In re J.D. , 2021 Ohio 3822 ( 2021 )

[Cite as In re J.D., 2021-Ohio-3822.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.D., ET AL. :
: No. 110507
Minor Children :
:
[Appeal by L.W., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 28, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD18902800, AD18902801, and AD18902802
Appearances:
Thomas Rein, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
EILEEN T. GALLAGHER, J.:
Appellant, L.W., Mother, appeals an order of the Juvenile Division of
the Cuyahoga County Court of Common Pleas (the “juvenile court”) terminating her
parental rights and awarding permanent custody of her children, J.D., Y.W., and
Z.W., to the Cuyahoga County Division of Children and Family Services (“CCDCFS”
or “agency”). She claims the following two errors:
1. The trial court’s decision to deprive legal custody to Mother and to
grant the agency’s permanent custody motion was against the manifest
weight of the evidence and was not clearly and convincingly supported
by the evidence.
2. The trial court erred by granting the agency’s motion for permanent
custody against mother, as the agency failed to meet its burden as
required under R.C. 2151.414.
We affirm the trial court’s judgment.
I. Facts and Procedural History
In February 2018, the CCDCFS filed a complaint alleging that J.D.,
Y.W., and Z.W. (“the children”) were neglected and dependent. The complaint
requested temporary custody, and CCDCFS filed a motion requesting
predispositional temporary custody of the children to CCDCFS. Mother stipulated
to the allegations in an amended complaint and, in March 2018, the juvenile court
ordered the children placed in the predispositional temporary custody of CCDCFS.
The court twice extended the term of temporary custody before CCDCFS filed a
motion to modify temporary custody to permanent custody in January 2020.
The juvenile court conducted a trial on the permanent custody motion
in April 2021. Gabrielle Uhrin (“Uhrin”), an extended services social worker with
CCDCFS, testified that she began working with the family in April 2018. According
to Uhrin, each of the children has a different father, and Uhrin never interacted with
any of the fathers because one of them was deceased, and the other two never
responded to her attempts to communicate with them. (Apr. 21, 2021, tr. 8, 19-20.)
Although the two living fathers were originally included in the case plans for
reunification, they were subsequently removed due to lack of communication, and
neither of them are a party to this appeal. (Apr. 21, 2021, tr. 8-10.)
The case plan originally required Mother to attend domestic violence
classes, obtain housing, and undergo treatment for mental illness and substance
abuse. There were allegations that Mother was a victim of domestic violence in
previous relationships. However, after taking an assessment through Moore
Counseling, the domestic violence portion of her case plan was removed because
Mother was not currently in a violent relationship. (Apr. 21, 2021, tr. 10-11.)
Mother has a history of mental illness and has been diagnosed with
bipolar disorder, generalized anxiety, and post-traumatic stress disorder. (Apr. 21,
2021, tr. 11.) Uhrin testified that Mother received mental health treatment at
Signature Health and was “medicine compliant” (Apr. 21, 2021, tr. 11.) Mother also
consistently went to counseling. (Apr. 21, 2021, tr. 11.)
According to Uhrin, Mother’s “drug of choice” is cocaine, but she has
also used marijuana at times. Mother admitted to Uhrin during the pendency of this
case that she had recently taken ecstasy at a party. (Apr. 12, 2021, tr. 12.) Mother
completed a drug and alcohol assessment at Moore Counseling and was prescribed
intensive outpatient treatment, which Mother completed in early 2019. (Apr. 21,
2021, tr. 12-13.) Following the treatment, Mother maintained six months of sobriety
before testing positive for cocaine, marijuana, and amphetamines in September
2020. (Apr. 21, 2021, tr. 13.) Mother also tested positive for cocaine and marijuana
on April 5, 2021, approximately two weeks before the permanent custody trial on
April 21, 2021. (Apr. 13, 2021, tr. 13.) Mother told Uhrin she believed her urine
sample taken on April 5, 2021, must have been mixed up with someone else’s
sample, and a subsequent test performed five days later was negative. (Apr. 21,
2021, tr. 13.) Uhrin explained, however, that “[e]ach screen is observed by the
facility who does the screening.” (Apr. 21, 2021, tr. 13.)
Uhrin testified that Mother had a “long history of not having
appropriate housing.” (Apr. 21, 2021, tr. 15.) Mother moved “from relative’s home
to relative’s home” until November 2020, when the agency verified that Mother had
obtained housing. Uhrin visited the home and observed that “there was a lot of work
that needed to be done,” including construction and extensive cleaning. The house
also needed to be tested for lead. (Apr. 21, 2021, tr. 15.) Mother produced a letter
from a company indicating it had performed the lead test, but the form was not
signed, and Uhrin was unable to investigate whether the test was legitimate because
she received the letter the evening before trial. (Apr. 21, 2021, tr. 16.) Nevertheless,
Mother removed the clutter and established gas and water service at the residence.
(Apr. 21, 2021, tr. 16.)
Uhrin testified that Mother initially visited the children regularly.
However, Mother stopped visiting them in September 2019, after they had a
“staffing” to discuss permanent custody. (Apr. 21, 2021, tr. 22.) According to Uhrin,
Mother did not visit the children at all through the agency in 2020. However,
Mother informed Uhrin that she resumed visits with the children without the agency
supervision in August 2020.
Uhrin testified she was concerned because they “don’t have a long
history of [Mother] visiting her kids and being there and bonding with them for a
long period of time.” (Apr. 21, 2021, tr. 28.) Uhrin was also concerned because
Mother had three older children who were placed in permanent custody in Lake
County, Indiana before she came to Ohio. (Apr. 21, 2021, tr. 26-28.) Mother also
has a seventh child, born during the pendency of this case, who was adjudicated
neglected and dependent and committed to the temporary custody of the agency due
to Mother’s unresolved substance abuse, mental health, and housing issues. At one
time, Mother agreed to relinquish permanent custody of the children and turn them
over to the custody of CCDCFS during a “staffing” in late 2019. (Apr. 21, 2021, tr.
32-33.)
Finally, Uhrin testified that the children had been with their maternal
great aunt since 2018. (Apr. 21, 2021, tr. 26.) The children are bonded to their great
aunt, who meets all of their needs. According to Uhrin, they are thriving in her care.
(Apr. 21, 2021, tr. 21.) The children, who are in second and third grade, are doing
very well in school and do not require any special accommodations. (Apr. 21, 2021,
tr. 21-22.) The children’s maternal great aunt indicated she would adopt the
children if CCDCFS were awarded permanent custody. (Apr. 21, 2021, tr. 26.) Based
on Mother’s history of inconsistent visitation, ongoing substance abuse, and lack of
history providing stable housing, Uhrin believed an award of permanent custody
would best serve the children’s interests. (Apr. 21, 2021, tr. 28.)
The guardian ad litem (“GAL”), Michael H. Murphy, provided a report,
dated April 14, 2021, recommending that the court grant permanent custody of the
children to CCDCFS. Murphy also stated at the hearing that after he submitted the
GAL report, he visited Mother’s home on April 19, 2021. According to Murphy, the
home was appropriate, but there was no furniture except for an air mattress where
Mother and her boyfriend sleep. (Apr. 21, 2021, tr. 40.) There were no beds or
dressers for the children. Mother told Murphy that she intended to pick out
furniture with the children. Murphy nevertheless recommended that the court
award permanent custody of the children to CCDCFS due primarily to Mother’s
ongoing substance abuse and the fact that she has failed to demonstrate that she can
provide a stable home for her children. (Apr. 21, 2021, tr. 42-43.) Murphy believed
the maternal great aunt would provide the permanency the children need. He
explained that “[t]his case has been ongoing now for three years and the minor
children need permanency, they need closure, they need stability * * * .” He further
stated, in relevant part:
I do believe that if permanent custody is granted that these children
will continue to thrive with the maternal great aunt because she’s taken
it upon herself to make sure that the minor children have everything
they need.
(Apr. 21, 2021, tr. 43.)
Based on the evidence presented at the hearing, the juvenile court
terminated Mother’s parental rights and ordered the children placed in the
permanent custody of CCDCFS. The court found that the children had been in
agency custody for more than 12 months of a consecutive 22-month period as
required by R.C. 2151.414(B)(1)(d). The court also concluded, pursuant to R.C.
2151.414(E), that the children could not, or should not, be placed with any of their
parents within a reasonable time because Mother failed to remedy the conditions
that led to the removal of the children in the first place, including her ongoing
substance abuse. The juvenile court observed that Mother demonstrated a lack of
commitment toward the children by failing to regularly visit and communicate with
them when able to do so and that she showed an unwillingness to provide an
adequate, permanent home for them. Finally, the court found that “a grant of
permanent custody is in the best interests of the child(ren).”
Mother now appeals the juvenile court’s judgment.
II. Law and Analysis
In the first assignment of error, Mother argues the juvenile court’s
judgment awarding permanent custody of her children to CCDCFS is against the
manifest weight of the evidence and was not clearly and convincingly supported by
the evidence. In the second assignment of error, Mother argues the juvenile court
erred by granting the agency’s motion for permanent custody. Within both assigned
errors, Mother contends the juvenile court’s judgment is not supported by the
evidence because the record demonstrates that Mother was compliant with her case
plan. We, therefore, discuss these assigned errors together.
A parent has a “‘fundamental liberty interest’ in the care, custody and
management” of his or her child. In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d
1169 (1990), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71
L.Ed.2d 599 (1982). The right to raise one’s own child is “an essential and basic civil
right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). Nevertheless, the
right to raise one’s own child is not absolute; it is “always subject to the ultimate
welfare of the child[.]” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034(1979).
CCDCFS may obtain permanent custody by first obtaining temporary
custody of a child and then filing a motion for permanent custody under R.C.
2151.413. See In re M.E., 8th Dist. Cuyahoga No. 86274, 2006-Ohio-1837. There is
no dispute that the proper procedure was followed in this case. When CCDCFS files
a permanent custody motion under R.C. 2151.413 after obtaining temporary
custody, the guidelines and procedures set forth under R.C. 2151.414 apply.
R.C. 2151.414 sets forth a two-pronged analysis the juvenile court must
apply when ruling on a motion for permanent custody. R.C. 2151.414(B) requires
the court find, by clear and convincing evidence, that (1) granting permanent
custody of the child to CCDCFS is in the best interest of the child, and (2) either the
child (a) cannot be placed with either parent within a reasonable period of time or
should not be placed with either parent if any one of the factors in R.C. 2151.414(E)
are present; (b) is abandoned; (c) is orphaned and no relatives are able to take
permanent custody of the child; or (d) has been in the temporary custody of one or
more public or private children services agencies for 12 or more months of a
consecutive 22-month period. R.C. 2151.414(B)(1).
“‘Clear and convincing evidence’ is evidence that ‘will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established.’” In re C.B., 8th Dist. Cuyahoga No. 92775, 2011-Ohio-5491, ¶ 28,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
A juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence “if the record contains
some competent, credible evidence from which the court could have found that the
essential statutory elements for permanent custody had been established by clear
and convincing evidence.” In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-
1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
The juvenile court concluded, pursuant to R.C. 2151.414(B)(2), that
the children could not, or should not, be placed with either parent within a
reasonable time. In determining that a child cannot be placed with either parent
within a reasonable time or should not be placed with either parent, the trial court
must consider the factors contained in R.C. 2151.414(E). If the court determines at
a hearing that one or more of the factors set forth in R.C. 2151.414(E) exist as to each
of the child’s parents, the court shall enter a finding that the child cannot be placed
with either parent within a reasonable period of time or should not be placed with
either parent. In re I.K., 8th Dist. Cuyahoga No. 96469, 2011-Ohio-4512, ¶ 8. The
existence of any one of the factors is sufficient to determine that a child cannot be
placed with a parent within a reasonable period of time. In re C.C., 187 Ohio App.
3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 10 (8th Dist.), citing In re William S., 75
Ohio St.3d 95, 99, 661 N.E.2d 738 (1996).
In determining that the children could not be placed with any parent
within a reasonable time, the juvenile court found, pursuant to R.C. 2151.414(E)(1),
that
following 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 child’s home, the parent has
failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside the child’s home.
(Lower case entries AD18902800, AD18902801, AD18902802, journalized Apr. 27,
2021, Apr. 27, 2021, and Apr. 29, 2021, respectively.)
The juvenile court further found, pursuant to R.C. 2151.414(E)(2), that
Mother’s chronic mental illness or chemical dependency was “so severe that it makes
[her] unable to provide an adequate permanent home for the child at the present
time and, as anticipated, within one year * * *.” (Lower case entries AD18902800,
AD18902801, AD18902802, journalized Apr. 27, 2021, Apr. 27, 2021, and Apr. 29,
2021, respectively.) Although Mother went six months without testing positive for
drugs, Uhrin testified that Mother tested positive for cocaine and marijuana
following the six months of sobriety, including a test performed two weeks before
the permanent custody hearing. Uhrin’s undisputed testimony that Mother is still
struggling with substance abuse supports the juvenile court’s findings.
The record shows, and the trial court further found, pursuant to R.C.
2151.414(E)(10) and (11), that the children’s fathers either abandoned them or were
deceased and that Mother previously had her parental rights involuntarily
terminated with respect to other siblings. (Lower case entries AD18902800,
AD18902801, AD18902802, journalized Apr. 27, 2021, Apr. 27, 2021, and Apr. 29,
2021, respectively.)
Pursuant to R.C. 2151.414(E)(4), the trial court found that Mother
showed a lack of commitment to her children by failing to regularly support, visit,
or communicate with them when able to do so. (Lower case entries AD18902800,
AD18902801, AD18902802, journalized Apr. 27, 2021, Apr. 27, 2021, and Apr. 29,
2021, respectively.) R.C. 2151.011(C) provides that “[f]or purposes of this chapter, a
child shall be presumed abandoned when the parents of the child have failed to visit
or maintain contact with the child for more than ninety days, regardless of whether
the parents resume contact with the child after that period of ninety days.” Uhrin
testified that Mother stopped visiting the children in September 2019, and did not
resume visits until August 2020, a period of about 11 months. Thus, undisputed
evidence supports the court’s finding that Mother demonstrated a lack of
commitment toward the children by failing to visit them. We, therefore, conclude
that the trial court’s findings under R.C. 2151.414(E) are supported by competent,
credible evidence in the record. Based on these findings, the juvenile court was
required to find that the children could not be placed with either of their parents
within a reasonable time or should not be placed with either parent. See, e.g., In re
C.H., 8th Dist. Cuyahoga Nos. 82258 and 82852, 2003-Ohio-6854, ¶ 58, citing In
re Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000.).
The trial court’s determination that permanent custody was in the
children’s best interest is also supported by clear and convincing evidence. In
determining whether permanent custody is in the child’s best interest pursuant to
R.C. 2151.414(D)(1), the juvenile court must consider “all relevant factors,”
including, but not limited to (1) 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; (2) the
wishes of the child, as expressed through the child’s guardian ad litem depending on
the maturity of the child; (3) the 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 R.C.
2151.414(E)(7) to (11) apply.
Although the juvenile court is required to consider each factor listed
in R.C. 2151.414(D)(1), no one factor is to be given greater weight than the others.
In re T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 23, citing In re
Schaefer, 111 Ohio St. 3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Only one of
the factors set forth in R.C. 2151.414(D)(1) needs to be resolved in favor of
permanent custody. In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-Ohio-3818,
¶ 17.
The Ohio Supreme Court recently held 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. Although a
reviewing court must be able to discern from the magistrate’s or
juvenile court’s decision and the court’s judgment entry that the court
satisfied the statutory requirement that it consider the enumerated
factors, we may not graft onto the statute a requirement that the court
include in its decision a written discussion of or express findings
regarding each of the best-interest factors.
In re A.M., Slip Opinion No. 2020-Ohio-5102, ¶ 31.
The weight given to the R.C. 2151.414(D)(1) factors is within the
juvenile court’s discretion. In re P.B., 8th Dist. Cuyahoga Nos. 109518 and 109519,
2020-Ohio-4471, ¶ 76, citing In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-
5618, ¶ 47. We, therefore, will not disturb the juvenile court’s determination of a
child’s best interest absent an abuse of discretion. Id. “A court abuses its discretion
when a legal rule entrusts a decision to a judge’s discretion and the judge’s exercise
of that discretion is outside of the legally permissible range of choices.” State v.
Hackett, Slip Opinion No. 2020-Ohio-6699, ¶ 19. An abuse of discretion may be
found where a trial court “applies the wrong legal standard, misapplies the correct
legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland,
176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When
applying the abuse of discretion standard, a reviewing court may not substitute its
judgment for that of the trial court. Vannucci v. Schneider, 2018-Ohio-1294, 110
N.E.3d 716, ¶ 22 (8th Dist.).
With respect to 2151.414(D)(1)(c), which deals with the children’s
custodial history, the juvenile court observed that the children had been in agency
custody for more than 12 months of a consecutive 22-month period. Indeed, the
record showed that Mother stopped visiting the children for almost an entire year of
the three years the children were in temporary custody. There was also evidence
that Mother at one time agreed to relinquish permanent custody of her children to
CCDCFS.
With respect to R.C. 2151.414(D)(1)(a), which deals with the children’s
interrelationship with parents and caregivers, the evidence shows that the children
had a more consistent relationship with their maternal great aunt than with Mother.
The children had been living together with their maternal great aunt for
approximately three years at the time of the permanent custody hearing. And,
according to Uhrin, the children were “very happy” living with her, attended the
same school, and were doing well. (Apr. 21, 2021, tr. 21.)
R.C. 2151.414(D)(1)(d) concerns the children’s need for a legally
secure and permanent home. At the time of the permanent custody hearing, the
children had been in agency custody for approximately three years. And, as
previously stated, the children could not, or should not, be placed with one of their
parents within a reasonable time. Therefore, the undisputed evidence showed that
the children needed a legally secure placement, and their maternal great aunt was
willing to adopt all three children and provide them a permanent home. The GAL,
who represents the children’s wishes as provided in R.C. 2151.414(D)(1)(b), also
testified that “this case has been ongoing for three years and the minor children need
permanency, they need closure, they need stability.” (Apr. 21, 2021, tr. 43.) For that
reason, and because Mother had not remedied the problems that required removal
of the children in the first place, the GAL recommended that awarding permanent
custody to the agency was in the children’s best interest.
R.C. 2151.414(D)(2)(d) requires the court to consider whether “[p]rior
to the dispositional hearing, no relative or other interested person has filed, or has
been identified in, a motion for legal custody of the child.” No relative or interested
person had filed a motion for legal custody of the children prior to the dispositional
hearing in this case. The maternal great aunt, who had temporary custody of the
children, did not seek legal custody because she wanted to adopt the children. (Apr.
21, 2021, tr. 26, 33.) Therefore, there were no relatives interested in legal custody of
the children, and this factor was satisfied at the time of trial. (Apr. 21, 2021, tr. 42.)
Although Mother complied with many aspects of her case plan, “[a]
parent’s successful completion of the terms of a case plan is not dispositive on the
issue of reunification.” In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d
360, ¶ 25 (8th Dist.). In In re C.C., we explained:
The ultimate question under R.C. 2151.414(A)(1) is whether the parent
has substantially remedied the conditions that caused the child’s
removal. In re Shchigelski (Oct. 20, 2000), 11th Dist. Geauga No. 99-
G-2241, 2000 Ohio App. LEXIS 4900; In re McKenzie (Oct. 18, 1995),
9th Dist. Wayne No. 95CA0015, 1995 Ohio App. LEXIS 4618. A parent
can successfully complete the terms of a case plan yet not substantially
remedy the conditions that caused the children to be removed ─ the
case plan is simply a means to a goal, but not the goal itself. Hence, the
courts have held that the successful completion of case plan
requirements does not preclude a grant of permanent custody to a
social services agency. In re J.L., 8th Dist. [Cuyahoga] No. 84368,
2004 Ohio 6024, at ¶ 20; In re Mraz, 12th Dist. [Brown] Nos. CA2002-
05-011, CA2002-07-014, 2002 Ohio 7278.
The record shows that Mother is still struggling with substance abuse, stopped
visiting the children for almost a year while the children were in temporary custody,
and failed to demonstrate that she could reliably provide a secure and stable home
for the children. The juvenile court made the findings required by R.C. 2151.414
before granting CCDCFS permanent custody of the children, and the findings are
supported by clear and convincing evidence. We, therefore, overrule both
assignments of error.
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.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR