In re Y.V. , 2011 Ohio 2409 ( 2011 )

[Cite as In re Y.V., 2011-Ohio-2409.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96061
IN RE: Y.V.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD09902303
BEFORE: Rocco, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 19, 2011
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ATTORNEY FOR APPELLANT
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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.
Yvonne C. Billingsley
C.C.D.C.F.S.
3955 Euclid Avenue
Cleveland, Ohio 44115
William D. Mason
Cuyahoga County Prosecutor
BY: Gina S. Lowe
Assistant Prosecuting Attorney
Cuyahoga County Department of Children
and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144
GUARDIAN AD LITEM
Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070
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KENNETH A. ROCCO, J.:
{¶ 1} Appellant F.V.1 appeals from the order of the Cuyahoga County
Court of Common Pleas, Juvenile Division, that terminated his parental
rights and granted permanent custody of the child Y.V. to the Cuyahoga
County Department of Children and Family Services (“the agency”).
{¶ 2} Appellant presents one assignment of error. He argues the
juvenile court’s order lacks an adequate basis in the evidence. Since this
court disagrees, his assignment of error is overruled, and the juvenile court’s
order is affirmed.
{¶ 3} The record reflects the child was born on November 20, 2008. At
that time, the child’s mother was serving a prison sentence for a probation
violation; therefore, the agency assumed emergency temporary custody of the
child. The agency placed the child in a foster home where her two siblings
also previously had been placed.
{¶ 4} On July 1, 2009, the juvenile court adjudicated the child as
neglected and dependent. On October 6, 2009, after conducting a hearing,
the court placed the child into the agency’s full temporary custody.
1The parties are not referred to by their names because it is this court’s policy
to protect the privacy of children involved in parental rights cases.
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{¶ 5} The agency filed a motion for an extension of temporary custody
on November 10, 2009. Upon a finding that some progress had been made in
alleviating the cause for the child’s removal from the parents, the court
granted the motion on February 2, 2010, and set the case for a review hearing
to be held a few months later.
{¶ 6} However, on March 31, 2010, the agency filed a motion for
permanent custody. The agency alleged Y.V. had been in its temporary
custody for twelve or more months of a consecutive twenty-two month period,
and that an award of permanent custody to the agency was in Y.V.’s best
interest.
{¶ 7} According to the social worker’s affidavit attached to the motion,
Y.V.’s natural mother had failed to obtain any of the case plan objectives, had
“a severe cocaine problem” that remained unresolved, had never successfully
completed a substance abuse treatment program, and had her parental rights
involuntarily terminated as to her two other children based on the same facts.
{¶ 8} The affidavit also stated that appellant failed to support Y.V.
since her birth and failed to establish paternity. Furthermore, the affidavit
alleged appellant had completed only that portion of the case plan that
required him to complete a mental health assessment; appellant had obtained
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neither appropriate housing for the child nor a stable income with which he
could provide for Y.V.
{¶ 9} On September 30, 2010, the juvenile court conducted a hearing on
the agency’s motion. Y.V.’s natural mother did not attend. The agency
presented the testimony of the social worker assigned to the case, and
introduced several exhibits into evidence. Appellant elected to present no
evidence.
{¶ 10} Following the hearing, the juvenile court granted the agency’s
motion for permanent custody.
{¶ 11} Appellant appeals the foregoing judgment, raising one
assignment of error for review.
“I. The trial court’s order granting permanent custody to the
[agency] was not based upon sufficient clear and convincing
evidence.”
{¶ 12} Appellant argues the juvenile court’s decision is unsupported by
the record. This court disagrees.
{¶ 13} In order to terminate parental rights and grant permanent
custody to a county agency, the record must demonstrate by clear and
convincing evidence the following: 1) the existence of one of the conditions set
forth in R.C. 2151.414(B)(1)(a) through (d); and, 2) permanent custody is in
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the best interest of the child. In making the latter determination, the court
must consider the five factors set forth in R.C. 2151.414(D). “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.
Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118.
{¶ 14} The “best interest determination” focuses on the child, not the
parent. In re Awkal (1994), 95 Ohio App.3d 309, 315, 642 N.E.2d 424. The
discretion that the juvenile court enjoys in determining whether an order of
permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
determination will have on the lives of the parties concerned. Id., at 316.
{¶ 15} In this case, the juvenile court determined, pursuant to R.C.
2151.414(B), that Y.V. had “been in the temporary custody of a public
children services agency * * * for twelve or more months of a consecutive
twenty-two month period.” Appellant cannot dispute that this requirement
was met.
{¶ 16} The juvenile court also was required to determine that permanent
custody is in the best interest of the child. Pursuant to R.C. 2151.414(D), the
relevant factors include the following: 1) the interaction and
interrelationship of the child with others; 2) the wishes of the child; 3) the
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custodial history of the child; 4) the child’s need for a legally secure placement
and whether such a placement can be achieved without permanent custody;
and, 5) whether any of the factors in divisions (E)(7) to (11) apply.
{¶ 17} The juvenile court conducted an evidentiary hearing in this case,
and considered the testimony and evidence presented. In determining
whether a grant of permanent custody to the agency was in Y.V.’s best
interest, the court considered the factors listed in R.C. 2151.414(D)(1)
through (5).
{¶ 18} The juvenile court recognized that Y.V. had been in the agency’s
custody since November 2008, that no suitable relatives existed with whom
Y.V. could be placed, and that the agency had made reasonable efforts to
reunify the family. Appellant did not rebut testimony that indicated that, at
the time of the hearing, he lived in a single room with his girlfriend, and that,
while he occasionally worked in construction, he lacked permanent
employment.
{¶ 19} Thus, even though appellant had completed a part of the case
plan, he had obtained neither stable housing nor a verifiable stable income.
Moreover, appellant had not established paternity of Y.V. and had not
resolved his immigration status in this country, which, at that time, was as
an illegal alien.
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{¶ 20} In finding that granting permanent custody to the agency was in
Y.V.’s best interest, the juvenile court thoroughly considered the evidence and
testimony presented. Y.V.’s positive relationship with appellant was not, in
itself, enough to demonstrate a contrary conclusion. This court previously
has stated that, “the mere existence of a good relationship is insufficient.
Overall, we are concerned with the best interest of the child, not the mere
existence of a relationship.” In re K.M., Cuyahoga App. No. 95374,
2011-Ohio-349, ¶23, citing In re R.N., Cuyahoga App. No. 83121,
2004-Ohio-2560.
{¶ 21} The juvenile court considered the social worker’s testimony that
the agency had placed Y.V. in a foster home “with her siblings and she ha[d] a
very good relationship with the foster parents and her siblings,” that Y.V. had
“really bonded” with her current family, and that Y.V. seemed “happy and
healthy” in her current placement. The social worker explained that Y.V.’s
foster parents provided for all of her health and physical and speech therapy
needs, and that they wished to adopt her as they had adopted her siblings.
Based upon the testimony and the recommendation made by Y.V.’s guardian
ad litem, the juvenile court found that permanent custody was in Y.V.’s best
interest.
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{¶ 22} Appellant questions the juvenile court’s failure to consider a
planned permanent living arrangement (“PPLA”). However, the record
reflects the agency did not request this form of disposition. Neither did
appellant raise this issue in the juvenile court.
{¶ 23} A “PPLA” is an order by which the juvenile court grants legal
custody of a child to an agency without terminating parental rights. R.C.
2151.011(B)(37). Pursuant to R.C. 2151.353(A)(5), the juvenile court is not
authorized to consider a PPLA unless the children services agency has
requested such a disposition. In re A.B., 110 Ohio St.3d 230,
2006-Ohio-4359, 852 N.E.2d 1187, ¶37. Therefore, without the agency’s
request for such a disposition, the juvenile court could not place Y.V. in a
PPLA. Id., at the syllabus.
{¶ 24} The supreme court recognized that a “[PPLA] is to be considered
as a last resort for the child,” reflecting “the General Assembly’s goal is to
avoid allowing children to languish indefinitely in foster care.” Id. at ¶36.
This court also has recognized that “[a] child’s best interests require
permanency and a safe and secure environment.” In re Holyak (July 12,
2001), Cuyahoga App. No. 78890.
{¶ 25} A review of the record shows clear and convincing evidence
supports the juvenile court’s determination that permanent custody is in the
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best interest of Y.V. Therefore, the juvenile court did not err in granting
permanent custody to the agency. In re K.M., ¶25.
{¶ 26} Appellant’s sole assignment of error, accordingly, 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.
_______________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, P.J., and
SEAN C. GALLAGHER, J., CONCUR