In re KA.R. , 2021 Ohio 4125 ( 2021 )

[Cite as In re KA.R., 2021-Ohio-4125.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE KA.R., ET AL. :
: No. 110504
Minor Children :
:
[Appeal by L.R., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 18, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-19905459, AD-19905460, AD-19905461, and AD-19905462
Appearances:
Sylvester Summers, Jr., Co., L.P.A. and Sylvester
Summers, Jr., for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
EMANUELLA D. GROVES, J.:
Appellant-mother, L.R. (“Mother”), appeals from the judgment of the
juvenile court awarding permanent custody of her children, Ke.R. (d.o.b.
Mar. 24, 2008), Ka.R. (d.o.b. June 10, 2011), Ky.R. (d.o.b. July 30, 2014), and K.G.
(d.o.b. Mar. 7, 2018), to the Cuyahoga County Department of Children and Family
Services (“CCDCFS” or “the agency”). For the reasons set forth below, we affirm the
decision awarding permanent custody to the agency.
Procedural History
On May 3 and 6, 2019, respectively, CCDCFS filed a complaint and
motion for predispositional temporary custody, alleging the minor children were
neglected. The complaint alleged that on April 19, 2019, Mother failed to supervise
the children. Mother left the children in the care of Ke.R., who was 11 years old at
the time. The complaint further alleged that, while unsupervised, one-year-old K.G.
broke his arm and his leg. Mother could not explain how he was injured. Finally,
the complaint alleged that Mother was overwhelmed with the care of the children.
On June 13, 2019, a hearing was held on CCDCFS’s motion for
predispositional temporary custody. Following the hearing, the juvenile court
elected to place the children with two family friends, T.K. and P.D. Mother’s two
oldest children would reside with T.K. and her two youngest with P.D. The juvenile
court’s June 13, 2019 journal entry reflects that these placements were part of a
“safety plan” that had been created for the children.1
On July 30, 2019, after an adjudicatory hearing, CCDCFS amended the
complaint to allege that the children were dependent. Mother stipulated to the
1 The record reflects that there were several safety plan meetings; however, the
plan is not detailed. It is clear that the placement of the children with T.K. and P.D. was
a product of these meetings, and they happened sometime after K.G. was injured, but it
is not clear exactly when.
allegations in the amended complaint, and the juvenile court found the children to
be dependent. The children continued in their safety plan placements.
On August 20, 2019, after a dispositional hearing, the juvenile court
granted CCDCFS’s motion for emergency temporary custody and also committed
the children to the temporary custody of CCDCFS. CCDCFS approved both T.K.’s
and P.D.’s homes for foster placement, so the children remained in their placements
at that time.
On April 1, 2020, CCDCFS filed a motion for first extension of
temporary custody. In the motion, CCDCFS alleged that Mother had completed
parenting education and engaged in mental health treatment, but Mother still
needed to demonstrate an ability to meet the children’s basic needs and to engage
in family counseling.
On June 8, 2020, CCDCFS amended its motion from a request for
extension of temporary custody to a motion for permanent custody to CCDCFS. In
the supporting brief, CCDCFS stated that a case plan had been approved by the
juvenile court, which required, among other things, that Mother follow through with
the recommendations of her mental health assessment, complete family counseling,
parenting education, and submit to a drug screen.
CCDCFS stated that although Mother had completed parenting
education, she failed to demonstrate that she benefitted from it. Further, Mother
was inconsistent with taking her medication and going to counseling. The agency
also stated Mother had failed to engage in family counseling and had failed to submit
to a drug screen. Mother was inconsistent in her visitation and communication with
the children. CCDCFS also alleged that Mother did not acknowledge Ke.R.’s
developmental delays. Finally, CCDCFS asserted that permanent custody was in the
best interest of the children.
On February 16, 2021, Mother filed a motion requesting weekly in-
person visitation. Mother argued that to strengthen her bond with her children and
meet case plan goals with regards to parenting, the then monthly virtual visitation
schedule was insufficient. CCDCFS filed a motion opposing the request for weekly
in-person visitation but suggested monthly in-person visits instead. The agency
noted that although Mother had consistently visited between August 2020 and
December 2020 when the agency arranged for in-person visits in her home, visits
became inconsistent when the agency switched back to virtual visits due to an uptick
in COVID-19 infections. CCDCFS indicated Mother did not attend visits.
