In re M.W. , 2011 Ohio 6444 ( 2011 )

[Cite as In re M.W., 2011-Ohio-6444.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96817
IN RE: M.W., JR.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD09902718
BEFORE: Jones, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 15, 2011
ATTORNEYS FOR APPELLANT
Anita Barthol Staley
Brian Summers
7327 Center Street
Mentor, Ohio 44060
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Michelle A. Myers
Assistant Prosecuting Attorney
C.C.D.C.F.S.
3955 Euclid Avenue, Room 313E
Cleveland, Ohio 44115
LARRY A. JONES, J.:
{¶ 1} Father-appellant appeals from the judgment of the Cuyahoga County
Juvenile Court granting the motion of the Cuyahoga County Department of Children and
Family Services (“CCDCFS” or “Agency”) for permanent custody of his son. We
affirm.
I. Procedural History and Facts
{¶ 2} In February 2009, the Agency filed a complaint alleging that M.W. and his
sister were neglected children and requesting a disposition of protective supervision to the
Agency. Appellant is the father of M.W. and this appeal relates to the grant of
permanent custody to the Agency relative to M.W. Mother has filed a separate appeal
from the trial court’s judgment relative to both children.1
{¶ 3} In May 2009, M.W. was adjudicated neglected, but Mother retained legal
custody under the protective supervision of CCDCFS. Later that same month, the
Agency filed a motion to modify protective supervision to temporary custody. A hearing
on the motion was scheduled, but prior to the hearing date, CCDCFS filed a motion for
pre-dispositional temporary custody and requested immediate removal of M.W. from the
home. The trial court held an ex-parte hearing and granted the Agency’s motion.
{¶ 4} At a hearing on the Agency’s pre-dispositional motion, at which Father was
present with counsel, Father agreed to the Agency’s motion for temporary custody and
M.W. was committed to the emergency temporary care and custody of CCDCFS. Father
filed a motion for legal custody or visitation.
{¶ 5} The parties later appeared for a hearing on the Agency’s motion to modify
protective supervision to temporary custody; Father agreed to the motion, it was granted,
and the matter was continued for further review. The court subsequently held two
dispositional review hearings at which it continued the temporary custody order.
{¶ 6} In May 2010, the Agency filed a motion to modify temporary custody to
permanent custody. Thereafter, Mother filed a motion requesting that legal custody of
1
Cuyahoga App. Nos. 96826 and 96827. We understand that this appeal is relative to M.W.
only. Nonetheless, some discussion of his sister is necessary as background for the case.
the children be granted to maternal Grandmother. In March 2011, a hearing was held on
the Agency’s motion for permanent custody and Mother’s motion for custody to be
granted to maternal Grandmother. At the hearing, both Mother and Father stipulated
that, under R.C. 2151.414(E), the children could not be placed with either of them within
a reasonable period of time or should not be placed with either of them. Father joined in
Mother’s request that custody of M.W. be granted to maternal Grandmother. The sole
issue for the court’s consideration, therefore, was what was in the best interest of the
children. The record demonstrates the following facts.
{¶ 7} CCDCFS’s first involvement with the family was in October 2008 when
Mother tested positive for PCP. Mother was pregnant with M.W., and he was born the
following month, in November 2008. M.W. and his sister resided with Mother. Mother
continued to test positive for PCP, resulting in the children being removed from her home
in June 2009.
{¶ 8} The assigned social worker testified about her concerns of an award of
permanent custody to Grandmother. Those concerns included Grandmother’s (1)
financial resources, (2) housing, (3), parental judgment, and (4) health issues. In regard
to Grandmother’s financial resources, Grandmother was not employed and the social
worker was under the impression that she received one monthly Supplemental Social
Security Income (“SSI”) check to cover expenses for herself and three of her children
who resided with her.2
2
The children were 18, 17, and 16 years of age; the 17 year old was pregnant.
{¶ 9} The social worker further testified that she had concerns about the
cleanliness of Grandmother’s home. She described the bed that M.W.’s sister would
sleep on as “not so clean,” and testified that although the downstairs portion of the home
had been remodeled, “there [were] issues with that.” According to the social worker,
Grandmother’s house was appropriate for visitation, but not appropriate for 24-hour care.
{¶ 10} The social worker also testified about her concerns relating to
Grandmother’s parenting and judgment skills. Specifically, Grandmother is mother to 12
children, and dating back to 1993 there were approximately 30 delinquency charges
against her children. Grandmother’s pregnant 17-year-old daughter had issues during the
2010-2011 school year, consisting of 15 unexcused absences, several tardies, and three
suspensions. Although none of Grandmother’s children were ever removed from her
home, CCDCFS had received 13 referrals against her. Grandmother also had ten
curfew violations for her children.
{¶ 11} Further, the social worker believed that when M.W. and his sister visited
with Grandmother, 3 Grandmother did not pay appropriate attention to the sister’s
schoolwork. This was particularly concerning to the social worker because the sister
faced significant educational challenges and at the time of the final hearing she was 11
years old and in the third grade; generally, an 11 year old would be in the fifth or sixth
grade. The sister was making great strides and the social worker was concerned about
her regressing.
Grandmother had visitation with the children on Monday evenings from 5:00 to 7:00 p.m.
3
{¶ 12} In regard to Grandmother’s health, the record demonstrates that at the time
of the final hearing she was 52 years old and had previously suffered a stroke. The social
worker testified that Grandmother had surgery in November 2010 and appeared to “often”
have medical appointments. The social worker further noted that a journal entry, in a
case in which Grandmother was a defendant for a curfew violation for one of her
children, stated that Grandmother was “quite ill and she’s unable to monitor her 16-year
old always.”
{¶ 13} The children’s guardian ad litem testified at the final hearing. The
guardian was under the same impression as the social worker that Grandmother received
one monthly SSI check to cover expenses for herself and the three children residing with
her.
{¶ 14} The guardian, like the social worker, had concerns about Grandmother’s
house. She testified that the upstairs was in “very poor condition. * * * [O]ne room had
a crib, looked like an old styled crib. I didn’t feel that was appropriate for [M.W.], he is
over two years old and shouldn’t be in a crib. And if he were in that crib, it would be
dangerous, as the crib was really small and looked to be an old style.” The guardian
described the bed for M.W.’s sister as consisting of “two old dirty mattresses and box
spring.” The guardian stated that Grandmother’s pregnant daughter slept on a mattress
on the floor.
{¶ 15} The foster mother, who had cared for M.W. and his sister for approximately
two years, testified at the final hearing. She stated that when the children first came to
live with her the sister had a parent-like relationship with M.W. The foster mother
further testified that when the sister first came to live with her at the age of nine, she was
unable to read, but had since been “coming along.” She explained the efforts she had
taken with the sister to address her deficiencies. The foster mother expressed concern
about the sister’s homework not getting done when she was visiting with Grandmother.
{¶ 16} The foster mother stated that M.W. did not have any special needs and that
he was a “[b]eautiful[,] happy baby” in her home.
{¶ 17} The foster mother testified that if custody of the children were granted to
the Agency she would seek to adopt them. She further testified that she realized the
bond the sister had with Grandmother and that she would work with Grandmother,
Mother, and Father to ensure that they had involvement in the children’s lives.
{¶ 18} Grandmother also testified. She stated that she receives three monthly SSI
checks, one for each of the three children residing with her. She further testified that
each of the three children work and that her other adult children provide her with money.
Although Grandmother had had two recent overnight hospital stays, she denied having
any health issues at the time and also denied being ill at the time of her curfew violation
case; she described her health as “perfect.”
{¶ 19} Grandmother testified as follows regarding her children’s involvement with
the juvenile justice system: “I don’t see what that had to do with me. I was the best
mother. * * * I had their back, you know, but it didn’t do no good. It went in one ear and
out the other. I said, I’m going to put it in God’s hand because ain’t nothing I can do.
They got a mind like I got a mind. They know right from wrong. It don’t make me a
bad parent.”
{¶ 20} Grandmother testified that, for the most part, one of her children would help
M.W.’s sister with her homework when she was at her house for visitation.
{¶ 21} Grandmother admitted that she failed to submit to a urine screen as
requested by the Agency, and testified that she did not do so because “that snow came and
it’s hard for me to get out there. And then a couple of court dates came up, and I had
appointments.” Grandmother also admitted that she had attempted, unsuccessfully, to
get custody of some of her other grandchildren.
{¶ 22} By all accounts, M.W.’s sister was bonded to both Grandmother and the
foster mother. M.W. was bonded with the foster mother, but did not have the same
bonding with Grandmother.
{¶ 23} On this record, the trial court determined that it was in the best interest of
the children to grant permanent custody to CCDCFS.
{¶ 24} Father raises the following assignment of error for our review:
“The trial court erred in granting Cuyahoga County Department of Children and
Family Services[’] motion for permanent custody as such decision was against the
manifest weight of the evidence and resulted in a manifest miscarriage of justice.”
II. Law and Analysis
{¶ 25} Citing R.C. 2151.412(G), Father contends that it is preferential in custody
actions that children be placed with a relative. According to Father, Grandmother was a
relative who was able to appropriately provide for M.W. and the trial court erred by not
granting her custody of him.
{¶ 26} R.C. 2151.412(G) governs case plans, and provides that “[i]n the agency’s
development of a case plan and the court’s review of the case plan, the child’s health and
safety shall be the paramount concern.” The statute then goes on to provide that, in
developing a case plan, the agency and the court should consider that if parents are not
suitable custodians for their children, extended family members are next in priority.
Courts have explicitly held that this statute applies only to case plans, not custody
determinations. In re B.D., Ross App. No. 08CA3016, 2008-Ohio-6273, ¶30; In re
Kierra D., Lucas App. No. L-03-1164, 2004-Ohio-277, fn.1; In re Harris (Nov. 2, 2000),
Cuyahoga App. No. 76631. And even then, its provisions are not mandatory. In re
Rollinson (Apr. 27, 1998), Stark App. Nos. 97 CA 00243 and 97 CA 00206; In re Hiatt
(1993), 86 Ohio App. 3d 716, 722, 621 N.E.2d 1222; In re Dixon (Nov. 29, 1991), Lucas
App. No. L-91-021.
{¶ 27} Relatives seeking custody of a child do not have the same rights as a natural
parent. In re Jaron Patterson, Hamilton App. No. C-090311, 2010-Ohio-766, ¶16. No
preference exists for family members, other than parents, in custody awards. Id.; In re
A.V., Franklin App. No. 05AP-789, 2006-Ohio-3149, ¶14; In re Dyal, Hocking App. No.
01CA11, 2001-Ohio-2383.
{¶ 28} In light of the above, the trial court was not required to give preferential
consideration to Mother and Father’s request that Grandmother be granted custody of
M.W.
{¶ 29} We now consider Father’s contention that the trial court’s judgment was not
supported by clear and convincing evidence. Before a trial court may terminate parental
rights, it must find by clear and convincing evidence that: (1) it is in the best interest of
the child to be placed in the permanent custody of the moving agency, based on an
analysis under R.C. 2151.414(D), and (2) that the child cannot be placed with either
parent, based on an analysis under R.C. 2151.414(E). We only consider the former, as
Mother and Father stipulated to the latter.
{¶ 30} In applying the manifest weight standard of review, our role is to determine
whether there is relevant, competent and credible evidence upon which a fact finder could
base its judgment. In re Laigle/King Children (Aug. 13, 2001), Stark App.
No.2001CA00145. Judgments supported by some competent, credible evidence going to
all the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. In re P.R., Cuyahoga App. No. 76909, 2002-Ohio-2029, ¶15.
{¶ 31} R.C. 2151.414(D)(1) provides as follows:
{¶ 32} “(D)(1) In determining the best interest of a child at a hearing held pursuant
to division (A) of this section or for the purposes of division (A)(4) or (5) of section
2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall
consider all relevant factors, including, but not limited to, the following:
{¶ 33} “(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;
{¶ 34} “(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;
{¶ 35} “(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, 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;
{¶ 36} “(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;
{¶ 37} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.”
{¶ 38} The court stated the following in making its determination:
{¶ 39} “The Court has considered all of the factors. It puts particular weight on
the following factors[:] the interaction and interrelationship of the children with their
parents, siblings, relatives, and foster parents. We have a little boy here who is two [and
a half] years old. He has lived with his foster mother for all but the first six months * * *
of his life, when he was with his biological mother, who he cannot be reunified with.
{¶ 40} “I did not hear any testimony regarding any kind of bond, let alone a
significant bond between [M.W.] and his maternal grandmother.
{¶ 41} “* * *
{¶ 42} “* * * basically the only parent [M.W. has] ever known is his foster mother,
and [ ] every time there’s a visit [with Grandmother] there’s a whole houseful of people
[there]. This is not like one on one kind of contact.
{¶ 43} “The Court finds that clear and convincing evidence for that factor weighs
in favor of finding that best interest equals permanent custody.”
{¶ 44} The court further found that: (1) M.W. was too young to express his wishes;
(2) there were “legitimate concerns” about Grandmother’s health; (3) there were concerns
as to whether Grandmother would be able to “adequately parent” “[g]iven that the
Cleveland Municipal Court found that she [could not] adequately supervise her 16 year
old now, because of her health * * *.”
{¶ 45} The Court additionally noted that it was “extremely bothered by the
extensive Juvenile Court and Children [and] Family Services involvement of the
Grandmother with her older children.” Thus, the court found that M.W. would be at
“such a risk of neglect educationally and otherwise.”
{¶ 46} We find the court’s findings supported by competent credible evidence.
Father contends that Grandmother demonstrated “long-term stability” because she lived in
her house for 20 years and the guardian found the home to be “appropriate.” More
accurately, the guardian testified about the poor condition of Grandmother’s house and
her concern about M.W.’s safety in the house. Similarly, the social worker expressed
concerns about Grandmother’s house and, in particular, about the cleanliness of the home.
According to the social worker, Grandmother’s house was appropriate for visitation, but
not appropriate for permanent care.
{¶ 47} In light of the above, we are not persuaded by Father’s contention that
Grandmother’s home was appropriate.
{¶ 48} Father also contends that “[t]here was no evidence presented regarding the
alleged health issues of the grandmother,” and insinuates that the court only relied on the
judgment entry from another case stating that Grandmother was ill. In addition to the
judgment entry, which was admitted into evidence, other credible competent evidence
was presented to support a finding that Grandmother was not in the best health.
Specifically, at the time of the final hearing, Grandmother was 52 years old and
previously suffered a stroke. The social worker testified that Grandmother had had
surgery in November 2010 and appeared to “often” have medical appointments.
{¶ 49} Further, although Grandmother denied having any medical problems and
described her health as “perfect,” she had recently had two overnight hospital stays. On
this record, competent, credible evidence existed to render Grandmother’s health as a
concerning factor.
{¶ 50} Father further contends that the court’s concerns about Grandmother
providing for the educational needs of M.W. were unfounded because there was
testimony that several of her children had been on the honor roll. Grandmother did
testify that some of her kids made the honor roll, but there nonetheless was evidence
presented to support the court’s concern. The testimony was mainly in regard to M.W.’s
sister, who had faced significant educational deficits early on, and who was working to
overcome them. The testimony presented was that the sister’s homework was not being
completed, or correctly completed, during her visits with Grandmother.
{¶ 51} Moreover, the record also reflects that of Grandmother’s nine children who
were no longer living with her, only three of them had attained a high school diploma or
general educational development diploma. On this record, the trial court’s concern about
Grandmother’s ability to provide educationally for M.W. was supported by competent,
credible evidence.
{¶ 52} In sum, although a trial court is required to consider each of the factors
under R.C. 2151.414(D)(1) in making a determination regarding permanent custody, this
court has noted that “[o]nly one of these factors needs to be resolved in favor of the award
of permanent custody.” In re Moore (Aug. 31, 2000), Cuyahoga App. No. 76942. The
court’s determination here was based on several factors and those findings were
supported by competent, credible evidence.
{¶ 53} Accordingly, Father’s sole assignment of error is overruled and the trial
court’s judgment is 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 be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR