In re B.H. ( 2018 )

[Cite as In re B.H., 2018-Ohio-5176.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106656
IN RE: B.H.
[Appeal by L.H., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 16900331
BEFORE: McCormack, P.J., Laster Mays, J., and Keough, J.
RELEASED AND JOURNALIZED: December 20, 2018
ATTORNEY FOR APPELLANT
Laura Wellen
Thrasher Dinsmore & Dolan
100 7th Avenue, Suite 150
Chardon, OH 44024
ATTORNEYS FOR APPELLEE
For CCDCFS
Michael C. O’Malley
Cuyahoga County Prosecutor
Michelle A. Myers
Assistant County Prosecutor
3955 Euclid Ave., Room 313-E
Cleveland, OH 44115
For G.W.
G.W., pro se
7210 East Ridge Drive
Hyattsville, MD 20785
For B.H.
Pamela A. Hawkins
P.O. Box 43101
Richmond Heights, OH 44143
ALSO LISTED:
Guardian Ad Litem for Child
Jonathan Z. Wilbur
13940 Cedar Rd., Ste. #246
Cleveland Heights, OH 44118
Guardian Ad Litem for Mother
Tyrone C. Fazio
1360 East 9th Street
The IMG Center, Suite 910
Cleveland, OH 44114
TIM McCORMACK, P.J.:
{¶1} Appellant L.H. (“Mother”) appeals from a juvenile court judgment ordering his son,
B.H., to be placed in a planned permanent living arrangement. For the reasons that follow, we
affirm the juvenile court’s judgment.
Procedural and Substantive History
{¶2} On January 7, 2016, Mother took her son, B.H., then 15 years old (D.O.B.
3/23/2001), to the Cleveland Clinic to be treated for eczema. At the time, B.H.’s eczema was
severe enough that it required overnight admission and body wraps. At some point during the
course of this visit, Mother made inflammatory comments to Clinic staff and behaved erratically.
Police were called, and Mother was ultimately arrested on an outstanding warrant and
incarcerated. When B.H. was ready to be released and did not have a guardian to whom he
could be released, Clinic officials contacted the Cuyahoga County Department of Children and
Family Services (“CCDCFS”). B.H. was placed in the emergency custody of the agency upon
his release on January 9.
{¶3} On January 11, 2016, the agency filed a complaint alleging that B.H. was
dependent. Upon Mother’s release from jail approximately two months later, she engaged in a
supervised visit with B.H.
{¶4} The agency developed a case plan. One concern identified in the case plan was
Mother’s erratic behavior and history of displaying paranoia and emotional instability. The case
plan instructed Mother to undergo a psychiatric evaluation to determine if she had mental health
issues that needed to be addressed.
{¶5} On or about March 29, 2016, B.H. left his foster home placement and could not be
located. Following a hearing on March 30, 2016, B.H. was adjudicated dependent. Following
a hearing on April 1, 2016, the court committed B.H. to the temporary custody of the agency. In
the corresponding journal entry, the court stated that Mother had stated she would not comply
with case plan services, including undergoing a mental health assessment. The court also noted
that B.H. was “AWOL” from his foster placement.
{¶6} The agency eventually learned that B.H. was with Mother at her house. On May
5, 2016, B.H.’s guardian ad litem (“GAL”) filed a motion for the court to conduct an emergency
in-camera interview of B.H. The court granted this motion and ordered Mother to appear in
court the next day and produce B.H. Mother failed to appear on May 6, and the court issued a
warrant for her arrest. Mother was subsequently arrested. On May 26, 2016, B.H. was
removed from her home. He was placed in Belmont Pines, a residential behavioral health
hospital because, according to a case plan assessment, his immediate needs were too great to be
placed in a less restrictive setting and he required stabilization. Specifically, officials were
concerned that B.H. was a danger to himself and others.
{¶7} On May 27, 2016, Mother appeared in court for a contempt hearing. The court
ordered that Mother be released and that Mother and B.H. have supervised phone calls three
times a week. The court continued the hearing on the issue of Mother’s contempt of court. A
subsequent hearing was held on June 21, 2016. Mother did not attend the hearing, but she did
contact the court. Following this hearing, the court ordered that there be no contact between
Mother and B.H. over the objections of Mother’s counsel.
{¶8} A Semi-Annual Review of the case plan was filed on July 8, 2016. As of this
time, Mother had made no progress on the case plan. On July 26, 2016, B.H. was “stepped
down” from his placement at Belmont Pines and placed in a residential foster home. Six days
later, after threatening his foster family, B.H. was removed from the foster family placement and
returned to Belmont Pines.
{¶9} Mother underwent a partial psychological assessment with a court clinical
psychologist on August 1, 2016. She completed the interview portion of the assessment but
refused to undergo any further evaluation. On October 12, 2016, an amended case plan was
filed, noting that efforts to stabilize B.H. had been unsuccessful and further evaluation and
treatment were needed. Mother’s case plan objectives remained the same.
{¶10} On November 28, 2016, the agency filed a motion to modify temporary custody to
permanent custody. The court held a pretrial hearing on December 14, 2016, at which point it
lifted the no contact order as to telephone contact between Mother and B.H.
{¶11} In a Semi-Annual Review filed on January 10, 2017, the social worker noted that
while Mother completed the interview portion of her psychiatric evaluation at some point during
the summer of 2016, she had yet to complete the written portion of the evaluation or to engage in
other recommended services. The Semi-Annual Review also noted that B.H. was diagnosed
with major depressive disorder with psychotic features and was being actively evaluated to rule
out a diagnosis of schizoaffective disorder.
{¶12} On April 4, 2017, counsel for B.H. filed a motion requesting the court to order that
he be transported from Belmont Pines to his pretrial hearing on April 10, 2017, and all future
hearings in this case. Also on April 4, 2017, Mother filed a motion for legal custody to herself.
On April 7, 2017, the GAL filed a report and written recommendation on the issue of
transporting B.H. for the pretrial hearing. In his report, the GAL stated that the staff at Belmont
Pines had expressed concern about the impact that transporting B.H. would have on his treatment
progress. B.H. had been reacting poorly to telephone contact with Mother, and this had
provoked a period of regression in which B.H. was not taking his medication as instructed and
not actively participating in therapy. The report also noted concerns that B.H. would go
“AWOL” based on statements he had made. Ultimately, the GAL recommended that B.H. not
be transported to his pretrial hearing.
{¶13} Mother subsequently filed a series of motions, requesting that the assigned social
worker be removed from the case, requesting an earlier court date, requesting the assigned
magistrate be removed from the case, and requesting that B.H. be transported from his residential
facility in Youngstown to Cleveland for pretrial hearings. The case was assigned to a new
judge, and the other motions were denied.
{¶14} On June 21, 2017, the GAL filed a report and recommendations as to the
appropriateness of communications between B.H. and Mother. The GAL noted that Mother had
failed to comply with the agency and had repeatedly encouraged B.H. not to take his medications.
According to staff at Belmont Pines, B.H. had been improving. The GAL recommended that
B.H. and Mother be permitted to have phone calls every 10 days and that Mother refrain from
discussing the case during these phone calls.
{¶15} On June 7, 2017, the court held a pretrial hearing in which B.H.’s attorney and
GAL made oral motions to continue the trial on the grounds that it was in B.H.’s best interest,
given his progress and concerns that the stress of trial would disrupt this progress. The court
granted the motion to continue the trial over the objections of the agency.
{¶16} In an Semi-Annual Review filed on June 22, 2017, the social worker noted that
B.H. has no specific mental health diagnosis but continues to struggle with anxiety, aggression,
and thought disorders. B.H. continued to progress at Belmont Pines. As a result of his
progress, staff at Belmont Pines issued a step-down letter on July 26, 2017, noting that B.H. had
displayed an increase in mood stability and had not made recent attempts to become “AWOL.”
Due to his progress, it was recommended that B.H. be moved to a less restrictive setting and
continue in individual therapy and medication.
{¶17} On September 5, 2017, the GAL filed an updated report and recommendations.
The GAL stated that B.H.’s release from Belmont Pines was imminent. Accordingly, the
agency was actively looking for an appropriate placement for B.H. The report noted that
Mother is “undoubtedly a loving and caring mother” to B.H. The GAL also noted that Mother’s
ongoing noncompliance with the case plan, which can likely be attributed to serious underlying
mental health issues, had negatively impacted her relationship with B.H. According to a former
therapist of B.H. at Belmont Pines, Mother is a diagnosed paranoid schizophrenic. At various
points throughout this case, Mother disputed this diagnosis. The GAL pointed out that even
without a formal diagnosis in the record at this point, Mother’s behavior and statements
throughout the case are illustrative of her delusional thinking and paranoia. Mother made
repeated statements, both to B.H. and to the court, to the effect that B.H. had been “stolen” and
that various individuals involved in the case — including the magistrate, the social worker, and
police officers — were “pigs” who were seeking to abuse and harm B.H. Mother allegedly
exhibited similar behavior toward B.H.’s foster parents, the social worker involved in the case,
and staff at the Clinic at the outset of this case. With respect to this case, the GAL’s primary
concern regarding Mother’s behavior is that it has resulted in noncompliance with her own case
plan and a lack of cooperation with B.H.’s case plan. Specifically, Mother repeatedly refused to
undergo a psychological assessment, was not receptive to family counseling with B.H., and
consistently advised B.H. not to take his medications. The GAL reported that B.H. wished to be
returned to Mother’s custody, but appeared to be aware that this might not be feasible.
Ultimately, the GAL recommended that B.H. be committed to the agency’s permanent custody,
but noted that a planned permanent living arrangement may be a more appropriate disposition for
B.H., although the agency had not requested a planned permanent living arrangement as of the
date of the report.
{¶18} On October 30, 2017, the GAL submitted an updated report and recommendations.
The GAL updated his recommendation and concluded that a PPLA would be the best outcome
for B.H. The GAL also updated his report to include information from Mother’s partial
psychiatric assessment that had been completed over a year earlier. He noted that the doctor
evaluating Mother concluded that although Mother had refused to submit to a full assessment,
there was nevertheless “abundant clinical data” that led the doctor to a “solid clinical diagnosis
and treatment recommendation.” Specifically, Mother’s behavior was consistent with paranoid
schizophrenia.
{¶19} Also on October 30, 2017, the court held an evidentiary hearing. The agency
requested to modify its motion for permanent custody to a planned permanent living
arrangement. The court granted this motion to modify and proceeded to hear testimony from
Eric Eichler (“Eichler,” B.H.’s therapist), Dr. Amy Justice (“Dr. Justice,” the clinical
psychologist who evaluated Mother), the social worker in the case, and Mother.
{¶20} Eichler testified as to the treatment that B.H. received at Belmont Pines and stated
that throughout his time at the facility, B.H. consistently stated that he wanted to be returned to
Mother’s custody. Dr. Justice testified as to the interview she conducted with Mother, her
subsequent diagnosis of schizophrenia, the symptoms of schizophrenia, and Mother’s refusal to
engage in additional psychological testing. The social worker testified as to the relationship
between Mother and B.H., the case plan goals for each of them, and the progress made toward
those goals. The social worker testified that a planned permanent living arrangement would be
in the child’s best interest because B.H. had a strong desire to have a relationship with Mother,
but returning him to Mother’s custody would be detrimental to his progress. Mother testified
that if B.H. were returned to her custody, she would encourage him to continue with whatever
treatment was deemed necessary. She testified that she believed she had done whatever she was
supposed to regarding her own services. While she acknowledged that she had struggled with
mental health in the past and had been “stressed out,” she denied having a mental health
diagnosis at any point. Mother also reiterated some of the delusional statements she had made
at other points throughout the case regarding the malicious intentions of court and agency
officials and the staff treating B.H.
{¶21} On December 12, 2017, the court granted the agency’s motion for a planned
permanent living arrangement and issued a corresponding journal entry. The court found that it
was in B.H.’s best interest to preserve the relationship between him and Mother and that he
gradually step down from his residential placement into a therapeutic foster home.
{¶22} Mother appeals, presenting one assignment of error for our review.
Law and Analysis
{¶23} In her sole assignment of error, Mother argues that the trial court’s decision to
award permanent custody to CCDCFS was against the manifest weight of the evidence because it
was not supported by clear and convincing evidence. As a preliminary matter, we note that the
juvenile court did not grant permanent custody to CCDCFS. It granted the agency’s motion for
a planned permanent living arrangement.
{¶24} A planned permanent living arrangement is statutorily defined as
follows:
“Planned permanent living arrangement” means an order of a juvenile court
pursuant to which both of the following apply:
(a) The court gives legal custody of a child to a public children services agency or
a private child placing agency without the termination of parental rights.
(b) The order permits the agency to make an appropriate placement of the child
and to enter into a written agreement with a foster care provider or with another
person or agency with whom the child is placed.
R.C. 2151.011(B)(38). A juvenile court may place a child adjudicated to be abused, neglected,
or dependent in a planned permanent living arrangement if the agency so requests such a
placement and if the court finds by clear and convincing evidence that a planned permanent
living arrangement is in the best interest of the child, that the child is 16 years of age or older,
and that one of the following exists:
(a) The child, because of physical, mental, or psychological problems or needs, is
unable to function in a family-like setting and must remain in residential or
institutional care now and for the foreseeable future beyond the date of the
dispositional hearing held pursuant to section 2151.35 of the Revised Code.
(b) The parents of the child have significant physical, mental, or psychological
problems and are unable to care for the child because of the those problems,
adoption is not in the best interest of the child, as determined in accordance with
division (D)(1) of section 21151.414 of the Revised Code, and the child retains a
significant and positive relationship with a parent or relative.
(c) The child has been counseled on the permanent placement options available to
the child, and is unwilling to accept or unable to adapt to a permanent placement.
R.C. 2151.353(A)(5). Clear and convincing evidence is defined as “that measure or degree of
proof which is more than a mere ‘preponderance of the evidence’ but not to the extent of such
certainty as is 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 to be established.” In re
Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994).
{¶25} After a thorough review of the testimony and other evidence in the record, we find
there was competent and credible evidence that supported the juvenile court’s finding that a
planned permanent living arrangement was appropriate pursuant to the requirements of R.C.
2151.353(A)(5).
{¶26} In this case, the trial court found that there was clear and convincing evidence that
a planned permanent living arrangement was in the best interest of B.H., that B.H. was 16 years
of age or older, and that placement was supported under R.C. 2151.353(A)(5)(a) and (b).
Relative to subsection (a), the court found that it was in B.H.’s best interest that he “gradually
step down from his residential placement at Belmont Pines into a therapeutic foster home where
he can learn independent living skills that he will need when he becomes a legal adult.”
Relative to subsection (b), the court found that the “Court Diagnostic Clinic found that the
mother presented with features of Schizophrenia, Paranoid type[,]” was not in treatment to
manage this, and therefore was “unable to care for the child” and address his mental health needs.
{¶27} All of these findings are supported by clear and convincing evidence. The record
contains ample evidence of B.H.’s struggles and progress with his treatment at Belmont Pines,
including the testimony elicited from Eichler and numerous reports completed over the course of
the case. Further, less restrictive placement options for B.H. were attempted numerous times
and were ultimately unsuccessful. The record also contains ample evidence of Mother’s mental
health issues. Dr. Justice testified as an expert witness that she had diagnosed Mother with
paranoid schizophrenia. This diagnosis was reached after an interview lasting several hours, in
which Mother displayed a lack of acceptance of reality, delusions and thought distortions, and
reported what Dr. Justice referred to as “hallucinatory phenomena.” Further, Mother’s behavior
throughout the case, including her refusal to engage with agency officials, her noncompliance
with the case plan, and her disparaging and at times violent treatment of individuals involved in
the case, also supports this finding.
{¶28} In determining the best interest of the child, the court must consider all relevant
factors, including those listed in R.C. 2151.414(D), such as the child’s relationship with their
parents, the child’s wishes, and the child’s need for a legally secure permanent placement.
Based on these factors, the record contains clear and convincing evidence that a planned
permanent living arrangement was in B.H.’s best interest. The record contains multiple
references to the existence of a strong relationship between B.H. and Mother, and Mother’s love
for B.H. This bond clearly manifested itself in multiple attempts by B.H. to leave his placement
and reunite with Mother. Similarly, the record is clear that B.H. wished to maintain his
relationship with Mother, even as it became clearer to him that it was unlikely that Mother would
have custody of him again. B.H. had been in agency custody for almost two years at the time of
the trial in this case. He had a great need for a legally secure placement where he could
continue receiving necessary care and treatment. All of this supports the trial court’s finding
that a planned permanent living arrangement was in the best interest of B.H.
{¶29} For these reasons, we affirm the judgment of the trial court.
It is ordered that appellee recover of 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 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.
__________________________________________
TIM McCORMACK, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
KATHLEEN ANN KEOUGH, J., CONCUR