Furthermore, even after the agency switched visits to a different day at Mother’s
request, the agency alleged that Mother failed to attend visits.
On March 22, 2021, Mother filed a motion to terminate temporary
custody and grant legal custody to Mother. In the motion, Mother argued that she
had completed all case plan goals, except family counseling. Mother alleged
CCDCFS had not referred her for family counseling. In the alternative, Mother
asked that custody be given to D.R., a family friend and former coworker of Mother,
who had known the children all of their lives.
Dispositional Hearing
At the dispositional hearing, CCDCFS presented the testimony of
social worker, Arlethia Levison (“Levison”), who was assigned to Mother in March
2020. Levison testified that K.G.’s medical records indicated his broken bones were
due to child abuse; however, they were unable to determine who injured him.
Levison testified that Mother reported she was not home when the incident
occurred. CCDCFS presented Mother with a case plan that addressed parenting,
mental health, family counseling for Mother and Ke.R., and individual counseling
for Ke.R. and Ka.R. In addition to the case plan, Mother was asked to submit to a
drug screen and to participate in K.G.’s occupational and speech therapy.
Levison testified that Mother participated in the mental health
assessment and was diagnosed with depression and advised to seek mental health
counseling. Mother had sporadic attendance with her first therapist and then
stopped attending. After the agency filed for permanent custody, Mother asked to
be transferred to MetroHealth. Mother reengaged in counseling in July 2020.
Further, Mother felt therapy should focus on her anger issues and not the depression
identified in her assessment.
Levison testified that prior to being assigned the case in March 2020,
Mother had not had any visits with the children. A semiannual review was
conducted in April 2020, which Mother attended by phone. Levison felt Mother was
inappropriately angry during that meeting. As Mother was not engaged in mental
health counseling at that time, and due to Levison’s concern that something else
might be going on, the agency asked Mother to submit to a drug screen. Mother did
not comply. Levison met with Mother in May 2020 and started the process to begin
visitation. Visits began in August 2020.
Levison testified that Mother completed parenting education in 2019;
however, Levison did not see Mother utilize what she learned during supervised
visits. In-person visits occurred between August 2020 and December 2020. During
those visits, Mother tended to favor K.G., and typically only spent time with two of
the four children. Ke.R. would sit with Levison during visits. Mother had to be
encouraged to engage Ke.R. but often did not seem to know how to engage with her
despite receiving coaching. Mother also spent a large portion of visits calling
relatives on her cell phone and having them speak to the children. The older
children expressed frustration with this behavior as they often did not know these
relatives and wanted to spend time with Mother.
Levison testified that during visits, Mother did not set appropriate
boundaries with K.G. Typically, if he cried, Mother would respond by doing
whatever K.G. wanted. K.G. did not exhibit this type of needy behavior in the foster
home.
In October 2020, all four children were in the same foster placement
with P.D. The two oldest children’s foster placement with T.K. ended when T.K.’s
mother became ill and T.K. became her mother’s primary caregiver. Shortly after
that, in November 2020, visits with Mother became virtual due to an uptick in
COVID-19 infections. Mother was not consistent in attending those visits. Mother
did not attend any virtual visits in December, only one visit in January 2021, and no
visits as of February 16, 2021, when Mother filed a motion asking for weekly in-
person visitation.
Levison was considering moving the visits back to where Mother
lived; however, an allegation was raised that the home was unsanitary. The agency
was involved because Mother was living with a girlfriend and the girlfriend’s
children. Those allegations were still under investigation at the time of the
disciplinary hearing. The agency opposed weekly visits but supported monthly
supervised in-home visits at that time.
Levison testified that family counseling did not occur between Mother
and Ke.R. because Ke.R. refused. Levison testified that typically the therapist would
determine when it was best to include the parent in therapy. In Ke.R.’s case, Ke.R.
was reluctant to talk about Mother in therapy or with Levison and would often shut
down when anyone tried to talk to her about Mother or what it was like to live with
Mother. To encourage the relationship between Mother and Ke.R., Levison
encouraged Mother to engage Ke.R. during visits. Mother did not follow through.
Levison described Ke.R. as “parentified,” noting she was often called upon to take
care of her three younger siblings and fill the role of a parent.
Levison testified that Mother did not attend any of K.G.’s therapy
sessions. K.G. was in therapy due to the injuries that led to agency involvement and
removal of the children. Furthermore, K.G. had a locked jaw that presented a
choking risk. CCDCFS wanted Mother to attend therapy to assist K.G. with these
issues. Levison testified that Mother’s failure to attend therapy demonstrated a
failure to meet her child’s basic needs.
Levison testified that the children were well bonded and engaged
with their foster mother, P.D. Ka.R. and Ky.R. in particular were very connected to
P.D., expressing a strong bond with P.D. Ky.R. referred to P.D. as “Granny.”
On March 22, 2021, Mother filed for termination of temporary
custody and/or legal custody to her friend and former coworker, D.R. Levison
testified that the agency investigated D.R. as a potential custodian for the children.
At the dispositional hearing, D.R. testified that he was in the process
of being approved as a foster placement. D.R. testified that he had known the
children all their lives. However, Levison testified that the children did not
recognize his name when she asked them about D.R.
CCDCFS determined that disrupting the children’s placement was
unwarranted given their lack of a relationship with D.R. and their stability and bond
with P.D. The children remained in the care of P.D. during this time; however, as
an alternative to permanent custody or custody with D.R., the agency investigated
legal custody of the children with T.K. or P.D., the original safety plan placements.
However, neither T.K. nor P.D. were willing to take formal legal custody, advocating
instead for Mother to retain her ability to take custody of the children. No other
family members were identified as potential caregivers.
In a written report, filed April 16, 2021, the guardian ad litem, Pamela
Hawkins (“GAL” or “Hawkins”), opined that permanent custody was in the best
interest of the children. In the report, Hawkins noted that although Mother had
completed a parenting education program, she struggled to manage all four children
together. Hawkins noted that Ke.R. refused to participate in counseling because she
was angry with Mother and feared that she would be required to parent her siblings
if they returned to Mother. Hawkins further noted that Ke.R. did not wish to return
to her mother’s custody and did not wish to talk with Mother on a consistent basis.
Neither Ka.R. nor Ky.R. wanted to return to Mother’s custody. Hawkins noted that
Ka.R. is bonded with Mother but does not feel safe in her care. Ky.R. is also bonded
with Mother. Hawkins suggested that Ky.R. may be following her sisters’ lead when
she says she does not want to return to Mother’s care rather than expressing her
feelings. K.G. was deemed too young to understand the proceedings in order to
express an opinion on this issue.
Hawkins noted that no relatives had filed for legal custody of the
children. Further, none of the fathers or alleged fathers had engaged in any services
to demonstrate that they could provide for the children on an ongoing basis.
Further, Hawkins noted that Mother had not remedied the concerns that led to the
children’s removal; therefore, she did not recommend that the children be returned
to her custody. Hawkins noted that the children’s basic needs were being met in
P.D.’s home and they were adjusting to their placement.
At the conclusion of testimony, Hawkins gave an oral report in which
she reiterated that permanent custody is in the best interest of the children.
Hawkins also relayed that she had spoken to the children about D.R. and they did
not recognize the name, although Ke.R. thought she may have seen him one
Christmas. Following the hearing, the juvenile court granted CCDCFS’s motion for
permanent custody of the children.
Mother now appeals, assigning the following error for review:
Assignment of Error
The Trial Court Erred In Awarding Permanent Custody to the CCDCFS
As the CCDCFS Failed To Show By Clear And Convincing Evidence
That Adequate Grounds Existed For A Grant of Permanent Custody
And Therefore Such Decision Was Contrary To The Manifest Weight of
the Evidence.
“It is well established that a parent has a fundamental right to raise
and care for his or her child.” In re AR.S., 8th Dist. Cuyahoga No. 110028, 2021-
Ohio-1958, ¶ 27, citing In re L.M., 8th Dist. Cuyahoga No. 106072, 2018-Ohio-963,
citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28; In re
K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 40. Termination of
parental rights has been described as “‘the family law equivalent of the death penalty
in a criminal case.’” Id., quoting In re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061,
and 103367, 2015-Ohio-4991, citing In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-
Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776
N.E.2d 485, ¶ 14.
“An appellate court will not reverse a juvenile court’s decision
awarding permanent custody to an agency if the judgment is supported by clear and
convincing evidence.” Id. at ¶ 28, citing In re J.M-R., 8th Dist. Cuyahoga No. 98902,
2013-Ohio-1560, ¶ 28. “‘Clear and convincing’ evidence is that measure or degree
of proof that is more than a ‘preponderance of the evidence,’ but does not rise to the
level of certainty required by the ‘beyond a reasonable doubt’ standard in criminal
cases.” Id. at ¶ 28, citing In re K.S., 8th Dist. Cuyahoga No. 109928, 2021-Ohio-694,
¶ 15, citing In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028,
¶ 8, citing In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994),
citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181,
512 N.E.2d 979 (1987). “‘It “produces in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.”’” Id. at id., quoting In Re K.S. at
¶15, quoting In re M.S. at ¶ 18.
“The termination of parental rights is governed by R.C. 2151.414.” In
re G.L., 8th Dist. Cuyahoga No. 110284, 2021-Ohio-2273, ¶ 37, citing In re M.H., 8th
Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 22. There is “a two-part test courts
must apply when deciding whether to award permanent custody to a public
children’s services agency.” Id.First Prong: R.C. 2151.414(B)(1)(a)-(e)
Under the first prong, the juvenile court must consider whether clear
and convincing evidence established at least one of the following five factors:
(a) The child is not abandoned or orphaned, has not 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 has not been in the
temporary custody of one or more public children services agencies or
private agencies for twelve or more months of a consecutive twenty-
two-month period if, 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, and the child cannot be placed
with either of the child’s parents within a reasonable time or should not
be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) 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.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
R.C. 2151.414(B)(1)(a)-(e).
“Only one of the factors must be present for the first prong of the
permanent custody analysis to be satisfied.” In re S.S., 8th Dist. Cuyahoga No.
109356, 2020-Ohio-3039, ¶ 28, citing In re L.W., 8th Dist. Cuyahoga No. 104881,
2017-Ohio-657, ¶ 28.
In this instance, the juvenile court determined that subsection (d)
was satisfied when it determined that
[t]he child[ren had] been in the temporary custody of a public children
services agency or private child placing agency under one or more
separate orders of disposition for twelve or more months of a
consecutive twenty-two-month period at the time of the permanent
custody hearing.
Mother is not disputing this finding, which is fully supported by the
record. “[P]ermanent custody may be granted to an agency where R.C.
2151.414(B)(1)(d) is met and permanent custody is in the best interest of the child.”
In re G.L., 8th Dist. Cuyahoga No. 110284, 2021-Ohio-2273, ¶ 40, citing In re
N.M.P., 160 Ohio St.3d 472, 2020-Ohio-1458, 159 N.E.3d 241, ¶ 22.
Because the juvenile court found that subsection (d) was satisfied, no
further grounds were required to grant permanent custody. Id. at ¶ 41. However,
the juvenile court also found that the children “cannot be placed with either of the
child[ren]’s parents within a reasonable time or should not be placed with either
parent,” and made findings under R.C. 2151.414(E). The juvenile court found that
despite reasonable case planning and diligent efforts by the agency following the
removal of the children from the home, “the parents have failed continuously and
repeatedly to substantially remedy the conditions causing the child[ren] to be placed
outside the home.”
Mother argues that the juvenile court abused its discretion in finding
that the children could not be returned to her within a reasonable time. Mother
argues that the juvenile court had the discretion to extend temporary custody for an
additional six months and that it was in the best interest of the children for the
juvenile court to do so.
Mother is correct that the juvenile court may extend temporary
custody if it finds that extension is (1) in the best interest of the child, (2) significant
progress has been made on the case plan, and (3) “there is reasonable cause to
believe that the child will be reunified with one of the parents or otherwise
permanently placed within the period of extension.” R.C. 2151.415(D)(1).
However, we disagree with Mother that an extension was warranted.
In the instant case, the children had been in the custody of CCDCFS for 20 months
and yet Mother had not completed case plan goals. Furthermore, the juvenile court
found that, while three out of the four children had positive interactions with
Mother, most did not wish to return to Mother’s custody. Ke.R., the oldest child,
had negative interactions with Mother and feared what would happen if she
returned home to Mother. Ka.R. had positive interactions with Mother, but likewise
was afraid of what would occur if she returned to Mother’s care. The juvenile court
further found that Mother continued to struggle with caring for all four children and
noted that K.G. had special needs due to the incident that led to him being placed
into custody.
Here, Levison’s testimony above established that although Mother
completed parenting education, Mother never applied that knowledge in her
interactions with the children; Mother only fully engaged in mental health
counseling in July 2020 after the agency filed for permanent custody; Mother was
the subject of an active investigation at the time of the permanent custody hearing;
and Mother never attended any of K.G.’s therapy sessions to learn how to manage
his special needs.
Because Mother has not made appreciable strides toward the case
plan’s objectives, there is no dispute that the children cannot be placed with Mother
within a reasonable time. Given Mother’s limited progress when the children had
been in custody for 20 months, the juvenile court did not abuse its discretion in
finding permanent custody was more appropriate than an extension of temporary
custody. Our review of the records reveals that the juvenile court’s findings under
the first prong are supported by competent and credible evidence. Finding no error
with the juvenile court’s findings under the first prong, we consider the court’s
finding under the second prong.
Second Prong: R.C. 2151.414 (D)
The second prong requires the juvenile court to assess whether it has
been established by clear and convincing evidence, that granting permanent custody
to the agency is in the best interest of the child. We review a trial court’s best-interest
determination under R.C. 2151.414(D) for an abuse of discretion. In re D.A., 8th
Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47. In this regard, “[a] trial court’s
failure to base its decision on a consideration of the best interests of the child
constitutes an abuse of discretion.” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-
Ohio-314, ¶ 60, citing In re T.W., 8th Dist. Cuyahoga No. 85845, 2005-Ohio-5446,
¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991).
R.C. 2151.414(D)(1) sets forth best-interest factors that the court must
consider when making the best-interest determination under R.C. 2151.414(D)(1),
including:
(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;
(b) The wishes of the child * * *;
(c) The custodial history of the child, [**16] 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 * * *;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
The juvenile court has considerable discretion in weighing these
factors. In re D.A. at id. “The court must consider all of the elements in R.C.
2151.414(D) as well as other relevant factors.” In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. “There is not one element that is given
greater weight than the others pursuant to the statute.” Id.Mother does not dispute the juvenile court’s best interest analysis,
noting that it is “comprehensive.” Mother argues, however, that if given more time
she could provide a more stable environment for her children.
In the journalized entry, the juvenile court found that
[t]he child’s continued residence in or return to the home of mother,
[L.R.] will be contrary to the child’s best interest.
The Court further finds that reasonable efforts were made to prevent
the removal of the child from his home, or to return the child to the
home, and to finalize the permanency plan, to wit: reunification.
Relevant services provided to the family and the reasons those services
were not successful: 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 of the
home, the parent(s) failed continuously and repeatedly to substantially
remedy the conditions that caused the child to be placed outside the
child’s home.
A review of the record supports the juvenile court’s best-interest
findings encapsulated above. The testimony established that R.C. 2151.414(D)(1)(a),
the interaction and interrelationship of the children with their parents, siblings,
relatives, and foster parents was considered. The children are in the same foster
home with P.D. and are well bonded to her and each other. Under subsection (b),
the three older children did not wish to be placed with Mother or D.R. The GAL,
Hawkins, recommended permanent custody for all four children. Under subsection
(c), the custodial history established that the children had been in the custody of
CCDCFS for 12 or more months of a consecutive 22-month period.
Under subsection (d), the need for a legally secure placement, the
record established that the children had been in custody for 20 months without
completion of the case plan. Further, the agency was not able to find relatives to
take legal custody of the children. Finally, given Mother’s lack of completion of the
case plan, the children’s need for a legally secure placement could best be achieved
by granting permanent custody to CCDCFS. Under subsection (e), whether any of
the factors in division R.C. 2151.414(E)(7) to (11) apply, we find that those sections
are inapplicable to this case.
Our review reflects that the best-interest factors that the juvenile
court must consider under the second prong were contained in the record. We
conclude the record contains competent, credible evidence from which the juvenile
court could have found the essential statutory elements for an award of permanent
custody were established. The juvenile court’s decision to grant permanent custody
to CCDCFS and the termination of Mother’s parental rights was not an abuse of
discretion.
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.
EMANUELLA D. GROVES, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR