In re W.A.J. , 2014 Ohio 604 ( 2014 )

[Cite as In re W.A.J., 2014-Ohio-604.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99813
IN RE: W.A.J., JR. and A.P.
Minor Children
[Appeal by Mother, R.P.]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 09917803 and AD 09917809
BEFORE: Stewart, J., S. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEY FOR APPELLANT MOTHER
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY DIVISION OF
CHILDREN AND FAMILY SERVICES
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Pamela A. Hawkins
Assistant County Prosecutor
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, OH 44115
ATTORNEY FOR CHILDREN
Brian W. Sharkin
Law Office of Brian Sharkin
P.O. Box 770824
Lakewood, OH 44107
GUARDIAN AD LITEM FOR CHILDREN
Daniel J. Bartos
Bartos & Bartos, L.P.A.
20220 Center Ridge Road, Suite 320
Rocky River, OH 44116
GUARDIAN AD LITEM FOR MOTHER
Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, OH 44131
MELODY J. STEWART, J.:
{¶1} The court terminated appellant-mother R.P.’s custody of two of her children,
W.A.J., Jr., and A.P., and granted legal custody of the children to a person who is
unrelated to them, but whom they consider to be an aunt. The mother complains the
court failed to articulate a sufficient evidentiary basis for the decision to place the
children with the surrogate aunt and that the court’s decision was not in the best interest
of the children.
I
{¶2} This appeal involves the loss of legal custody under R.C. 2151.353(A)(1)(3)
rather than the termination of parental rights. In In re G.M., 8th Dist. Cuyahoga No.
95410, 2011-Ohio-4090, we stated the following about the differences between legal
custody and the termination of parental rights:
[the loss of] legal custody is significantly different than the termination of
parental rights — despite losing legal custody of a child, the parents of the
child retain residual parental rights, privileges, and responsibilities. R.C.
2151.353(A)(3)(c). For this reason, we apply the less restrictive
“preponderance of the evidence” standard of appellate review to the court’s
factual findings. In re S.E., 8th Dist. Cuyahoga No. 96031,
2011-Ohio-2042, ¶14, citing In re Nice, 141 Ohio App.3d 445, 455,
2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.). However, when considering
the court’s ultimate decision on whether the facts as determined would
make it in the child’s best interests to be placed in legal custody, we apply
the abuse of discretion standard. In re B.H., 8th Dist. Cuyahoga No.
95794, 2011-Ohio-1967, ¶10.
Id. at ¶ 14.
{¶3} R.C. 2151.353(A)(3) allows the court to award legal custody of a child who
has been adjudicated abused, neglected, or dependent, to any person who, prior to the
dispositional hearing, filed a motion requesting legal custody of the child. Apart from
the requirement that the child be previously adjudicated as abused, neglected, or
dependent, the court’s authority to award legal custody under R.C. 2151.353(A)(3) is
limited only by the best interests of the child (assuming the person seeking legal custody
has complied with the statutory prerequisites).
{¶4} The mother makes no argument that the prerequisites for an award of legal
custody were not met. The children were declared neglected and dependent in
September 2009 and placed in the temporary custody of appellee Cuyahoga County
Division of Children and Family Services (the “agency”). The neglect and dependency
finding was based on allegations that the mother had for years permitted one of her five
children to sexually molest another one of her children (those children were the subject of
a separate custody proceeding). The mother was subsequently convicted of attempted
child endangering. With the exception of the child who committed the acts of
molestation, the four remaining children were placed with the aunt and remained with her
until the time of the hearing.
{¶5} Additionally, the complaint for temporary custody charged that A.P. suffered
severe asthma attacks, caused in part by the mother’s smoking in the house, yet the
mother did not consistently follow up with the child’s medical care. Finally, the agency
alleged that the mother had emotional issues, including a major depressive disorder with a
psychotic component. These facts were sufficient to establish that the children were
neglected and dependent as a predicate for the agency to seek legal custody.
II
{¶6} To resolve the question of whether granting legal custody would be in the
best interest of the children, the court made factual findings in which it concluded that the
mother had, despite diligent case planning by the agency toward the goal of reunification,
failed to remedy the problems that caused the children to be removed from her. The
court found that the mother had not substantially complied with the case plan and failed to
demonstrate a commitment to the children by providing them with a permanent home.
The mother contests these findings, particularly her failure to show substantial
compliance with the case plan, as being unsupported by the evidence.
A
{¶7} To the extent the court’s findings were premised on factual determinations,
we review those facts under a preponderance of the evidence standard. In re S.E., 8th
Dist. Cuyahoga No. 96031, 2011-Ohio-2042, ¶ 14, citing In re Nice, 141 Ohio App.3d
445, 455, 2001-Ohio-3214, 751 N.E.2d 552 (7th Dist.).
1
{¶8} The mother was found guilty in a criminal child endangerment prosecution
relating to her failure to stop the molestation of one of her children. She served one year
in prison, during which time the children were living with the aunt. The case plan
adopted by the agency required the mother to establish stable housing upon the mother’s
release from prison. She obtained housing and showed her case worker a lease bearing
her name and the name of another person as the tenants. The agency told the mother that
if she was living with someone, that person would have to undergo a background check.
The mother insisted that she was living alone and the other person signed the lease as an
accommodation because nobody would rent to her.
{¶9} Questions about the mother’s living arrangement remained when a case
worker discovered that the mother was in fact living with someone else and that person’s
children. The case worker said that the mother’s house was usually neat and clean, but
that on a later visit to the house she found it in such disarray that it looked as though it
had been “tossed” and that she found school books and homework belonging to other
children. The case worker testified that two of the mother’s children independently
verified to her that others were living with them. The mother continued to deny that she
was sharing her home with another family and called her own children “liars.” The case
worker believed it was the mother who was being untruthful.
2
{¶10} The case plan also expressed concerns regarding the mother’s physical and
mental health.
{¶11} The mother’s health became a growing concern for the agency after she
began having seizures following her release from prison. These seizures sometimes
required the mother’s hospitalization and were affecting her visitation schedule with the
children. The case worker was unable to verify the types of medication prescribed to the
mother, and the mother took the case worker’s inquiries about her physical condition as a
form of “gossiping.” At the same time, in March 2012, the mother was receiving
medical treatment relating to her kidneys and blood work performed in conjunction with
that treatment tested positive for marijuana. The case worker attempted to have the
mother submit to a drug screening, but the mother suffered a seizure while waiting to
submit a sample and was hospitalized.
{¶12} The case worker testified that in addition to the mother’s physical health,
there were concerns about her mental health status. The mother qualified for and
received Social Security Disability benefits, but told the case worker that she did not
know why she was receiving those benefits. This lack of knowledge was despite
entering a plea of not guilty by reason of insanity during her trial for child endangerment
relating to the molestation of one of her children. The case worker did verify that the
mother was taking antipsychotic medication. However, the mother failed to provide her
case worker with a progress note that would show whether she had been compliant with
her mental health services.
3
{¶13} Most recent to the hearing were new revelations of the mother’s drug use.
{¶14} Questions about the mother’s drug use began in May 2012, after a new case
worker learned that the mother failed a drug screening by testing positive for marijuana
and PCP. The agency referred the mother for a drug and alcohol assessment, but the
mother could not verify her completion of the program. In September 2012, at the time
of the hearing before a magistrate on the agency’s motion for legal custody, the mother
provided the case worker with a new assessment that showed she was still testing positive
for PCP. The agency also learned that the drug test sample submitted by the mother may
have been diluted, suggesting that the mother tampered with the sample to avoid a
positive result. This new test result caused the agency to recommend that the mother
enter an outpatient drug treatment program. The mother was to begin outpatient
treatment after the hearing concluded.
4
{¶15} Finally, the court heard evidence relating to the mother’s lack of parenting
skills.
{¶16} The mother’s parenting skills were plainly an issue in light of her conviction
for attempted child endangering. The facts of that criminal case, which led the agency to
seek emergency temporary custody of the children, showed that the mother was aware
that one of her children had repeatedly sexually molested another one of her children, but
did nothing to stop it.
{¶17} After the mother’s release from prison, concerns about her parenting skills
were raised by a case worker and a psychologist who treated A.P. These witnesses
collectively expressed their concerns that the mother was too lenient with the children.
Both W.A.J., Jr., and A.P. said that they wished to remain with the mother because they
could “go outside and play more when they want to, eat more junk food, stay up a little bit
later.” The psychologist testified to her concerns that the mother failed to provide an
environment with “limits, rules, and structure” and that she always says “yes” to the
children.
B
{¶18} The mother did not testify or offer any evidence at the hearing. A case
worker testified that the mother completed a number of parenting and self-esteem classes
while in prison, and the mother premised her case primarily on that evidence to prove that
she substantially complied with the case plan. This argument, however, misconstrues
completion of a case plan as an automatic path to reunification.
{¶19} The successful completion 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.). Indeed, “[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.” Id.{¶20} The above principles presume completion of a case plan, and it is not at all
clear that the mother completed the objectives set by the case plan. For example, the
agency set a goal that the mother obtain stable housing. The word “stable” means more
than just the permanency of the dwelling itself — it also refers to the conditions inside the
home. The mother did obtain housing, but the evidence showed that she was living with
another family who had not been vetted by the agency. A case worker noted that the
mother normally kept a neat house when she and her family lived alone, but that when the
mother shared a house with another family, the house was in disarray.
{¶21} Additionally, the mother’s completion of parenting skills courses did not
mean that she proved her competency to parent. As previously noted, the mother’s lack
of discipline gave the psychologist reason to be concerned about her ability to put limits
on the children. And the children posed certain difficulties beyond the problems posed
in normal child-rearing: A.P. had been labeled as having a serious emotional disturbance
and was receiving counseling for “ongoing behavioral issues.” So despite completing
parenting courses, the mother had not satisfied the court that she fulfilled the goals of her
case plan and removed the conditions that caused the children to be removed from her
home.
III
{¶22} The final issue is whether the court abused its discretion by finding that it
would be in the children’s best interest to be placed in the aunt’s legal custody.
{¶23} R.C. 2151.353 does not provide factors that the court should consider to
determine the child’s best interest in a request for legal custody. In re E.A., 8th Dist.
Cuyahoga No. 99065, 2013-Ohio-1193, ¶ 13. Some courts have employed the best
interest factors set forth in R.C. 2151.414(D) that must be considered before a court can
terminate parental rights; other courts have considered the best interest factors set forth in
R.C. 3109.04(F) that must be considered before allocating parental rights in domestic
relations child custody cases. In In re G.M., we found that principles of statutory
construction meant that the absence of best interest factors in R.C. 2151.353 compelled
the presumption that “the legislature did not intend to require the consideration of certain
factors as a predicate for granting legal custody.” In re G.M., 8th Dist. Cuyahoga No.
95410, 2011-Ohio-4090, at ¶ 16. We found that the courts were free to consider the best
interest factors set forth in other statutes to guide their discretion in determining legal
custody issues, but were not compelled to consider those statutes. Id.{¶24} Given the court’s factual findings, we cannot say that its determination that
it would be in the best interest of the children to be placed in the legal custody of the aunt
was so arbitrary and capricious that it constituted an abuse of discretion. The mother’s
refusal to stop ongoing sexual molestation in her home was a grave parenting failure.
Although she completed a number of parenting courses while in prison, the mother
displayed poor judgment by living with another family without getting prior approval
from the agency. She then showed mendacity when confronted with that fact and
accused her own children of lying about it.
{¶25} Perhaps most troubling was the mother’s drug use at a time when she was
about to go to court to get back her children. Compounding the seriousness of her drug
use was her documented mental and physical health issues: the mother was taking
antipsychotic medication and suffered from random seizures. Any one of these factors
would have been cause for concern; combined, the drug, mental, and physical issues were
so serious that they could place the children in physical jeopardy.
{¶26} It is true that the children wished to remain with the mother, but the court
heard evidence suggesting that this was because the mother was so lax with her
discipline. One of the children had significant behavioral issues and would likely benefit
from a home environment that was more structured than the one the mother was
providing. In any event, the children had lived with the aunt for well over two years at
the time of the hearing, were adjusted to living with her, and were not experiencing any
problems with the aunt. What is more, the aunt had been, and continued to be,
committed to integrating the mother into the children’s lives. The aunt expressed her
desire that the mother continue to have access to the children, so even though the mother
was losing legal custody, she was not losing all contact with her children.
{¶27} We therefore find that the court did not abuse its discretion by finding it
would be in the best interest of the children to be placed in the legal custody of the aunt.
{¶28} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas — 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.
MELODY J. STEWART, JUDGE
SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR