS filed a complaint for temporary custody,
alleging that T.Y. was dependent as defined in R.C. 2151.04(C). The complaint
stemmed from a dispute between T.Y and Mother on July 10, 2020, that resulted in
delinquency proceedings. In support of the complaint, CCDCFS alleged the
following set of particulars:
1. On July 10, 2020, the child was committed to the emergency custody
of CCDCFS by [a] magistrate. See Case No. DL-20105895.
2. The child has significant emotional and behavioral issues which
mother is unable to adequately manage, and which compromises the
safety of the child and other siblings in the home.
3. Mother is overwhelmed with the child’s behavior and is currently
unwilling to provide care for the child in the home.
4. Mother has five children, including T.Y., that were previously
adjudicated neglected due in part to educational neglect and lack of
supervision and committed to the protective supervision of CCDCFS.
See Case No. AD-19903326-30.
5. Father is deceased.
Following a hearing held on September 15, 2020, the child was
committed to the predispositional temporary custody of CCDCFS. Thereafter,
Mother entered admissions to an amended complaint1 and the court found the
allegations were proven by clear and convincing evidence. Accordingly, T.Y. was
“adjudicated to be dependent” on October 23, 2020.
On November 4, 2020, the juvenile court committed T.Y. to the
temporary custody of CCDCFS and approved a case plan for reunification. The case
plan was developed by CCDCFS to address concerns with T.Y.’s behavior and the
ongoing conflicts between Mother and T.Y. In pertinent part, the case plan required
Mother to participate in counseling services with the child and to “work with
[CCDCFS] and service providers on parenting skills.”
On May 21, 2021, CCDCFS filed a motion to extend T.Y.’s temporary
custody for a period of six months pursuant to R.C. 2151.353(G), 2151.415(A)(6),
2151.415(D)(1), and Juv.R. 19. The extension was approved by the juvenile court on
July 14, 2021.
On December 9, 2021, CCDCFS filed a motion to modify the order of
temporary custody to an order of permanent custody pursuant to R.C. 2151.413. The
1 The amended complaint removed allegation No. 3, which alleged that Mother
was overwhelmed and unwilling to care for the child.
motion was supported by the affidavit of CCDCFS social worker, Jillian Blackwell
(“Blackwell”), who averred, in pertinent part:
7. A case plan was filed with the Juvenile Court and approved which
required that [Mother] engage in services to improve her parenting
skills to be better able to manage the child’s needs and to participate in
counseling/therapy sessions with the child as recommended.
8. Despite reasonable case planning and diligent efforts by CCDCFS to
assist her in working toward reunification, Mother has failed to
successfully complete services as referred and has failed to consistently
engage in recommended services.
9. Mother has failed to maintain consistent contact/visitation with the
child.
10. The conditions that led to the child’s removal from the home have
not been sufficiently resolved and continued risks prevent reunification
of child with mother.
11. Father is deceased.
12. No relatives have been identified who are both willing and able to
provide appropriate care for the child.
On August 29, 2022, a hearing was held to address the agency’s motion
for permanent custody. At the hearing, Caprisha Sinkfield (“Sinkfield”), an
extended-services worker employed by CCDCFS, testified that she was assigned to
the child’s case in December 2021. Sinkfield outlined her familiarity with the parties
and explained the circumstances that caused the child to be removed from Mother’s
care in July 2020. According to Sinkfield, “the initial circumstances were a
parenting conflict with [T.Y.] and her mom [and] concerns that there was some
domestic violence happening between the two.” (Tr. 9.)
Once the child was placed in the temporary care of CCDCFS, a case
plan for reunification was developed to assist Mother in addressing the issues that
led to the child’s removal. Sinkfield testified that the case-plan objectives required
Mother to participate in a parenting-education program and to participate in
recommended counseling services with T.Y. Despite the agency’s efforts to assist
Mother in addressing her issues, Mother failed to complete a parenting education
course and did not successfully complete the counseling component of the case plan.
Sinkfield confirmed that Mother attempted to participate in the
required counseling with T.Y on two separate occasions. The first attempt at
counseling occurred “at the beginning of 2021,” but was discontinued because
“[Mother] did not call in” to the virtual appointments. (Tr. 15.) The second attempt
at counseling occurred after the motion for permanent custody was filed. Sinkfield
explained that the counseling sessions were again discontinued due to Mother’s
failure to appear, stating:
[I]t was kind of a repeat of no one calling in or miscommunication, so
the counseling was stopped again.
(Tr. 16.) Sinkfield further clarified that Mother possessed all of the necessary
information to contact the family counselor to resolve any technological issues she
may have encountered when attempting to access the virtual sessions.
Between February 2022 and the date of the permanent-custody
hearing, Mother and T.Y. participated in approximately three or four counseling
sessions together. Sinkfield testified that no additional progress has been made
towards the counseling component of the case plan since the last counseling session
occurred. When the agency made additional attempts to reinitiate family
counseling, T.Y. expressed that she “was not interested in doing it because * * * she
didn’t want to start counseling and mom [did] not call in, so she was kinda hesitant
to start it.” (Tr. 15-16.) Sinkfield testified that Mother also did not wish to continue
with family counseling “just with her trouble calling in or having good dates.” (Tr.
16.) Thus, while Sinkfield acknowledged that some progress had been made towards
the counseling component of the case plan, she opined that Mother and T.Y. have
not “gotten to a level where they can effectively communicate with each other.” (Tr.
17-18.)
Regarding Mother’s interactions with the child, Sinkfield testified that
Mother has frequently engaged in visitation and has had positive interactions with
T.Y. during supervised visits. (Tr. 25.) T.Y. also shares a strong bond with her
siblings and has positive interactions with them during visits at Mother’s home.
Nevertheless, when the agency began discussing the possibility of granting Mother
unsupervised overnight visits, T.Y. expressed that she was unwilling to participate
in overnight visits because she did not feel comfortable with Mother. T.Y. also
expressed to the agency that she did not wish to return to Mother’s home on a
permanent basis. Sinkfield testified that T.Y. was “pretty adamant” about her
wishes. (Tr. 25.)
Sinkfield also provided extensive testimony concerning T.Y.’s current
placement in a group home. Sinkfield stated that T.Y.’s behavior has improved and
that there have been “no concerns with her behavior other than kind of being a
teenager and talking back here and there.” (Tr. 14.) T.Y. is actively participating in
individual and group counseling, is currently seeing a psychiatrist, and is beginning
to open up and engage in the referred services.
Finally, Sinkfield testified that the agency investigated suitable
relatives for placement during the pendency of the temporary-custody order.
Sinkfield explained that the agency attempted to explore the child’s adult sister for
placement but was unable to contact her. Additionally, although the child’s paternal
grandmother was previously approved for placement, T.Y. “expressed that she did
not feel comfortable with going to legal custody of grandma.” (Tr. 20.)
Based on the foregoing, Sinkfield opined that permanent custody in
favor of the agency was in the child’s best interests. Sinkfield reiterated that Mother
did not successfully address her case-plan objectives for counseling- and parenting-
education and that the agency was concerned that the conflicts between Mother and
T.Y. would resume if the child was returned to Mother’s care.
On cross-examination, Sinkfield confirmed that Mother currently has
two minor children under her care and that the agency has no concerns with her
ability to care for these children. Regarding the family-counseling component of the
case plan, Sinkfield acknowledged that Mother’s first attempt to engage in
counseling with T.Y. was discontinued because Mother “was not calling in” and T.Y.
no longer wished to participate. (Tr. 32.) Sinkfield further acknowledged that,
according to Mother, the second attempt to engage in counseling with T.Y. was only
discontinued because Mother “was having technological issues” and could not call
into the virtual sessions. (Tr. 32.) Finally, Sinkfield testified that she did not have
“any safety concerns with the way that Mother is parenting her child.” (Tr. 36.)
At the close of trial, child’s guardian ad litem, Paul Daher, Esq. (the
“GAL”), was called as if on cross-examination by counsel for Mother. The GAL
explained that the agency became involved in this matter following a physical
altercation between Mother and T.Y. Mother initially expressed that she did not
want to let T.Y. back into her home, accordingly T.Y. was placed into a group home
in Youngstown, Ohio. The GAL reiterated the social worker’s testimony that T.Y.
has made significant emotional and behavioral progress while under the agency’s
care. The GAL explained that T.Y. is doing well in school, is participating in
extracurricular activities, is taking her medication, and is engaged in counseling.
Despite T.Y.’s individual progress, however, the GAL opined that the underlying
issues between Mother and T.Y. have not been resolved and, therefore, he did not
feel comfortable returning the child to Mother’s care. The GAL explained his
position as follows:
It’s just, there hasn’t been enough consistency where a counselor says,
hey, this is a good idea, and it’s just unfortunate, but I think [T.Y.] will
continue to have contact with her mother and her siblings. * * * And I
would encourage it even though there is permanent custody, but I
would encourage it.
(Tr. 43.)
In a journal entry dated August 31, 2022, the juvenile court granted
the agency’s motion for permanent custody. The juvenile court found, by clear and
convincing evidence, that the child has been in the temporary custody of a public-
services agency or private child-placing agency for 12 or more months of a
consecutive 22-month period. The court further concluded that it is in the child’s
best interests to be place in the permanent custody of CCDCFS. In support of its
best interests determination, the juvenile court made alternative findings pursuant
to R.C. 2151.414(D)(1) and (D)(2).
Mother now appeals from the juvenile court’s judgment.
II. Law and Analysis
A. Standard of Review
In the first assignment of error, Mother argues the juvenile court erred
and abused its discretion in finding that clear and convincing evidence supported
the decision to terminate her parental rights and grant permanent custody of the
child to CCDCFS.
We take our responsibility in reviewing cases involving the
termination of parental rights and the award of permanent custody very seriously.
A parent has a “‘fundamental liberty interest’ in the care, custody and management”
of his or her child, 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), and 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). 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).
Because the termination of parental rights is “‘the family law
equivalent of the death penalty in a criminal case,’” it is “an alternative [of] last
resort.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In
re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14; In 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 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).
B. Permanent Custody Standard
R.C. 2151.414 provides a two-prong analysis to be applied by a juvenile
court in adjudicating a motion for permanent custody. In re S.C., 2018-Ohio-2523,
115 N.E.3d 813, ¶ 20 (8th Dist.), citing R.C. 2151.414(B). This first prong of this
statute authorizes the juvenile court to grant permanent custody of a child to the
public agency if, after a hearing, the court determines, by clear and convincing
evidence, that any of the following factors apply: (a) the child is not abandoned or
orphaned, but the child cannot be placed with either parent 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 12 or more
months of a consecutive 22-month period; or (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. R.C. 2151.414(B)(1)(a)-(e).
In accordance with the second prong of R.C. 2151.414, when any one
of the above factors exists, the juvenile court must then analyze whether, by clear
and convincing evidence, it is in the best interest of the child to grant permanent
custody to the agency pursuant to R.C. 2151.414(D).
“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 G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-
1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
“‘Clear and convincing evidence’ is evidence that ‘will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.’” In re T.B., 8th Dist. Cuyahoga No. 99931, 2014-Ohio-2051, ¶ 28,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
C. Whether T.Y. Has Been in the Agency’s Temporary Custody
for 12 or More Months of a Consecutive 22-Month Period
With respect to the first prong of the permanent-custody analysis, we
find competent, credible evidence supports the juvenile court’s finding pursuant to
R.C. 2151.414(B)(1)(d) that T.Y. has been in an agency’s temporary custody for 12 or
more months of a consecutive 22-month period.
For purposes of calculating time under subsection (d), R.C.
2151.413(D)(1) provides that “a child shall be considered to have entered the
temporary custody of an agency on the earlier of the date the child is adjudicated
pursuant to section 2151.28 of the Revised Code or the date that is sixty days after
the removal of the child from home.” In this case, T.Y. was initially removed from
her Mother’s care on July 10, 2020. She remained in the agency’s emergency
custody until she was adjudicated dependent on October 23, 2020, and committed
to the temporary custody of the agency on November 4, 2020. Applying either date
contemplated under R.C. 2151.413(D)(1), the record confirms that T.Y. had been in
the temporary care of the agency for 12 or more months of a consecutive 22-month
period at the time the motion for permanent custody was filed on December 9, 2021.
Because the time requirements under R.C. 2151.414(B)(1)(d) were satisfied, it was
unnecessary for the court to determine whether any additional factor under R.C.
2151.414(B)(1) was applicable to the circumstances presented in this matter. See In
re M.G., 8th Dist. Cuyahoga No. 111144, 2022-Ohio-1077, ¶ 29, citing In re L.W., 8th
Dist. Cuyahoga No. 107648, 2019-Ohio-1344, ¶ 15, citing In re C.W., 104 Ohio St.3d
163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21.
D. Best Interests of the Child
Turning to the second prong of the permanent-custody analysis, we
recognize “[t]he discretion that the juvenile court enjoys in [deciding] whether an
order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
[decision] will have on the lives of the parties concerned.” In re Awkal, 95 Ohio
App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). Thus, we review a juvenile court’s
determination of a child’s best interests under R.C. 2151.414(D) for abuse of
discretion. In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47.
An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
Such an abuse “‘“implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.”’” State v. Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135,
quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983),
quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). This court
has held that an abuse of discretion may be found where a trial court “applies the
wrong legal standard, misapplies the correct legal standard, or relies on clearly
erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-
1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When applying the abuse-of-discretion
standard, a reviewing court may not substitute its judgment for that of the trial
court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 (8th Dist.).
“In determining the best interest of a child, a juvenile court ‘may apply
one of two different tests.’” In re S.C., 10th Dist. Franklin No. 21AP-203, 2022-Ohio-
356, ¶ 38, quoting In re J.P., 10th Dist. Franklin No. 18AP-834, 2019-Ohio-1619,
¶ 39. “‘Under R.C. 2151.414(D)(1), the juvenile court weighs multiple factors * * * to
decide whether granting an agency permanent custody of a child is in that child’s
best interest.’” Id., quoting In re J.P. at ¶ 39. “By contrast, ‘under R.C.
2151.414(D)(2), if the juvenile court makes [each of] the four enumerated findings,
permanent custody is per se in the child’s best interest and the court “shall” commit
the child to the permanent custody of the agency.’” Id., quoting In re J.P. at ¶ 39.
“These two provisions ‘are alternative means for reaching the best-interest
determination.’” Id., quoting In re J.P. at ¶ 40.
In determining the best interests of a child pursuant to R.C.
2151.414(D)(1), the juvenile court must consider all relevant factors, including, but
not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D)(1).
Although a juvenile court is required to consider each relevant factor
under R.C. 2151.414(D)(1), “there is not one element that is given greater weight
than the others pursuant to the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-
Ohio-5513, 857 N.E.2d 532, ¶ 56. Moreover, the Ohio Supreme Court has clarified
that R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss each
of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). “Consideration is
all the statute requires.” In re A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, 184
N.E.3d 1, ¶ 31.
In turn, R.C. 2151.414(D)(2) provides as follows:
If all of the following apply, permanent custody is in the best interest of
the child, and the court shall commit the child to the permanent
custody of a public children services agency or private child placing
agency:
(a) The court determines by clear and convincing evidence that one or
more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or longer,
and no longer qualifies for temporary custody pursuant to division (D)
of section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned permanent
living arrangement pursuant to division (A)(5) of section 2151.353 of
the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody of
the child.
Significantly, if the factors enumerated under R.C. 2151.414(D)(2) are
applicable, permanent custody is per se in the child’s best interest and the juvenile
court is required to commit the child to the permanent custody of the agency. In re
G.A., 8th Dist. Cuyahoga No. 108932, 2020-Ohio-2949, ¶ 61, citing In re J.R., 10th
Dist. Franklin No. 17AP-698, 2018-Ohio-1474, ¶ 41.
As previously stated, the juvenile court made alternative findings
under R.C. 2151.414(D)(1) and (D)(2) in determining that an award of permanent
custody to the agency was in T.Y.’s best interest. Under such circumstances, this
court has held that it is unnecessary to determine if the court correctly applied the
R.C. 2151.414(D)(1) factors because “[a] finding under section (D)(2) of R.C.
2151.414 mandates that the trial court find it is in a child’s best interest to be placed
in the agency’s permanent custody.” In re A.S., 8th Dist. Cuyahoga Nos. 110422 and
110472, 2021-Ohio-3829, ¶ 42, citing In re G.A. at ¶ 59. Accordingly, our review
focuses on the court’s findings under R.C. 2151.414(D)(2).
In this case, the juvenile court made the following findings in support
of its determination that, pursuant to R.C. 2151.414(D)(2), permanent custody was
in T.Y.’s best interests:
There is evidence that one or more of the factors in division (E) of this
section exist and the child cannot be placed with one of the child’s
parents within a reasonable time or should not be placed with either
parent[;]
***
The child has been in the custody of the agency for two years, and the
court cannot legally grant any further extensions of temporary custody.
She does not qualify for a planned permanent living arrangement, and
no one has filed for or been identified in a written motion for legal
custody. The court finds the agency has made intensive efforts to locate
relatives pursuant to R.C. 2151.416. The only options before this court
are reunification or permanent custody.
For the reasons that follow, we find there is competent, credible
evidence in the record to support the juvenile court’s reliance on the factors set forth
under R.C. 2151.414(D)(2) and its conclusion that permanent custody to the agency
is in child’s best interests.
To ascertain whether R.C. 2151.414(D)(2)(a) applies, we must look to
R.C. 2151.414(E) because determining “that a child cannot be placed with the
parents within a reasonable time or should not be placed with them, the court must
find, by clear and convincing evidence, that at least one of the factors in R.C.
2151.414(E)(1)-(16) is present.” In re G.A., 8th Dist. Cuyahoga No. 108932, 2020-
Ohio-2949 at ¶ 62, citing In re S.C., 8th Dist. Cuyahoga No. 108036, 2019-Ohio-
3664, citing In re S.W., 11th Dist. Ashtabula No. 2017-A-0089, 2018-Ohio-1672.
In this case, the juvenile court included findings under R.C.
2151.414(E)(1), (4), and (16), stating as follows:
(E)(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by
the agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home.
(E)(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child.
(E)(16) Other relevant factors: In this case are the circumstances of
[T.Y.’s] removal, the wishes of the child, the in camera interview, the
child’s progress in treatment, and the potential risks of disruptions if a
reunification does not work out.
The court further explained its reliance on these factors as follows:
At 13 years of age, the child was charged with domestic violence and the
mother would not allow the child to return home. The child was placed
in the custody of CCDCFS. The child has been in the agency’s custody
for over two years. The case plan required the mother to complete
parenting [classes] and to participate in family counseling. She has not
done either of these things. The testimony of the social worker and the
child’s GAL established that the child was hurt by the mother’s failure
to participate in counseling. Over the course of the last six months, the
child has been doing very well in her placement. She has a 3.0 grade
point average, is using the skills she learned in therapy, and is working
on being a positive leader in her placement. Meanwhile, the issues that
led to the child’s removal remain unaddressed. The court is concerned
that if the child is reunified [with Mother] and those issues resurface,
the child will be blamed for the removal, and the child will bear the
brunt of the emotional fallout from any future disruptions. She has
been diagnosed with depression and PTSD and has been working on
her coping strategies for over two years.
The issue before the court is not whether 15-year old T.Y. will have a
relationship with her biological family as she is clearly capable of
reaching out to them. The issue before the court is her legal status with
the agency, and whether she will be able to continue to grow into a
healthy adulthood in a safe way that gives her hope and agency.
In support of the foregoing findings, the court relied substantially on
the testimony of social worker Sinkfield. In pertinent part, Sinkfield testified that
Mother failed to successfully complete the requirements of her case plan and,
therefore, failed to remedy the significant issues that caused T.Y. to be removed from
her care. Mother took no actions to complete the necessary parenting-education
courses and failed to consistently engage in family counseling to address the issues
that predominated the conflicts between her and her child. On appeal, Mother
suggests that she was willing to continue counseling but was prevented from doing
so based on the agency’s deference to the wishes of T.Y. Mother’s position, however,
ignores the legitimacy of T.Y.’s emotional reaction to Mother’s failure to appear at
counseling, and further attempts to diminish her own failures to resolve the alleged
technological issues that allegedly caused her to miss sessions. Mother’s position
further conflicts with Sinkfield’s testimony that Mother informed the agency that
she no longer wished to continue with family counseling because of the technological
issues and scheduling conflicts. (Tr. 16.) Similarly, when questioned by the court,
Sinkfield reiterated that the parties’ failure to complete family counseling in this case
“was not because of the child’s actions,” but “was because of the parent’s actions.”
(Tr. 38.)
The record does demonstrate that Mother routinely visited and
communicated with T.Y. when able to do so. Sinkfield acknowledged that Mother
and T.Y. have “interact[ed] pretty well” during visits, and that “Mother and [T.Y.]
speak more often than they did prior” to T.Y.’s removal. (Tr. 17, 25.) Nevertheless,
Sinkfield opined that permanent custody was in the child’s best interests based on
Mother’s unwillingness to significantly address or otherwise rectify the issues that
caused disputes between Mother and T.Y. in the past. Because Mother failed to
demonstrate a willingness to comply with her case plan, Sinkfield testified that
Mother and T.Y. “have [not] gotten to a level where they can effectively
communicate with each other.” (Tr. 17-18.) Thus, the agency was concerned that
the issues that led to T.Y.’s removal would resume if she were to be returned to
Mother’s care. T.Y. shared these concerns and repeatedly expressed that she did not
wish to return home.
In contrast to Mother’s unwillingness to comply with her case-plan
objectives, the record reflects that T.Y. has excelled in her current placement and
has successfully engaged in the services contemplated for her in the case plan. T.Y.
has improved in school, has consistently taken prescribed medication, and has
actively participated in individual and group counseling. While T.Y.’s personal
achievements are commendable, they do not relieve Mother of her obligation to
accept personal accountability and satisfactorily address the conditions that cause
T.Y. to be removed from her care.
Viewing this evidence in totality, we find the record clearly and
convincingly supports the juvenile court’s findings under R.C. 2151.414(D)(2)(a) and
(E)(1), (4), and (16).
We likewise find the evidence supports the juvenile court’s findings
pursuant to R.C. 2151.414(D)(2)(b), (c), and (d). As stated, T.Y. was removed from
her Mother’s home in July 2020, and remained in the agency’s custody throughout
the pendency of these proceedings. Accordingly, as of the date of the permanent-
custody hearing, T.Y. had been in the agency’s custody for two years or longer and
no longer qualified for an extension of temporary custody. In addition, T.Y. did not
meet the requirements for a planned permanent-living arrangement (to do so, a
child must be at least 16 years old) and the agency was unable to identify any
relatives who could take legal custody of her.
Based on the foregoing, we cannot say that the juvenile court acted
unreasonably, arbitrarily, or unconscionably in determining that it was in T.Y.’s best
interest to grant permanent custody to the agency pursuant to R.C. 2151.414(D)(2).
Accordingly, we find, the juvenile court’s award of permanent custody to CCDCFS is
supported by clear and convincing evidence in the record and is not against the
manifest weight of the evidence.
The first assignment of error is overruled.
E. Due Process Considerations
In the second assignment of error, Mother argues the juvenile court
committed reversible error by considering matters that were not admitted into
evidence at the time of the permanent-custody trial. Specifically, Mother contends
that the juvenile court violated her due-process rights by citing facts contained in
the GAL’s written report and information gathered during the child’s in camera
interview. For instance, Mother asserts that it was inappropriate for the juvenile
court to reference T.Y.’s 3.0 grade average because this information was only
contained in the GAL’s written report.
It is well settled that “in permanent custody proceedings, parents
must be afforded due process before their rights can be terminated.” In re Hoffman,
97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, at ¶ 15. “Due process requires
both notice and an opportunity to be heard.” O’Malley v. O’Malley, 8th Dist.
Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 16, citing In re Thompkins, 115 Ohio St.3d
409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 13.
“An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present
their objections.”
Thompkins at ¶ 13, quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
After careful consideration, we find no merit to Mother’s due-process
argument. In this case, the record contains ample testimony concerning T.Y.’s
wishes, her improvements in school, and the recommendations of the GAL. These
issues were thoroughly discussed during the permanent-custody hearing and
counsel for Mother was provided the ample opportunity to further explore these
issues during cross-examination. And, in fact, these issues were the substance of
counsel’s cross-examination of Sinkfield and the child’s GAL. Under these
circumstances, we are unable to conclude that the juvenile court violated Mother’s
due-process rights by referencing information that was cumulative to the evidence
adduced at the permanent-custody hearing.
The second 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.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR