In re R.A. , 2021 Ohio 4126 ( 2021 )

[Cite as In re R.A., 2021-Ohio-4126.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE R.A., ET AL. :
Minor Children : No. 110541
:
[Appeal by Mother, C.P.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 18, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-19-913346, AD-19-913347, and AD-19-913348
Appearances:
Wargo Law, L.L.C., and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Joseph C. Young and Zachary J. LaFleur,
Assistant Prosecuting Attorneys, for appellee.
ANITA LASTER MAYS, P.J.:
Appellant, C.P. (“Mother”), appeals from the trial court’s judgments1
granting the motion of the Cuyahoga County Division of Children and Family
Services (“CCDCFS” or “the agency”) to modify temporary custody to permanent
custody. After a careful review of the record and law, we affirm.
Procedural History
On October 31, 2019, CCDCFS filed a complaint alleging that the
subject children, R.A., K.R., and E.R., were abused and neglected and requesting a
disposition of temporary custody of the children. On the same date, CCDCFS filed
a motion for predispositional temporary custody of the children, which the trial
court granted.
An adjudicatory hearing was held on January 23, 2020, at which
Mother entered admissions to an amended complaint and all three children were
adjudged to be abused and neglected. The parties agreed to move immediately to
disposition and the children were committed to the agency’s temporary custody.
On September 8, 2020, CCDCFS filed a motion to modify temporary
custody to permanent custody. On February 26, 2021, trial on the permanent
custody motion was held before a magistrate. At the time of the hearing, R.A. was
five years old, K.R. was three years old, and E.R. was one year old. On April 15, 2021,
1
There are three children who are the subject of this case. Each child had their
own case, but the proceedings occurred together. The trial court issued separate
judgments relative to each child.
the magistrate issued her decision, which recommended permanent custody of the
children to CCDCFS. On May 3, 2021, the trial court issued its final judgments for
each child; the judgments terminated all parental rights and granted permanent
custody to CCDCFS.
Factual History: Trial Testimony
Two witnesses, CCDCFS social worker Lee Barbee, and a
“wraparound services” specialist from the University Settlement Collaboration,
Re’Ana Dixon, testified at trial;2 the children’s guardian ad litem (“GAL”) also gave
her recommendation on the motion for permanent custody. The following facts
were adduced.
The children lived with Mother and L.R. (“Father”),3 father of E.R.
and alleged father of K.R., in an upstairs/downstairs duplex home in Cleveland. The
home was owned by a member of Father’s family. Mother, Father, the three
children, and two of Father’s brothers lived in the upstairs portion of the home;
other members of Father’s family lived in the downstairs portion of the home. For
a period of time leading up to this case, the house was being surveilled by the police
because of suspected human trafficking and drug activity believed to be occurring in
the upstairs portion of the home.
2
Dixon explained that wraparound services collaborate with all the professionals
who are working with a family or an individual so that everyone is connected as the family
or individual work to achieve the objectives of their case plan.
3
Father is not a party to this appeal and, therefore, will only be minimally
discussed as is necessary to the resolution of Mother’s appeal.
The agency became involved with Mother and her children in
October 2019, after the police raided the home and individuals in the home (not
Mother or Father) engaged in a “shootout” with the police. The three subject
children were found in the home in the vicinity of drugs and a known sex offender.
The GAL reported that K.R., who was two years old at the time, had a beer in his
hand. The children were described as “unkempt and dirty,” and the condition of the
house was described as “deplorable and unsanitary.”
The agency’s goal for Mother was reunification with her children and
a case plan was developed for her; the plan was to address issues regarding
substance abuse, mental health, parenting, basic needs, and housing. Social worker
Barbee testified that Mother failed to make significant progress on the plan.
In regard to substance abuse, Mother was referred to services to
address her substance abuse concerns twice — first in November 2019 and then
again in March 2020; she refused services both times. Mother finally agreed to a
drug assessment in August 2020. She was referred to outpatient treatment for
alcohol abuse at that time, which she started, but was discharged after less than a
month in the program for nonparticipation. Mother did not take another
assessment until January 2021, which was more than four months after the agency
filed its motion for permanent custody and one month before the permanent
custody hearing. Between August 2020 and January 2021, Mother’s alcoholism
worsened, and she was recommended for intensive outpatient treatment. She began
attending her outpatient treatments in January 2021, but the service provider
recommended inpatient treatment because she showed up to her outpatient
treatment under the influence.
Additionally, Mother generally failed to provide drug screens to the
agency as requested. She cited transportation issues as the reason, but Dixon, the
wraparound services specialist, testified that her agency had been providing Mother
bus tickets for the express purpose of being able to make it to the services she needed
to be compliant with her case plan. In March 2020, Mother did comply with the
agency’s request for a drug screen; it was positive for cocaine and marijuana.
The agency also requested Mother to submit to random urine screens,
which she refused to do. Mother did, however, provide tests for her substance abuse
service provider. The results showed that she had six months of consecutive high
testing for alcohol; she never provided a clean screen to her substance abuse service
provider. According to social worker Barbee, Mother minimized the results of the
screens, denied she had a problem, and maintained that the positive screens were
“mistakes.” As of the time of trial, Mother failed to provide a clean screen that would
have allowed CCDCFS to establish a sobriety date. Social worker Barbee testified
that the agency generally requires six months of sobriety after completion of
treatment as a benchmark for reuniting parents with their children.
In regard to mental health services, CCDCFS included that as part of
Mother’s case plan because she had a history of post-traumatic stress disorder and
depression; thus, the agency referred Mother to a facility for a mental health
assessment. Mother refused to submit to the assessment, stating that she did not
feel as though she had any mental health issues. But social worker Barbee testified
that Mother was easily overwhelmed during visits with the children, had regular
“outbursts,” and often lost control during her interactions with CCDCFS staff. At
the time of trial, Mother had not completed any mental health services.
Parenting services were also a part of Mother’s case plan. The
testimony demonstrated that CCDCFS was concerned about Mother’s decision-
making. As mentioned, she allowed the children to be in the presence of a known
sex offender. And in regard specifically to R.A., the agency had significant concerns.
In particular, when R.A. came into the agency’s custody he had significant scarring
from an untreated throat infection; his condition ultimately required him to have
surgery. He also had 12 cavities, did not know how to properly use the restroom,
hoarded food, and demonstrated sexualized behaviors, which including him trying
to have sex with another child at his daycare. R.A. also made statements that “he
owned” children and they were “his property.”
Mother completed two parenting classes. The agency questioned if
Mother benefited from the classes, however. Because of R.A’s. severe throat
infection he had to have a tonsillectomy in July 2020. Social worker Barbee testified
that the agency was informed that the procedure was generally a 15-minute one, but
it took one and a half hours to perform on R.A. because he had such a significant
amount of infection and scarring built up in his throat and neck muscles. According
to R.A.’s doctors, a second surgery was a possibility because of the severity of the
infection and scarring.
After R.A.’s surgery, his diet was specialized so as not to cause injury
or irritation to his throat. The foster mother informed Mother about his dietary
restrictions, which included limited salt. Despite knowledge of this, Mother brought
McDonald’s to a visitation with the children and allowed R.A. to eat fries, which
caused irritation to his throat so severe the foster mother contemplated taking him
to the hospital. Mother acknowledged that she was aware of R.A.’s dietary
restrictions but stated she was bringing McDonald’s for the other children and did
not want to upset R.A. by telling him he could not have it. Further, after R.A.’s 12
cavities were filled, Mother gave him a “pocketful” of candy. These incidents
resulted in Mother being re-referred to parenting classes, which she completed.
The testimony further demonstrated that R.A. has developmental
delays and is believed to be autistic. K.R. is believed to be autistic as well. At the
time of trial, both R.A. and K.R. were receiving diagnostic and therapeutic services.
In regard to the case plan goal of addressing housing and basic needs,
social worker Barbee testified that Mother failed to complete that portion of the
plan. CCDCFS was concerned about the drug activity in the house (which included
drugs being out in the open) and the condition of the home at the time of the children
were removed. The agency referred Mother to a community collaborative to work
with to find new housing, but as of the time of trial, Mother was still living in the
same house with Father; Barbee testified that Mother was dependent on Father,
because she was not employed.
At one point, Mother did indicate to CCDCFS that there were two
family members for the agency to consider for placement of the children. However,
she changed her mind in regard to one and never provided any contact information
for either one. At the time of the permanent custody hearing, all three children were
placed in the same foster home. Barbee testified that the foster mother was “very
good” and “hands-on” with all of the children and believed that she would be willing
to be a permanent placement for all three children.
The children’s GAL gave an oral report to the court, recommending
permanent custody to CCDCFS. She credited Mother for being consistent with
visitations with the children, but based her recommendation on the following:
“[M]other has no known sobriety date, she’s not engaged in mental health. She’s
connected to [Father], [has] no source of income, [and is] still living in that same
home. [Father] may or may not be employed and he’s just started services.”
Additionally, the GAL informed the court about the progress the children were
making with their foster mother.
On this testimony, the magistrate recommended that CCDCFS’s
motion for permanent custody be granted. After conducting an independent review
of the matter, the juvenile court affirmed, approved, and adopted the magistrate’s
decision.
Assignments of Error
Mother now raises the following two assignments of error for our
review:
I. The trial court should have extended temporary custody.
II. The evidence presented to the trial court did not support, by
clear and convincing evidence, a finding that permanent
custody to CCDCFS was in the best interests of the children.
Law and Analysis
Plain Error Review: Failure to Object to Magistrate’s Decision
We initially note that Mother did not file objections to the
magistrate’s decision in accordance with Juv.R. 40(D)(3)(b). The juvenile rules
require an objecting party to (1) file written objections to a magistrate’s decision
within 14 days of the decision, (2) state with specificity and particularity all grounds
for objection, and (3) support objections to a magistrate’s factual finding with a
transcript of the evidence submitted to the magistrate or an affidavit of evidence if a
transcript is unavailable. Juv.R. 40(D)(3)(b)(i)-(iii).
If none of the parties files written objections, a trial court may adopt
the “magistrate’s decision unless it determines that there is an error of law or other
defect evident on the face of the magistrate’s decision.” Juv.R. 40(D)(4)(c).
Additionally, the juvenile rules prevent a party from assigning “as error on appeal
the court’s adoption of any factual finding or legal conclusion * * * unless the party
has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).” Juv.R.
40(D)(3)(b)(iv). This rule “embodies the long-recognized principle that the failure
to draw the trial court’s attention to possible error when the error could have been
corrected results in a waiver of the issue for purposes of appeal.” In re Etter, 134
Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist.1998). Thus, under Juv.R.
40(D)(3)(b)(iv), parties who do not properly object to a magistrate’s decision waive
all but plain error. See State ex rel. Neguse v. McIntosh, 161 Ohio St.3d 125, 2020-
Ohio-3533, 161 N.E.3d 571, ¶ 9, citing Civ.R. 53(D)(3)(b)(iv);4 Tucker v. Hines, 10th
Dist. Franklin No. 18AP-375, 2020-Ohio-1086, ¶ 6 (“party who fails to timely object
to a magistrate’s decision is limited by operation of Juv.R. 40(D)(3)(b)(iv) to claims
of plain error on appeal”); In re Z.A.P., 177 Ohio App.3d 217, 2008-Ohio-3701, 894
N.E.2d 342, ¶ 15 (4th Dist.).
Thus, we review Mother’s claimed errors under a plain-error
standard. “Plain error is not favored and is only applicable in rare cases where the
error ‘seriously affects the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial
process itself.’” In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476, ¶ 12,
quoting S.J. v. J.T., 6th Dist. Lucas No. L-11-1011, 2011-Ohio-6316, ¶ 8.
Extension of Temporary Custody
In her first assignment of error, Mother contends that the trial court
“had no justified reason to not extend temporary custody in this case.” Mother
contends that there was a two-year period for her to complete her case plan and
4
Civ.R. 53(D)(3)(b)(iv), which governs objections to a magistrate’s decision,
provides that “[e]xcept for a claim of plain error, a party shall not assign as error on appeal
the court’s adoption of any factual finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless
the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).”
despite that period, the trial court scheduled the permanent custody hearing for
eight months before the two-year deadline.
R.C. 2151.353(G) governs the expiration of temporary custody orders
and provides as follows:
Any temporary custody order issued pursuant to division (A) of this
section shall terminate one year after the earlier of the date on which
the complaint in the case was filed or the child was first placed into
shelter care, except that, upon the filing of a motion pursuant to
section 2151.415 of the Revised Code, the temporary custody order
shall continue and not terminate until the court issues a dispositional
order under that section. In resolving the motion, the court shall not
order an existing temporary custody order to continue beyond two
years after the date on which the complaint was filed or the child was
first placed into shelter care, whichever date is earlier, regardless of
whether any extensions have been previously ordered pursuant to
division (D) of section 2151.415 of the Revised Code.
(Emphasis added.)
Thus, the statutory term for a temporary custody order is one year;
the two years only applies if a motion for an extension was filed, which it was not in
this case. Even had an extension been filed, the record before us does not indicate
that it likely would have been granted. R.C. 2151.415(D)(1), governing extensions of
temporary custody, provides in pertinent part as follows:
The court may extend the temporary custody order of the child for a
period of up to six months, if it determines at the hearing, by clear and
convincing evidence, that the extension is in the best interest of the
child, there has been significant progress on the case plan of the child,
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. In determining whether to extend the temporary
custody of the child pursuant to this division, the court shall comply
with section 2151.42 of the Revised Code.
The record does not establish that there was clear and convincing
evidence that an extension would have been in the children’s best interest, that there
had been significant case plan progress, or that reunification was likely. Mother
failed to engage in mental health services; she initially failed to engage in substance
abuse services, and when she did, she showed up intoxicated to outpatient therapy,
consistently tested drug and alcohol positive, and was discharged from outpatient
therapy for lack of participation; and her housing and basic needs case plan
objectives were also not satisfied.
Mother also contends that the children wanted to be with her.
R.C. 2151.414(D)(1)(b) requires a trial court that is evaluating a children services
agency’s permanent custody motion to consider the child’s wishes “as expressed
directly by the child or through the child’s guardian ad litem, with due regard for the
maturity of the child[.]” At the time of trial the children were five-, three-, and one-
years old; they were too young to express their wishes as to custody and, therefore,
their GAL gave her opinion on their behalf, stating that she believed permanent
custody was in their best interests. Her opinion was supported by the record.
Mother further contends that the trial court was not under a statutory
deadline to complete and adjudicate the permanent custody. The trial court was
guided by statutory timeframes, however, including R.C. 2151.414(A)(2), which
provides in pertinent that:
The court shall hold the hearing scheduled pursuant to division (A)(1)
of this section not later than one hundred twenty days after the agency
files the motion for permanent custody, except that, for good cause
shown, the court may continue the hearing for a reasonable period of
time beyond the one-hundred-twenty-day deadline. The court shall
issue an order that grants, denies, or otherwise disposes of the motion
for permanent custody, and journalize the order, not later than two
hundred days after the agency files the motion.
***
The failure of the court to comply with the time periods set forth in
division (A)(2) of this section does not affect the authority of the court
to issue any order under this chapter and does not provide any basis
for attacking the jurisdiction of the court or the validity of any order
of the court.
Thus, Mother’s contention that the juvenile court had no time
requirement to complete and adjudicate the permanent custody motion is not well
taken. The court did have a time framework within which to dispose of the motion.
In light of the above, there was no error, plain or otherwise, in the trial
court proceeding on the agency’s motion for permanent custody when it did. The
first assignment of error is overruled.
Permanent Custody under R.C. 2151.414(B)
In her second assignment of error, Mother contends that the trial
court erred by determining that an award of permanent custody to CCDCFS was in
the children’s best interest.
A juvenile court applies a two-pronged test when considering a
motion for permanent custody. To grant the motion, the juvenile court first must
find that any of the factors in R.C. 2151.414(B)(1)(a)-(e) apply. Second, the court
must determine that terminating parental rights and granting permanent custody
to the agency is in the best interest of the child or children using the factors under
R.C. 2151.414(D). In re De.D., 8th Dist. Cuyahoga No. 108760, 2020-Ohio-906,
¶ 16.
“An appellate court will not reverse a juvenile court’s termination of
parental rights and award of permanent custody to an agency if the judgment is
supported by clear and convincing evidence.” In re M.J., 8th Dist. Cuyahoga
No. 100071, 2013-Ohio-5440, ¶ 24. “‘Clear and convincing evidence’ is that
quantum of evidence that instills in the trier of fact a firm belief or conviction as to
the allegations sought to be established.” In re T.S., 8th Dist. Cuyahoga No. 109957,
2021-Ohio-214, ¶ 23, quoting In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-
2409, ¶ 13. If the grant of permanent custody is supported by clear and convincing
evidence, we will not reverse that judgment. In re J.J., 8th Dist. Cuyahoga No.
108564, 2019-Ohio-4984, ¶ 30.
The Supreme Court of Ohio has explained the manifest weight
standard as follows:
“Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of
the issue rather than the other. It indicates clearly to the [factfinder]
that the party having the burden of proof will be entitled to their
[judgment], if, on weighing the evidence in their minds, they shall find
the greater amount of credible evidence sustains the issue which is to
be established before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.’”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12,
quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting
Black’s Law Dictionary 1594 (6th Ed.1990).
When conducting a manifest weight review, this court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.” Eastley at ¶ 20. “In weighing the
evidence, the court of appeals must always be mindful of the presumption in favor
of the finder of fact.” Id. at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 461 N.E.2d 1273 (1984).
In light of the above,
[t]he discretion which a trial court enjoys 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. In re Satterwhite, 8th Dist. Cuyahoga No. 77071,
2001-Ohio-4137. The knowledge a trial court gains through observing
the witnesses and the parties in a custody proceeding (i.e., observing
their demeanor, gestures and voice inflections and using these
observations in weighing the credibility of the proffered testimony)
cannot be conveyed to a reviewing court by a printed record. Id.,citing Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
In re C.T., 8th Dist. Cuyahoga No. 87159, 2006-Ohio-1944, ¶ 15.
With the above-mentioned standard in mind, we now review the two-
pronged findings made by the trial court in ruling on CCDCFS’s motion for
permanent custody.
First Prong Under R.C. 2151.414(B)
Under the first prong, the juvenile court must determine by clear and
convincing evidence that any of the following apply:
(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.
Mother concedes that the juvenile court made an appropriate finding
under R.C. 2151.414(B). According to Mother, “there is no dispute that the condition
under R.C. 2151.414(B)(1)(d) was met because the children had been in the
temporary custody of CCDCFS for 12 or more months of a consecutive 22-month
period.” That is not the finding the court made, however. Rather, the juvenile court
found under R.C. 2151.414(B)(1)(a) that the children are not abandoned or
orphaned, and have not 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. The record supports the trial court’s finding relative
to the children’s custodial history. Specifically, the children went into the agency’s
custody in October 2019, and remained in custody until the matter proceeded to trial
in February 2021. Thus, at the time of trial the children had been in agency custody
for a consecutive 16-month period and, therefore, the trial court’s finding under R.C.
2151.414(B)(1)(a) was proper.
The juvenile court further found under R.C. 2151.414(B)(1)(a), by
clear and convincing evidence, that the children could not be placed with either
parent within a reasonable time or should not be placed with either parent.
When assessing whether a 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 under R.C. 2151.414(B)(1)(a), a juvenile court must consider the factors
outlined in R.C. 2151.414(E). In re B.P., 8th Dist. Cuyahoga Nos. 107732 and 107735,
2019-Ohio-2919, ¶ 13. A juvenile court is only required to find that one of these
factors is met in order to properly find that a child cannot or should not be placed
with a parent. In re Ca.T., 8th Dist. Cuyahoga No. 108969, 2020-Ohio-579, ¶ 27,
citing In re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-
4991, ¶ 42. “Once a court determines, by clear and convincing evidence, that one of
the enumerated factors exists, the court must enter a finding that the child cannot
or should not be placed with either of his parents within a reasonable time.” In re
Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000).
In this case, the juvenile court found for each child, pursuant to
R.C. 2151.414(E)(1), that,
[f]ollowing 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.
In regard to R.A., the court found under R.C. 2151.414(E)(8) that
Mother “repeatedly withheld medical treatment or food from [R.A.] when [Mother
had] the means to provide the treatment or food.” Additionally in regard to R.A.,
under the “catchall” section of R.C. 2151.414(E)(16), the juvenile court found the
following:
The child has ongoing special medical needs, including follow-up
mouth and throat care, neurological treatment, developmental delays
and possible autism spectrum disorder. The child also has ongoing
behavioral and mental health issues, including improper hygiene,
hyper-sexual tendencies, inappropriate language and irregular food
habits. [Mother] has not participated in the treatment of the child
despite being permitted to do so and has not demonstrated the ability
to meet the child’s special needs.
Mother does not challenge the above-mentioned findings under the
first prong. Our review of the evidence supports the trial court’s application of
R.C. 2151.414(E), as will be discussed in more detail below, and its finding pursuant
to R.C. 2151.414(B)(1)(a) that the children could not be returned to Mother’s custody
within a reasonable time or should not be placed with Mother. We now turn to crux
of Mother’s issue under the second assignment of error: whether a grant of
permanent custody was in the children’s best interest?
Second Prong under R.C. 2151.414(B): Best Interest Determination
We review a juvenile court’s determination of a child’s best interest
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 implies that the court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In determining the best interest of a child at a hearing held pursuant
to R.C. 2151.414(A)(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).
A juvenile court is required to consider each relevant factor under
R.C. 2151.414(D)(1) in making a determination regarding permanent custody, but
“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.
This court has previously stated that only one of these enumerated factors needs to
be resolved in favor of the award of permanent custody. In re Moore, 8th Dist.
Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing In re
Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993). Further,
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., Slip Opinion No. 2020-Ohio-5102, ¶ 31.
Here, the juvenile court expressed that it considered the relevant
factors set forth under R.C. 2151.414(D)(1) when assessing the children’s best
interests. Upon careful review of the record, we do not find that the juvenile court
abused its discretion in determining that permanent custody was in the children’s
best interest.
R.C. 2151.414(D)(1)(a) relates to the interaction and interrelationship
of the children with various significant individuals in the children’s life, including
parents, siblings, relatives, and foster caregivers. The record demonstrates that the
children lived together in the same foster home and that the foster mother was
dedicated to the children, “hands-on,” and would consider permanent placement of
all three children should the trial court grant the agency’s motion for permanent
custody.
Under R.C. 2151.414(D)(1)(b), the juvenile court was to consider the
children’s wishes as expressed directly or through their GAL. As discussed, at the
time of trial, the children were five-, three-, and one-years old, and too young to
express their wishes in regard to permanent custody. “The juvenile court properly
considers the GAL’s recommendation on the permanent-custody motion as part of
the R.C. 2151.414(D)(1)(b) analysis where the children are too young to express their
wishes.” In re B/K Children, 1st Dist. Hamilton No. C-190681, 2020-Ohio-1095,
¶ 45. The children’s GAL here recommended permanent custody to CCDCFS.
R.C. 2151.414(D)(1)(c) is relative to the children’s custodial history,
which Mother concedes. Although Mother cites the incorrect finding regarding the
children’s custodial history, as discussed, the finding cited by the juvenile court was
supported by the record.
R.C. 2151.414(D)(1)(d) relates to the children’s need for a legally
secure placement and whether that can be achieved without a grant of permanent
custody. The trial court in this case found that the children “cannot be placed with
one of the child[ren]’s parents within a reasonable time or should not be placed with
either parent.” As mentioned, the trial court was required by statute to enter this
finding under R.C. 2151.414(E) that the children cannot or should not be placed with
either parent within a reasonable time because of the multiple factors established in
that section of the statute. In re Glenn, 139 Ohio App.3d 105 at 113, 742 N.E.2d 1210.
This evidence supports the finding that the children’s need for a legally secure
permanent placement cannot be satisfied by placement with Mother within a
reasonable time. Further, CCDCFS tried to investigate family placements for the
children, but was unsuccessful.
Under R.C. 2151.414(D)(1)(e), the juvenile court was to consider
whether any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 applied in
relation to Mother and the children. The court made findings under subsections (8)
and (16) relative to R.A. Specifically, under R.C. 2151.414(E)(8), the court found that
Mother “has repeatedly withheld medical treatment or food from [R.A.] when [she]
has the means to provide the treatment or food.” And under the “catchall” provision
of R.C. 2151.414(E)(16), the court found the following:
The child has ongoing special medical needs, including follow-up
mouth and throat care, neurological treatment, developmental delays
and possible autism spectrum disorder. The child also has ongoing
behavioral and mental health issues, including improper hygiene,
hyper-sexual tendencies, inappropriate language and irregular food
habits. [Mother] has not participated in the treatment of the child
despite being permitted to do so and has not demonstrated the ability
to meet the child’s special needs.
The above-mentioned findings were all supported by the testimony
presented at trial. Moreover, the court was guided by the recommendation of the
GAL, who spoke on behalf of the young children and recommended that it was in
the best interests of each child to grant the agency permanent custody. And, as
discussed, the testimony elicited at trial demonstrated that Mother has not fully
satisfied the objectives of her case plan and has not proven that she can provide a
permanently stable environment for her children. Accordingly, we conclude that the
juvenile court’s termination of parental rights and award of permanent custody of
the children to CCDCFS is supported by clear and convincing evidence in the record.
There was no error, plain or otherwise, in the trial court’s decision.
We recognize that the “termination of the rights of a birth parent is
an alternative of last resort.” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-
3242, ¶ 21. The purpose of the termination of parental rights statutes is to make a
more stable life for children and to facilitate adoption to foster permanency for
children. In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67. This
court does not look upon these matters lightly, and this case is certainly no
exception. But in light of the above, there was competent credible evidence
supporting the juvenile court’s determination and the court did not abuse its
discretion in finding that it was in the children’s best interest to be placed in the
permanent custody of CCDCFS.
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.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LISA B. FORBES, J., CONCUR