In re E.D. , 2011 Ohio 2800 ( 2011 )

[Cite as In re E.D., 2011-Ohio-2800.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96096
IN RE: E.D.
A Minor Child
[Appeal By V.D., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-09900468
BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEY FOR APPELLANT
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
William D. Mason
Cuyahoga County Prosecutor
BY: Gina S. Lowe
Assistant Prosecuting Attorney
4261 Fulton Parkway
Cleveland, Ohio 44144
GUARDIAN AD LITEM FOR CHILD
Daniel Bartos
13363 Madison Avenue
Lakewood, Ohio 44107
GUARDIAN AD LITEM FOR MOTHER
Suzanne Piccorelli
255 Falmouth Drive
Rocky River, Ohio 44116
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, V.D.,1 appeals from the judgment of the common pleas
court, juvenile division, terminating her parental rights and granting
The parties are referred to herein by their initials or title in accordance
1
with this court’s established policy regarding non-disclosure of identities in juvenile
permanent custody of her child, E.D., to appellee, the Cuyahoga County
Department of Children and Family Services (“CCDCFS”). For the following
reasons, we affirm.
{¶ 2} On January 9, 2009, CCDCFS filed a complaint alleging that E.D.
was a dependent child. In the complaint, CCDCFS gave notice of its intent
to take E.D. into custody pursuant to R.C. 2151.31(D) pending a hearing on
the merits of the complaint. An adjudicatory hearing was held on March 16,
2009, where appellant admitted that she: (1) had been diagnosed with bipolar
disorder and paranoid schizophrenia; (2) had five other children removed
from her care, four of whom were committed to the permanent custody of
CCDCFS, and one of whom was committed to the legal custody of the child’s
father; (3) had been homeless for two years preceding the filing of the
complaint; (4) was refusing to provide the name of the child’s father; and (5)
conceded that mental health professionals believed she was unable to
independently care for the child. Based on these admissions, the child was
adjudged to be dependent and was committed to the temporary custody of
CCDCFS.
{¶ 3} CCDCFS developed a case plan designed to reunite appellant
with E.D. Under the case plan, appellant was to attend to her mental health
issues, complete parenting education classes, obtain safe and appropriate
cases.
housing for the child, and demonstrate an ability to provide for the child’s
basic needs.
{¶ 4} On August 27, 2009, CCDCFS filed a motion requesting
permanent custody of the child. That motion was filed because appellant
had stopped visiting the child and had not seen the child since April 30, 2009.
Additionally, appellant was not complying with mental health
recommendations, had not taken steps toward completing parenting
education classes, and had failed to secure safe and stable housing for the
child.
{¶ 5} An evidentiary hearing on the motion for permanent custody was
held October 14, 2010. On that date, the child had been in the custody of
CCDCFS for one year, nine months, and five days.
{¶ 6} CCDCFS social worker, Matthew Goodwin, testified at trial and
described appellant’s long history of mental health problems. He also
described appellant’s history with child protective services and her inability
to successfully parent her other five children. For those reasons, and
because appellant was residing with an individual who had been indicted on
35 counts of sexually oriented crimes against a child, Goodwin stated that he
believed permanent custody was in the child’s best interest.
{¶ 7} At the conclusion of the evidentiary hearing, appellant announced
to the court that she was in agreement with the child being committed to the
permanent custody of CCDCFS. She had previously indicated to Goodwin
that she wished for E.D. to be adopted by the current foster parents. The
child’s guardian ad litem agreed and recommended to the court that
permanent custody was in the child’s best interest.
{¶ 8} Based on the evidence presented at the hearing, the trial court
granted permanent custody of the child to CCDCFS. From these findings
and order, appellant appeals, raising one assignment of error for review.
Law and Analysis
{¶ 9} In her sole assignment of error, appellant argues that the trial
court’s order granting permanent custody to CCDCFS was not based upon
sufficient clear and convincing evidence. We disagree.
Standard of Review
{¶ 10} A trial court’s authority to award permanent custody of a child to
the state arises under R.C. 2151.414. Under the statute, the court is
required to grant permanent custody of a child to the state if it determines, by
clear and convincing evidence, that: (1) the grant of permanent custody to
the agency is in the best interest of the child, utilizing, in part, the factors
enumerated in R.C. 2151.414(D); and (2) the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent, pursuant to at least one of the factors listed in R.C. 2151.414(E).
{¶ 11} Clear and convincing evidence is “that measure or degree of proof
which is more than a mere ‘preponderance of the evidence’ but not to the
extent of such certainty required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” In re Awkal (1994), 95
Ohio App.3d 309, 315, 642 N.E.2d 424, citing Lansdowne v. Beacon Journal
Pub. Co. (1987), 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979.
{¶ 12} Where clear and convincing proof is required at trial, a reviewing
court will examine the record to determine whether the trier of fact had
sufficient evidence before it to satisfy the requisite degree of proof. In re
T.S., Cuyahoga App. No. 92816, 2009-Ohio-5496, ¶24, citing State v. Schiebel
(1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. Judgments supported by
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. Id.{¶ 13} Thus, we must look to the entire record to determine whether the
trial court had sufficient evidence to clearly and convincingly find that it was
in E.D.’s best interest to place her in the permanent custody of CCDCFS and
that she could not or should not be placed with appellant within a reasonable
period of time. After a thorough review of the evidence, we conclude that the
trial court’s judgment was based on sufficient evidence.
Best Interest Determination
{¶ 14} In considering an award of permanent custody, the court must
first determine whether, by clear and convincing evidence, it is in the best
interest of the child to grant permanent custody. R.C. 2151.414(D). In
determining the best interest of the child during the permanent custody
hearing, the court must consider the factors listed in R.C. 2151.414(D), which
include the reasonable probability the child will be adopted; the interaction of
the child with parents, siblings, and foster parents; the wishes of the child;
the custodial history of the child; and the child’s need for a legally secure
permanent placement.
{¶ 15} R.C. 2151.414(D) does not require the juvenile court to find that
each best interest factor applies, only that it consider each one. In re
Shaeffer Children (1993), 85 Ohio App.3d 683, 621 N.E.2d 426. One factor
enumerated in R.C. 2151.414(D) is not given greater weight than the others.
Id. at ¶56. This court has “consistently held that only one of the factors set
forth in R.C. 2151.414(D) needs to be resolved in favor of the award of
permanent custody in order for the court to terminate parental rights.” In re
Z.T., Cuyahoga App. No. 88009, 2007-Ohio-827, ¶56; see, also, In re P.C.,
Cuyahoga App. Nos. 90540 and 90541, 2008-Ohio-3458, ¶31, citing In re C.H.,
Cuyahoga App. Nos. 82258 and 82852, 2003-Ohio-6854, ¶34.
{¶ 16} R.C. 2151.414(D)(1)(a) deals with the interaction and
interrelationship of the child with various significant individuals in the
child’s life, including parents, siblings, relatives, and foster care givers. At
the evidentiary hearing, the court accepted evidence that the child had
resided with her foster parents since she was seven days old, was attached to
her care givers, and was thriving under their supervision. Further, the
child’s guardian ad litem expressed to the court that he believed permanent
custody was in the child’s best interest and testified that the foster parents
provided the child with a loving home and had expressed their interests in
adopting her.
{¶ 17} In light of the interaction and interrelationship the foster parents
shared with E.D., coupled with the recommendation of her guardian ad litem,
the grant of permanent custody based on the child’s best interests was
supported by clear and convincing evidence under this section.
{¶ 18} Pursuant to R.C. 2151.414(D)(1)(c), the trial court is to consider
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 placement agencies for 12 or more months of a consecutive 22-month
period. The record reflects that E.D. was removed from appellant’s care on
January 9, 2009. Thereafter, a dispositional proceeding on CCDCFS’s
motion for permanent custody was held on October 14, 2010. At the time of
that hearing, the child had been in CCDCFS’s custody for one year, nine
months, and five days. Sufficient evidence was therefore presented for the
trial court to have concluded that permanent custody was in the child’s best
interest in light of the child’s custodial history under this section.
{¶ 19} R.C. 2151.414(D)(1)(d) considers the child’s need for a legally
secure placement and whether such can be achieved without a grant of
permanent custody. In this case, CCDCFS developed a case plan specifically
for appellant with the ultimate goal being reunification. However, Goodwin
testified that appellant failed to complete the goals outlined in the case plan.
As stated by the trial court, “[t]he 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.”
{¶ 20} In light of appellant’s continuous and repeated failure to remedy
the conditions causing the child to be placed outside of her home, it was not
an abuse of discretion for the trial court to have determined that the child
could not achieve a legally secure permanent placement without a grant of
permanent custody to CCDCFS.
{¶ 21} Upon our review of the record, we find that the trial court
weighed all relevant factors enumerated in R.C. 2151.414(D) and properly
concluded that permanent custody was in the best interests of the child. The
trial court’s judgment was based on clear and convincing evidence and did not
constitute an abuse of discretion.
Placement with Either Parent
{¶ 22} Next, the trial court was required to determine whether the child
could not or should not be placed with appellant within a reasonable period of
time. This analysis is guided by R.C. 2151.414(E), which sets forth 16
factors that the court may consider in its determination. It provides that if
the trial court finds by clear and convincing evidence that any of the 16
factors exists, the court must enter a finding that the child cannot or should
not be placed with either parent within a reasonable period of time. In re
P.C., ¶19.
{¶ 23} In the instant case, after considering the evidence and the report
of the child’s guardian ad litem, the trial court found by clear and convincing
evidence that the child could not and should not be placed with appellant
within a reasonable period of time pursuant to R.C. 2151.414(E)(1)-(2), (4).
{¶ 24} After careful review of the record, we find that there was ample
evidence to support the trial court’s finding. As discussed, the testimony
presented at trial established that CCDCFS developed a case plan with
appellant with the goal of reuniting her with E.D. upon successful completion
of the case plan. Under the case plan, appellant was required to comply with
mental health treatment recommendations; attend parenting education
classes; obtain safe and appropriate housing; and demonstrate an ability to
provide for the child’s basic needs. However, appellant failed to show
consistency in following treatment and medical recommendations; failed to
attend parenting education classes; and, at the time of the permanent custody
trial, appellant was residing with an individual who had been indicted on 35
counts of sexually oriented charges against a child. Ultimately, appellant
was unable to successfully comply with the standards developed in her case
plan.
{¶ 25} Further, the record indicates that appellant has had five other
children removed from her care due to her mental health issues and inability
to appropriately parent. Four of those children were committed to the
permanent custody of CCDCFS, and one was committed to the legal custody
of that child’s father. At the time of the evidentiary hearing, appellant failed
to establish that, notwithstanding her prior parental terminations, she was
capable of providing legally secure permanent placement and adequate care
for the health, welfare, and safety of E.D.
{¶ 26} Collectively, the evidence presented at the evidentiary hearing
was sufficient to support the trial court’s ruling that the child could not be
placed with appellant within a reasonable time.
{¶ 27} Finding no error in the trial court’s grant of permanent custody to
CCDCFS, appellant’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate 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.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR