In re T.W. ( 2021 )

[Cite as In re T.W., 2021-Ohio-2031.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE T.W., ET AL. :
: No. 109967
Minor Children :
:
[Appeal by T.S., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 17, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-17907161, AD-17907162, AD-17907163, and AD-17907164
Appearances:
Scott J. Friedman, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young and Cheryl Rice, Assistant
Prosecuting Attorneys, for appellee.
LISA B. FORBES, J.:
T.S. (“Mother”) appeals the juvenile court’s decision terminating her
parental rights and awarding permanent custody of her four minor children, T.W.,
T.S., Ta.S., and Te.S. (collectively “the Children”) to the Cuyahoga County Division
of Child and Family Services (“CCDCFS”). After reviewing the law and pertinent
facts of the case, we affirm.
I. Procedural History
CCDCFS has been involved with the Children since December 2016,
after an incident where the youngest child suffered injuries and burns under
suspicious circumstances. As a result, the Children were placed under the
temporary custody of the agency. Approximately ten months later, the Children
were reunified with Mother and CCDCFS’s role was modified from temporary
custody to protective supervision. On August 20, 2018, CCDCFS filed a motion to
modify its role from protective supervision to temporary custody of the Children.
CCDCFS argued that granting the agency temporary custody was in the Children’s
best interest because Mother stopped engaging in case plan services, failed to engage
in mental-health services, failed to ensure T.S. participated in recommended
counseling, and lacked appropriate stable housing. Temporary custody was
returned to CCDCFS on August 28, 2018.
On June 21, 2019, CCDCFS filed a motion seeking permanent custody
of the Children. The court held a hearing on September 3, 2020, and on
September 8, 2020, the court granted the motion through four separate judgment
entries, one for each child. The trial court awarded permanent custody to CCDCFS
and terminated Mother’s parental rights. In each judgment entry, the trial court
found that clear and convincing evidence had been presented demonstrating, under
R.C. 2151.414(B)(1)(a), that each child cannot and should not be placed with Mother
within a reasonable time. In reaching those conclusions, the trial court made
specific findings in relation to factors set forth in R.C. 2151.414(E). In addition, the
trial court found that clear and convincing evidence had been presented establishing
that granting CCDCFS’s motion for permanent custody was in each of the Children’s
best interest under R.C. 2151.414(D). It is from these entries that Mother appeals.
II. Standard of Review — Permanent Custody
“This reviewing court will not overturn a permanent custody order
unless the trial court has acted in a manner that is arbitrary, unreasonable or
capricious.” In re Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001-Ohio-4137,
2001 Ohio App. Lexis 3722, 6 (Aug. 23, 2001), citing Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983). In terminating a parent’s parental rights to
their child, the trial court’s decision must be supported by clear and convincing
evidence. R.C. 2151.414; In re S.C., 2018-Ohio-2523, 115 N.E.3d 813, ¶ 19 (8th Dist.);
In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48.
“Courts apply a two-pronged test when ruling on permanent custody
motions.” In re De.D., 8th Dist. Cuyahoga No. 108760, 2020-Ohio-906, ¶ 16. To
grant the motion, courts first must find that any of the factors in
R.C. 2151.414(B)(1)(a)-(e) apply, or that (B)(2) applies. Id. “Second, courts must
determine that terminating parental rights and granting permanent custody to the
agency is in the best interest of the child or children using the factors in
R.C. 2151.414(D).” Id.III. The September 3, 2020 Hearing
At the September 3, 2020 disposition hearing, CCDCFS presented
three witnesses: Christopher Walters (“Walters”), Willisa Sharp — also referred to
as Willisa Haynes — (“Sharp”), and Angela Quinn (“Quinn”). Mother presented one
witness, her sister D.E. The guardian ad litem for the Children, Helen Rhynard, (the
“GAL”) submitted a written report prior to the hearing and also provided oral
testimony. In addition, 28 exhibits were entered into evidence without objection.
The following testimony and information were presented at the hearing.
A. Christopher Walters’s Testimony
Walters testified that he is a social worker in the extended services
division at CCDCFS. He began working with the Children as their case worker in
approximately January 2019, after the Children had already been in CCDCFS’s
custody.
According to Walters, Mother’s case plan required her to obtain
housing, take parenting classes, and get mental-health treatment. In addition, at
one point there was a concern that mother may need substance-abuse treatment if
that was at the heart of her behavioral issues.
Walters testified that mother had obtained appropriate housing prior
to the hearing. There were some beds, and some blow up mattresses for the Children
to sleep on. However, Mother told Walters on several occasions that “she doesn’t
like staying in that part of public housing. She does not feel safe.” As a result,
“[s]he’s not there quite often.” Rather than meeting with Mother at her residence,
she asked Walters to meet her at other locations, such as her aunt’s house or other
family member’s houses.
Walters explained that “[Mother] was adamant that she did not want
to participate in any services.” Walters described Mother’s “unwillingness to
participate in the goals and objectives of the case plan, to interact with [him] to try
to assist her, and just her overall disdain for the system, for the Agency, for Juvenile
Court, that this had been going on for so long that she was tired.”
Walters referred Mother to several organizations for mental-health
treatment and counseling including Circle Counseling, Centers for Children and
Family, Ooma Dot, and the Court Clinic. Walters testified that when he would tell
Mother she needed to re-engage with mental-health services, Mother told him she
did not need the services because there was “nothing wrong with [her].” Mother
“refused” that service. Walters was aware that Mother did not have insurance, which
is why he referred her to an agency, Circle Counseling, that provides free counseling
services.
Walters testified that Mother was referred to parenting services at
Catholic Charities. Mother did not respond, she did not participate. Walters
discussed with Mother the need for her to do so as part of her case plan objective,
and made it clear to her why he was asking her to participate in parenting services.
At the time of the second removal, the permanency plan was for reunification, and
the case plan was designed to promote that goal. Walters explained to Mother that
CCDCFS was asking her to do certain things to get back to reunification with the
Children. According to Walters, Mother felt that “[s]he didn’t need to do [those
things]. [She’d] done them already. There’s nothing wrong with [her].”
Walters supervised Mother’s visitation with the Children before
Sharp became involved in the case and again after Sharp ceased supervision.
Though Mother made good efforts to engage with the Children and Walters
recognized that there were good visits, Walters described other visits between
Mother and the Children as “chaotic” and “dysfunctional.” On several occasions,
Mother would have outbursts while visiting the Children. Mother’s disdain for the
system would manifest during visitation. Walters explained, “her behaviors would
become angry verbally and physically aggressive, and then afterwards she would say
to me, it’s not you. I’m mad at the system.” Mother was never directly physical with
Walters but “she was physically threatening. She’d kick the trash can, would hit or
bang on the wall” and at times would scream or yell. Walters observed that the
Children’s behaviors would change because they “stemmed from [Mother’s].”
Walters testified about the Children’s behavioral issues. For example,
at one scheduled visitation that Mother did not attend, T.S. hit Walters and
threatened to run away. Another child, T.W., was diagnosed with depression and
PTSD. She is receiving counseling services, though she refuses to participate.
Walters testified that she is “very parentified. She’s used to, as she has expressed it,
being the mother sometimes of her siblings due to mom’s mental health concerns.”
Ta.S. has also been diagnosed with PTSD and depression. T.S. has some severe
anger issues and mental-health concerns. He is currently in residential treatment.
Mother has participated in some services with T.S. Te.S., the youngest, has PTSD
and depression. He is verbally and physically aggressive. All four of the Children
have been prescribed medications. Walters testified that Mother has not
demonstrated the skills necessary to manage the Children’s behavior and mental-
health concerns.
Walters stated that due to COVID-19, CCDCFS could not schedule in-
person visits but he and CCDCFS instructed Mother to communicate with the
Children virtually or by phone. Mother did communicate with T.W. and Ta.S.
regularly, and at times with T.S. However, she refused to engage with Te.S. His
caregiver would try to get Mother involved by encouraging her to call, visit, or
participate in his sporting activities, but Mother refused.
When Walters spoke with the Children, they expressed that they
would like to go home with Mother, “because my mother didn’t do anything.”
Walters estimated that his last face-to-face contact with Mother was
“before COVID-19.” In roughly May 2020, Mother refused to speak with Walters.
She conveyed that message in a text message. Since then, Walters made efforts to
reach out to Mother to inform her of meetings and of court dates. He did so by
calling her.
When asked whether any relatives were potentially available to place
the Children with, Walters explained that the agency did investigate and had looked
at T.W.’s father, D.E., and Ta.S.’s paternal grandmother for possible placement.
However, at the time of the hearing, none of the Children’s relatives were deemed
appropriate for placement of the Children.
B. Willisa Sharp’s Testimony
Sharp testified that she works as a visitation specialist for Catholic
Charities, and supervised Mother’s visitation with the Children from July 25, 2019,
until December 5, 2019. Sharp ceased supervising Mother’s visitation after Mother
missed too many scheduled visitations. The decision to terminate services was in
accordance with Catholic Charities’ policy. Sharp explained that during the time she
supervised visitation “a lot of [Mother’s] visits were negative. [She] would cope with
her anger by talking about the case with her kids.” There were occasions where
Mother would talk negatively about the Children’s fathers, which would cause
visitation to end negatively. When she observed this, Sharp tried to redirect Mother
and encouraged her to be more positive. Mother responded, “that she can talk to
her kids about whatever she wants to.” According to Sharp, these negative visits
occurred most of the time; that there were only a few positive visits.
C. Angela Quinn’s Testimony
Quinn testified that she is a program manager for Cleveland
Metropolitan Housing Authority’s Central Collaborative where Mother had
scheduled visitation with the Children from December 2018, until March 2020.
Quinn and her staff did not supervise Mother’s visitation but stated that she could
hear from her office when there was commotion going on in the visitation room.
She stated that if Mother raised her voice, either she or her staff would go in the
visitation room to see what was going on and to see if they could redirect Mother.
Quinn stated that the visits were “okay” a majority of the time. However, “every so
often” Mother would have “episodes” such that she needed to be redirected about
the tone of her voice and behavior.
On one occasion Quinn recalled, Mother had an “episode” involving
Ta.S.’s father, M.S. Both M.S. and Mother were present for the visitation. A verbal
altercation erupted between the two, with Mother accusing M.S. of attempting to
have his girlfriend beat-up Mother. Mother and M.S. had to be separated and
visitation ended early. On another occasion, Mother had an “episode” about the
bathroom. Quinn described the situation as Mother taking one child to the
bathroom and that being a “trigger” for her because according to Mother, “going to
the bathroom was how the Children first were placed into custody.” Mother became
loud and visibly upset. Quinn explained that when Mother had these episodes, she
and her staff would try to talk to her, redirect her, or let her sit in a sperate room to
calm down. She explained to Mother that the Children are impressionable and “take
on the behavior of [their] parent.” Overall, she observed that the Children looked
forward to visits with Mother, but that “sometimes the mental health behavior
[overshadowed] the visitation.”
D. D.E.’s Testimony
D.E., the Children’s aunt, testified that the Children were placed in
her home for a few months while in CCDCFS’s custody. The Children were
removed after an altercation in the home between D.E. and her boyfriend. In D.E.’s
opinion, Mother is a “great mom” and has “always been a great mom since she was
15 years old.” D.E. stated that she was not concerned with Mother’s mental health
because “when she’s around me, she’s perfectly fine.” According to D.E., Mother
had secured housing; however, Mother often stayed with her for reasons unknown
to D.E. D.E. testified that the Children told her they want to be with Mother.
E. The GAL’s Testimony
The GAL filed a written report and reiterated the contents of that
report on the record at the hearing. She started her testimony by stating, “I would
recommend the granting of the permanent custody motion filed by the Agency.” The
GAL explained:
This case needs to come to an end. It’s been ongoing for many years. I
believe I met this family in 2016 originally and since that time we’ve
been Court-involved. There’s been two removals, multiple placements.
It’s just been a very long haul for this family.
* * *
As far as mom, mom very much loves her children. * * *
Mom’s interaction with her kids when I saw her was good, but I saw her
interact with her children prior to a lot of the manifestation of the
mental health issues and the mental health issues came out in the last
I would say two years of this case.
The GAL observed that Mother “has always struggled with housing.”
Throughout her time being assigned to this case, the GAL was never able to actually
visit where Mother was living. She noted that when Mother did secure housing, she
often stayed elsewhere.
About Mother’s mental health, the GAL explained:
Mom’s mental health * * * became an issue, a prominent issue in the
later half of this case.
***
I believe that mom was experiencing some kind of mental health
episode.
On one occasion, the GAL recalled talking to Mother about the case
when Mother “broke out into a conversation about an Arab hitting her on the head
and she seemed to think that there was somebody else there and there was nobody
present. It was just [Mother] and I.” She described several other concerning
situations, including Mother calling screaming about Donald Trump; and Mother
believing she worked for Donald Trump, the CIA, and a rapper.
When the GAL was testifying about Mother’s Donald Trump
comments, Mother interrupted the court proceedings and was admonished by the
court to remain quiet. She also had outbursts during Walters’s testimony. During
CCDCFS’s closing arguments, the court summoned a deputy because Mother would
not return to her seat and was exclaiming, “I’ve been trying for five years. Of course
I want to die.”
The GAL ultimately stated “[a]t this point I don’t see how any of these
parents could be reunified with these children and then address the children’s needs
because they haven’t addressed their own needs.” With regard to behavioral issues
with the Children, the GAL’s report and testimony explained that T.S. has been
expelled from school, been moved between several different placements, been
placed in residential care, and various services have been put in place to address his
needs. T.S. was removed from his foster home placement and placed into residential
care after he “pulled out a knife and threatened to kill his caregiver.” He has been
diagnosed with PTSD and ODD. T.W. “has a history of PTSD and defiant behavior.”
In 2019, she “AWOL’d” from her foster home. T.W. has refused to participate in
counseling. Ta.S. has also struggled. She has been diagnosed with PTSD and
ADHD. Ta.S. has also demonstrated behaviors of self-harm and made threats to
teachers, bus drivers, and her foster mother. However, being placed in a foster home
with her sister, T.W., has helped with these behaviors. Te.S. also demonstrated
some behavioral issues and has been diagnosed with PTSD. T.S., Ta.S., and Te.S. all
take medications to address these issues.
Finally, the GAL testified that the Children had recently expressed
that they wished to return to Mother’s care but have since “flip flopped” and now are
indifferent to whether or not they return to Mother’s care.
IV. Law and Analysis
A. First Assignment of Error
In Mother’s first assignment of error, she argues that the trial court’s
decision terminating her parental rights is against the manifest weight of the
evidence. Upon review of all of the testimony and evidence presented in the case at
bar, we find that the juvenile court’s decision terminating Mother’s parental rights
was not arbitrary, unreasonable, or capricious and was supported by clear and
convincing evidence.
1. R.C. 2151.414(B)(1) Factors
Under the two-prong analysis, the court first decides whether any of
the conditions under R.C. 2151.414(B)(1) or (2) apply. If any of the conditions
identified in subsection (1)(a)-(e) apply, that provision has been satisfied.
Here, the juvenile court made findings for each child under
subsection (B)(1)(a), finding that each of the Children “has not been in the
temporary custody of [CCDCFS] for twelve or more months of a consecutive twenty-
two-month period * * * 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.”
Here, there is no dispute that CCDCFS filed its motion for permanent custody less
than a year after the Children had been in CCDCFS custody. CCDCFS filed its
motion on June 21, 2019. At that time, each child had been in CCDCFS’s custody
since August 28, 2018, not quite ten months.
To assess whether the Children “cannot be placed with either parent
within a reasonable time or should not be placed with either parent,” which is the
second component of subsection (B)(1)(a), the juvenile court made findings guided
by division (E), which delineates factors a court may consider in making that
determination.
Under subsection (E)(1), for each of the Children, the court found that
Mother “has failed continuously and repeatedly to substantially remedy the
conditions causing the [Children] to be placed outside the [Children’s] home.”
Under subsection (E)(2), for each of the Children, the court found
that “Mother has a chronic emotional illness that is so severe that it makes her
unable to provide an adequate permanent home for the [Children] at the present
time and, as anticipated, within one year after the Court holds a hearing in this
matter.”
Under subsection (E)(3), for each of the Children, the court found
that “Mother has neglected the [Children] between the date of the original complaint
was filed and the date of the filing of this motion by [her] failure to support the
[Children].”
Under subsections (E)(4) and (14), for each of the Children, the court
found that Mother “has demonstrated a lack of commitment towards the [Children]
by failing to regularly support and by her other actions, has shown an unwillingness
to provide an adequate permanent home for the [Children].” Further, the court
found that Mother was unwilling to “successfully complete a case plan so she can
provide care for the [Children].”
Each of these findings is supported by clear and convincing evidence
in the record. The Children were reunified with Mother after a previous removal
and were subsequently removed again because Mother was unable to provide them
with appropriate care. A case plan was established to address her parenting, mental
health, possible substance abuse, and housing. The trial court heard testimony that
Mother failed or refused to engage in case plan services and had a “disdain for the
system” when her case worker tried to engage with her. Further, Mother refused
mental-health services repeatedly despite numerous referrals. The court also heard
testimony about various behaviors and outbursts by Mother. While testimony was
given that Mother has secured housing, the court also heard testimony that Mother
refuses to stay there and does not feel safe there.
B. R.C. 2151.414(D)(2) Best-Interest Factors
Having found that clear and convincing evidence had been presented
on the 2151.414(B)(1)(a) factors, the juvenile court turned to assessing whether an
award of permanent custody to the agency would be in the best interest of the
Children. The juvenile court made findings consistent with granting permanent
custody under R.C. 2151.414(D)(2), which states if all four of its subsections apply,
“permanent custody is in the best interest of the child, and the court shall commit
the child to the permanent custody of a public children services agency or private
child placing agency.”
Subsection (a) looks to whether one or more of the factors in division
(E) of R.C. 2151.414 exist “and that the child cannot be placed with one of the child’s
parents within a reasonable time or should not be placed with either parent.” As
analyzed above, the juvenile court found that evidence had been presented
supporting five of the division (E) factors.
Subsection (b) directed the juvenile court to determine if the Children
had been in agency custody for two years or longer and, therefore, no longer
qualified for temporary custody pursuant to R.C. 2151.415(D). Revised Code
Section 2151.415(D)(4) states:
the court shall not order an existing temporary custody order to
continue beyond two years after the date on which the complaint was
filed or the child was first placed into shelter care, whichever date is
earlier, regardless of whether any extensions have been previously
ordered pursuant to division (D) of this section.
Here, the juvenile court found that the Children had been in agency custody for over
two years at the time it entered judgment. The Children had been in CCDCFS’s
temporary custody since August 28, 2018, the hearing was held on September 3,
2020, and judgment was entered on September 8, 2020.
Subsection (c) directed the court to determine if the child did not
meet the requirements for a planned permanent living arrangement pursuant to
R.C. 2151.353(A)(5). If they do not meet the requirements, then this element is
satisfied. Here, CCDCFS did not request for the Children to be placed in a planned
permanent living arrangement and there is no evidence that any of the requirements
listed in the statute were met.
Finally, subsection (d) directed the court to determine whether, “prior
to the dispositional hearing, no relative or other interested person has filed or been
identified in a motion for legal custody of the child.” The record does not indicate
any such motion was filed. Further, testimony at the hearing supports the court’s
finding. The Children were placed with their maternal aunt, D.E., at one point but
were eventually removed after an altercation in her home. Additionally, Walters
testified that CCDCFS had looked into several family members, but no one was
deemed suitable for placement.
Upon review, we find that the testimony presented at the disposition
hearing contained clear and convincing evidence to support the juvenile court’s
findings under R.C. 2151.414. Determining under R.C. 2151.414(B)(1)(a) that the
Children could not or should not be placed with Mother is supported by testimony
from Walters, Sharp, Quinn, D.E. and the GAL, and the court’s findings under
R.C. 2151.414(E)(1), (2), (3), (4), and (14). Determining under R.C. 2151.414(D)(2)
that permanent custody to CCDCFS is in the Children’s best interest is supported by
the testimony presented by Walters, D.E., and the GAL, and the court’s findings that
Mother has neglected the Children and continuously failed to remedy the issues that
caused the Children to be placed outside of the home by, among other things, failing
to provide adequate permanent housing.
The juvenile court’s termination of Mother’s parental rights and
award of permanent custody of the Children to CCDCFS is supported by clear and
convincing evidence in the record. Mother’s first assignment of error is overruled.
V. Second Assignment of Error
Mother’s second assignment of error argues that the court erred in
finding that each child has been “in the agency’s custody for two years and no longer
qualifies for temporary custody * * *.” Mother concedes that under “normal
circumstances” the trial court’s conclusion is correct but argues that pursuant to the
Supreme Court of Ohio’s tolling order, she should have been given an extra four
months to comply with the agency’s case plan. We disagree.
The Supreme Court of Ohio’s tolling order only tolls “time
requirements imposed by the rules of the Court * * *.” In re Tolling of Time
Requirements Imposed by Rules Promulgated by the Supreme Court & Use of
Technology, 158 Ohio St.3d 1447, 1448, 2020-Ohio-1166, 141 N.E.3d 974. Rules of
the court include: the Ohio Code of Judicial Conduct, the Ohio Rules of Appellate
Procedure, the Ohio Rules of Civil Procedure, the Ohio Rules of Criminal Procedure,
the Ohio Rules of Evidence, the Ohio Rules of Juvenile Procedure, the Ohio Rules of
Professional Conduct, etc. The tolling order does not affect time requirements
imposed by statute. Here, R.C. 2151.353(G) dictates that an order of temporary
custody shall not be extended by the court after two years. The two-year time limit
is not a rule imposed by the Supreme Court of Ohio. Thus, it is unaffected by the
tolling order.
Therefore, Mother’s second assignment of error is without merit and
is overruled.
Having overruled both assignments of error, the judgment of the trial
court is 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 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.
LISA B. FORBES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCUR