In re K.V. ( 2022 )

[Cite as In re K.V., 2022-Ohio-4290.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.V., ET AL. :
: No. 111668
A Minor Child :
:
[Appeal by Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 1, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-20-910497, AD-20-910498, and AD-20-910499
Appearances:
Gregory T. Stralka, for Mother.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MARY J. BOYLE, J.:
In this consolidated appeal, appellant-mother (“Mother”), appeals
from the juvenile court order awarding permanent custody of her children, K.V.,
M.V., and G.G., to the Cuyahoga County Division of Children and Family Services
(“CCDCFS”). Mother argues the trial court abused its discretion when it denied her
motion for continuance and CCDCFS failed to present sufficient evidence to
establish a basis upon which permanent custody could be granted. For the reasons
set forth below, we affirm.
I. Facts and Procedural History
On December 4, 2020, CCDCFS filed a complaint in juvenile court,
alleging that K.V. (d.o.b. 12/07/2015), M.V. (d.o.b. 12/28/2016), G.G. (04/19/2018)
(collectively, “the children”), and two other siblings, J.G. and S.G. (not the subject
of this appeal) were abused, neglected, and dependent and requested
predispositional temporary custody. The complaint alleges that C.V. (“Father”), the
alleged father of K.V., M.V. and G.G., was arrested. Upon his arrest, a gun and illegal
drugs were found in Father’s possession. Father also has multiple convictions for
drug-related offenses. The complaint further alleges that Mother fails to provide for
the children’s basic needs on a consistent basis. Mother regularly leaves the children
home for extended periods of time without an appropriate plan of care for the
children, and K.V was previously adjudicated delinquent. The complaint further
alleges that Mother was previously convicted of drug possession and child
endangering and G.G. was the victim of child endangering.
After a hearing held on December 15, 2020, the juvenile court ordered
that the children be placed in the predispositional temporary custody of CCDCFS.
The court held a hearing on the complaint for temporary custody on March 1, 2021.
After the conclusion of this hearing, the court adjudicated the children abused,
neglected, and dependent, and they were committed to the temporary custody of
CCDCFS. Within the adjudication order, the court found “that the allegations of the
Complaint, as amended by the Court based on the testimony presented, have been
proven by clear and convincing evidence. The amended complaint is attached to the
order as Exhibit A and marked as Court’s Exhibit A.” (Judgment Entry, Mar. 4,
2021.) The allegations included facts relating to Mother’s failure to provide for the
children’s educational and basic needs, the children’s prior adjudication due to
Mother’s substance abuse issues, Mother’s prior convictions for drug possession and
child endangering, and the discovery of illegal drugs in Mother’s purse and home.
The court also approved and attached the case plan, which included
objectives relating to Mother’s substance abuse and parenting issues. The case plan
reflects that Mother “has a history of substance abuse, specifically cocaine and
amphetamines. She tested positive recently for both. Her drug use has interfered
with her ability to provide care to her children on a daily basis.” (Judgment Entry,
Mar. 4, 2021.) The case plan required Mother to undergo a drug and alcohol
assessment, successfully complete any recommended treatment and aftercare, sign
a release of information, submit to random screens, and successfully complete a
parenting program approved by CCDCFS.
On September 23, 2021, CCDCFS filed a motion to modify temporary
custody to permanent custody. The affidavit attached in support of the motion
indicated that Mother “ha[d] not engaged in case plan services,” “has only had
limited communication with the assigned Agency worker,” and “ha[d] unresolved
charges of Possession of Meth * * * and Attempted Possession of Drugs.”
On May 24, 2022, the matter proceeded to trial on CCDCFS’s
permanent custody motion. Prior to the start of trial, Mother’s attorney requested
a continuance, stating,
I respectfully request a continuance of today’s hearing. This is my first
meeting with my client in quite some time. She informs me of some
progress that she has made on the case plan and since the older two
children, there already is an extension of temporary custody, I
respectfully request the same opportunity regarding the three younger
children.
(May 24, 2022, tr. 5.) The trial court noted that the extension for the two older
children was based on their father’s progress with his case plan and not due to
Mother’s situation. (May 24, 2022, tr. 5-6.) CCDCFS objected to the continuance
request, stating that
this [permanent custody] motion was filed in September of 2021.
We’ve got them pending for roughly eight months. In that time, mother
has not appeared.
While I understand counsel’s desires to talk to her client and see where
her client has been. The fact remains it’s been eight months and she
has been missing from this case. She has been for several months
missing from the purview of the Agency. We’ve made several attempts
to contact her and have been unsuccessful. So we are prepared to move
forward today, your Honor.
(May 24, 2022, tr. 6.)
The trial court stated that it had scheduled numerous hearings on the
permanent custody motion dating back to before January “to allow the mother an
opportunity to show up. Every time we have come in [Mother’s trial counsel] has
informed the Court of all of the very numerous efforts that she has made to try to
contact her client.” (May 24, 2022, tr. 7.) The court then denied the continuance
request. Father’s attorney then advised the court that Father is currently
incarcerated, has pending federal charges, and anticipates a prison sentence of at
least ten years. (May 24, 2022, tr. 8.) Father’s attorney further advised that Father
is in agreement with permanent custody to CCDCFS. (May 24, 2022, tr. 8.)
At trial, testimony was first received from CCDCFS child protection
specialist Kenneth Orlowski (“Orlowski”). Orlowski testified that the children first
came to the attention of CCDCFS in 2020 due to educational neglect. (May 24,
2022, tr. 16-17.) He stated that “from March 9th of 2020 through mid September of
2020 [the children] had not attended school at all.” (May 24, 2022, tr. 17.) The
initial investigation revealed additional concerns relating to drug charges, gun
charges, and deplorable housing. (May 24, 2022, tr. 17.) Orlowski further testified
that J.G., S.G., and K.V. had previously been in agency custody due to similar issues
involving parenting and substance abuse, as well as housing, domestic violence, and
anger management. (May 24, 2022, tr. 20-22.)
After the children were ordered placed in agency custody, a case plan
was developed and implemented to promote the permanency plan of reunification.
(May 24, 2022, tr. 20-22.) CCDCFS referred Mother to services through Recovery
Resources to address her parenting issues and had completed all but one class before
she became unlocatable. (May 24, 2022, tr. 22-23.) The parenting program was
willing to have her come in and complete her remaining class to finish the program
in early December 2021, but indicated that if she failed to appear as scheduled, she
would have to start over with the service. (May 24, 2022, tr. 23.) CCDCFS was
unable to locate Mother at that time, and the parenting objective remained
incomplete due to her failure to complete all of the required parenting classes.
(May 24, 2022, tr. 23-24.) Orlowski explained, “[W]hen we were trying to get in
touch with mother it was really hard to actually establish any kind of
communication. Phone numbers would change and although sometimes mother
would make visits to the children, it was often very difficult to set up any kind of
services.” (May 24, 2022, tr. 24.) Orlowski further explained that he attempted to
arrange Mother’s services through Recovery Resources because he was aware that
Mother
had an outstanding warrant and I knew that at the time recovery
resources would potentially do her classes through the prison and then
they could also do that with the substance treatment because I’ve had
clients in the past where they’ve done both of those while I’ve had a
client that has been incarcerated and this way we could keep all of the
services under one roof at the time so that mother could sort out her
warrant and be able to do her services at the same time.
(May 24, 2022, tr. 24-25.)
Orlowski referred Mother to Recovery Resources for substance abuse
services as well. (May 24, 2022, tr. 25.) He urged her to engage with them, and
Mother completed an assessment, but then never returned to complete the
recommended treatment or to submit to drug screening as requested. (May 24,
2022, tr. 25-26.) Orlowski requested screening from Mother whenever he met with
her but noted that “she would disappear for months at a time[.]” (May 24, 2022, tr.
26.) Other than an initial failed attempt to screen, Mother never submitted to any
of the other screens as requested. (May 24, 2022, tr. 25-26.) Aside from her failure
to address her substance abuse issues, CCDCFS’s
biggest concern [was] that mother would disappear. She was gone
from mid December through either late April or early May where she
hadn’t seen the kids, she hadn’t talked to the maternal grandmother
who had the kids, she hadn’t been in contact with the Agency. And to
be gone for several months at a time was concerning.
***
In addition there had been several criminal run-ins in the past. * * *
[M]other had been incarcerated and has been working on trying to get
her warrants worked out, but she still does have outstanding criminal
charges.
(May 24, 2022, tr. 27.)
Despite repeated efforts to contact Mother by phone, text, and
through her own mother, Orlowski has not been able to speak with Mother and had
not seen her from December of 2021, until the day of trial on May 24, 2022.
(May 24, 2022, tr. 29.) Mother also had outstanding criminal charges at the time
of trial related to failure to appear in court and attempted drug possession, for which
there was an outstanding warrant for Mother’s arrest. (May 24, 2022, tr. 27-28.)
CCDCFS set up visitation so that Mother could have weekly visits with
the children at the maternal grandmother’s house. (May 24, 2022, tr. 32.) When
Mother did attend these visits, “she tended to be good with the kids. She paid
attention to them.” (May 24, 2022, tr. 32.) Orlowski testified that Mother’s
attendance at visitation with the children was sporadic and, at the time of trial in
May 2022, she had not seen the children at all since December 2021. (May 24, 2022,
tr. 32-34.)
On cross-examination, Orlowski testified that all three children could
go to interested parties or relatives through adoption. (May 24, 2022, tr. 38.) He
further testified that the children have been in CCDCFS custody since December 15,
2020, and Mother
had had a parenting class previously when she had lost custody before
now and regained the children and although she regained the children,
she also retained her substance issue and although she had nearly
finished her parenting class, she was still picking up legal charges and
still abusing substances[.]
(May 24, 2022, tr. 43-44.) Mother also failed to demonstrate the ability to obtain
and maintain appropriate housing. (May 24, 2022, tr. 43-44.)
Testimony was next received from the children’s maternal
grandmother. She testified that the children would be brought to her house by their
foster mother and that they visited with their maternal grandparents and their two
older siblings, J.G. and S.G, who were at her house. (May 24, 2022, tr. 48-49, 56.)
These visits were one day a week. (May 24, 2022, tr. 49-50.) The children, who
were four, five, and six years old at the time of trial, engaged with the family in a
loving manner during visits. (May 24, 2022, tr. 50.) She indicated that Mother was
attending the weekly visits but stopped attending in December 2021 and had not
been back to visit since then. (May 24, 2022, tr. 50-51.) She acknowledged that
when Mother is “good, she’s a phenomenal mommy, [and does] crafts, breakfast,
lunch and dinner. She does everything by the book. When she falters, she goes
down, she needs help right now and she can do it.” (May 24, 2022, tr. 53.) Maternal
grandmother further testified about Mother’s ability to care for the children, stating
that “[s]he’s very good when she’s good. When she’s not, forget it, you know, and I
have to take care of them.” (May 24, 2022, tr. 55.) Maternal grandmother testified
that Mother needs “detox and rehab.” (May 24, 2022, tr. 54.) She testified to
Mother’s substance abuse issues and failure to engage in treatment, stating “I think
[Mother] just denied what she was doing. She was hiding it and we all knew, but she
hides it and I just think [it’s] her mindset. I just can tell when she pleads inside that
she wants out of this hole and she wants out. She’s not enjoying her life right now
at all.” (May 24, 2022, tr. 59.)
The children’s guardian ad litem (“GAL”) stated on the record his
recommendation in favor of permanent custody, noting that Mother had not made
any significant progress on her case plan objectives and that “there’s no reason for
an extension of temporary custody” because Mother “hasn’t made any significant
progress to warrant that extension.” (May 24, 2022, tr. 61-62.) The GAL concluded
that “[w]e can’t wait for [Mother] to get her act together. These kids need
permanency.” (May 24, 2022, tr. 62.)
After the conclusion of trial, the court issued a judgment entry for
each of the children in which it terminated parental rights and found by clear and
convincing evidence that it is in the best interests of the children to be placed in the
permanent custody of CCDCFS. The court further found that children cannot be
placed with either of their parents within a reasonable period of time or should not
be placed with either parent.
It is from this order that Mother appeals, raising the following two
assignments of error for review:
Assignment of Error No. 1: The trial court’s denial of [Mother’s]
request for a continuance was an abuse of discretion since it effectively
denied the [Mother’s] right to counsel.
Assignment of Error No. 2: [CCDCFS] failed to present sufficient
evidence to establish a basis upon which permanent custody could be
granted.
II. Law and Analysis
A. Motion for Continuance
The decision to grant or deny a motion for a continuance rests within
the broad discretion of the trial court. State v. Froman, 162 Ohio St.3d 435, 2020-
Ohio-4523, 165 N.E.3d 1198, ¶ 91, citing State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078, syllabus (1981). This broad discretion is also afforded to the trial court
in a permanent custody hearing. In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-
Ohio-3373, ¶ 25.
We recognize that “[b]iological parents have a constitutionally
protected right to be present at a permanent custody hearing.” In re A.W. at ¶ 25,
citing In re Sears, 10th Dist. Franklin No. 01AP-715, 2002-Ohio-368, ¶ 11. ““‘There
are no mechanical tests for deciding when a denial of a continuance is so arbitrary
as to violate due process. The answer must be found in the circumstances present
in every case, particularly in the reasons presented to the trial judge at the time the
request is denied.”’” Id. at ¶ 26, quoting Unger at 67, quoting Ungar v. Sarafite, 376
U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 269 (1964). Factors to consider include:
“[T]he length of the delay requested; whether other continuances have
been requested and received, the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived;
whether the defendant contributed to the circumstance which gives rise
to the request for a continuance; and other relevant factors, depending
on the unique facts of each case.”
In re A.W. at ¶ 26, quoting Unger at 67-68.
In addition, Juv.R. 23 provides that “[c]ontinuances shall be granted
only when imperative to secure fair treatment for the parties” and Loc.R. 35(C) of
the Cuyahoga County Court of Common Pleas, Juvenile Division provides:
No case will be continued on the day of trial or hearing except for good
cause shown, which cause was not known to the party or counsel prior
to the date of trial or hearing, and provided that the party and/or
counsel have used diligence to be ready for trial and have notified or
made diligent efforts to notify the opposing party or counsel as soon as
he/she became aware of the necessity to request a postponement. This
rule may not be waived by consent of counsel.
“Because the termination of parental rights has been described as the
family law equivalent of the death penalty in a criminal case, courts have required
that ‘great care be taken to ensure that due process is afforded parents in parental
termination proceedings.’’’ In re A.W., 2020-Ohio-3373, at ¶ 29, quoting In the
Matter of Rachal, 6th Dist. Lucas No. L-02-1306, 2003-Ohio-1041, ¶ 12. The parent
facing termination of parental rights, however, “‘must exhibit cooperation and must
communicate with counsel and with the court in order to have standing to argue that
due process was not followed in a termination proceeding.’” Id., quoting In re Q.G.,
170 Ohio App.3d 609, 2007-Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.).
Here, Mother argues the trial court’s denial of her request for a
continuance was an abuse of discretion since it effectively denied her the right to
counsel. Mother’s counsel requested a continuance because Mother disappeared for
a period of time and counsel needed an opportunity to prepare the case. Mother
argues that since this was the first requested trial continuance and continuances are
given greater consideration in permanent custody cases, the denial of the
continuance was an abuse of discretion.
The record reflects that while Mother did appear for trial, her
counsel’s statement at the beginning of the proceedings made clear that Mother had
not kept in regular contact with her attorney prior to the trial date. Mother’s
appearance at trial was the first contact she had with counsel in “some time.”
Mother’s counsel stated that “[t]his is my first meeting with my client in quite some
time. She informs me of some progress that she had made on the case plan and since
the older two children, there already is an extension of temporary custody, I
respectfully request the same opportunity regarding the three younger children.”
(May 24, 2021, tr. 5). The trial court noted, however, that the extension for the two
older children was based on their father’s progress with his case plan, and not due
to Mother’s situation. The court further noted that it had scheduled a number of
hearings on the permanent custody motion “to allow [Mother] an opportunity to
show up. Every time we have come in [Mother’s counsel] has informed the Court of
all of the very numerous efforts that she has made to try to contact her client.”
(May 24, 2021, tr. 6-7.) CCDCFS stated that the permanent custody motion had
been “pending for roughly eight months. In that time, mother has not appeared. *
* * [I]t’s been eight months and mother has been missing from this case. She has
been for several months missing from the purview of the Agency. We’ve made
several attempts to contact her and have been unsuccessful.” (May 24, 2021, tr. 6.)
While Mother argues that the court’s denial of her motion for
continuance was an abuse of discretion, she has not explained her unexpected
absence from the court proceedings. Under Loc.R. 35(C), good cause must be shown
for a case to be continued on the day of trial. Here, the children have been in
CCDCFS’s custody since December 2020. Since the filing of the motion for
permanent custody in September 2021, there had been at least six hearing dates
prior to trial, and Mother failed to remain in communication with her trial counsel.
Mother’s counsel was unable to provide any justifiable reason for delaying the trial
other than Mother’s failure to clearly and consistently communicate with counsel
and Mother’s failure to timely engage in case plan services. Therefore, under the
Unger factors, we are unable to conclude that the trial court abused its discretion
when it denied the continuance after Mother failed to communicate with the court
or her counsel regarding the circumstances of her absence.
To the extent Mother argues that she was denied the right to effective
assistance of counsel, we note that Mother’s claim is unsupported by the record,
which demonstrates that Mother was fully represented throughout the proceedings
and that any alleged lack of preparation was the sole result of her own inaction. At
trial, Mother’s counsel gave an opening statement, cross-examined the witnesses,
and gave a closing statement. In In re A.M.N., 8th Dist. Cuyahoga No. 111155, 2022-
Ohio-2048, this court rejected a similar argument, noting that despite a claim of
ineffectiveness due to a lack of preparation, father’s trial counsel gave an opening
and a closing statement, conducted the direct examination of father, and cross-
examined the other witnesses. Id. at ¶17. Likewise, in the instant case, we cannot
say that the juvenile court abused its discretion by denying counsel’s 11th-hour
request for a continuance.
Therefore, the first assignment of error is overruled.
B. Permanent Custody
1. Standard of Review
When reviewing a juvenile court’s judgment in child custody cases,
the Ohio Supreme Court has stated that the “court’s decision in a custody proceeding
is subject to reversal only upon a showing of abuse of discretion.” In re A.J., 148
Ohio St.3d 218, 2016-Ohio-8196, 69 N.E.3d 733, ¶ 27, citing Davis v. Flickinger, 77
Ohio St.3d 415, 417, 674 N.E.2d 1159 (1997).
2. R.C. 2151.414 Test for Determining Permanent Custody
We recognize that the “[t]ermination of parental rights is an
alternative of last resort but is sanctioned when necessary for the welfare of a child.”
In re M.S. at ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th
Dist.1994). Before a court may terminate parental rights and award permanent
custody of a child to the proper agency, it must determine by clear and convincing
evidence that (1) one of the factors enumerated in R.C. 2151.414(B)(1)(a)-(e) applies,
and (2) an award of permanent custody is in the child’s best interest. R.C.
2151.414(B).
“‘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). “Where clear
and convincing proof is required at trial, a reviewing court will examine the record
to determine whether the trier of fact had sufficient evidence before it to satisfy the
requisite degree of proof.” In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-
5496, ¶ 24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
“‘An appellate court will not reverse a juvenile court’s termination of
parental rights and award of permanent custody to an agency if the judgment is
supported by clear and convincing evidence.’” In re J.M-R., 8th Dist. Cuyahoga No.
98902, 2013-Ohio-1560, ¶ 28, quoting In re Jacobs, 11th Dist. Geauga No. 99-G-
2231, 2000 Ohio App. LEXIS 3859, 11 (Aug. 25, 2000), citing In re Taylor, 11th Dist.
Ashtabula No. 97-A-0046, 1999 Ohio App. LEXIS 2620 (June 11, 1999). See also In
re AR.S., 2021-Ohio-1958, 174 N.E.3d 28 (8th Dist.)
a. R.C. 2151.414(B)(1)(a)-(e) Factors
Relevant to the instant case, the factors set forth in R.C.
2151.414(B)(1) include the following: the child cannot be placed with either parent
within a reasonable period of time or should not be placed with either parent. R.C.
2151.414(B)(1)(a). We note that “[o]nly one of the factors must be present to satisfy
the first prong of the two-part analysis for granting permanent custody to an
agency.” In re D.H., 8th Dist. Cuyahoga No. 110505, 2021-Ohio-3821, ¶ 27, citing
In re L.W., 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657.
Here, the juvenile court found that the children “cannot be placed
with either of the child’s parents within a reasonable time or should not be placed
with the child’s parents” as set forth in R.C. 2151.414(B)(1)(a). In cases where R.C.
2151.414(B)(1)(a) applies, courts look to the factors set forth in R.C. 2151.414(E) to
determine whether a child cannot be placed with a parent within a reasonable time
or should not be placed with a parent.
In the judgment entry granting permanent custody, the juvenile court
considered the following factors set forth in R.C. 2151.414(E): Mother had failed to
remedy the conditions that caused the children to be placed outside her home (R.C.
2151.414(E)(1)); Mother’s chemical dependency is so severe that it makes her unable
to presently, or within one year of trial, provide an adequate permanent home for
the children (R.C. 2151.414(E)(2)); Mother demonstrated a lack of commitment
toward the children by failing to support, visit, or communicate with the children or
provide an adequate permanent home for them (R.C. 2151.414(E)(4)); Mother has
abandoned the children (R.C. 2151.414(E)(10)); Father was incarcerated at the time
of the filing of the motion for permanent custody (R.C. 2151.414(E)(12)); Mother is
unwilling to provide food, clothing, shelter, and other basic necessities for the
children (R.C. 2151.414(E)(14)); and “any other factor the court considers relevant,”
which in this case is the fact that Father entered into an agreement to permanent
custody (R.C. 2151.414(E)(16)).
Only one of the enumerated factors under R.C. 2151.414(E) is
required for the court to make the finding that “‘the child cannot be placed with
either parent within a reasonable time or should not be placed with either parent.’”
In re L.W., 8th Dist. Cuyahoga No. 107708, 2019-Ohio-1343, ¶ 29, quoting In re
Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000), and citing In re
R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 2012-Ohio-4290, ¶ 14 (the
existence of only one factor will support the court’s finding that the child cannot be
reunified with the parent within a reasonable time).
Citing to R.C. 2151.414(E)(1) and 2151.414(E)(2), Mother’s argument
focuses on the juvenile court’s findings that the children should not be placed with
either parent within a reasonable amount of time. She further argues that there was
no evidence that her chemical dependency prevented her from providing an
adequate home for her children within a year. As a result, our discussion will
address these two factors.
Our review of the record clearly and convincingly supports the
juvenile court’s determination that the children could not be placed with Mother
within a reasonable period of time. Trial testimony demonstrates that Mother’s case
plan objectives were incomplete due to her failure to make herself available or to
complete all parenting classes as required. While Mother did complete an
assessment, she never completed the recommended treatment or submitted to drug
screening as requested. Orlowski requested drug screenings from Mother but noted
that “she would disappear for months at a time[.]” (May 24, 2021, tr. 26). Despite
repeated efforts to contact Mother by phone call, text, and through her own mother,
Orlowski had not been able to speak with Mother and had not met with her since
December 2021. Mother also had outstanding criminal charges, including
attempted drug possession, at the time of trial and an outstanding warrant for her
arrest. At the time of trial, Mother had not demonstrated through changed
behaviors any benefit from the services she had engaged in, she did not complete
any of the services as referred, and she did not demonstrate the ability to achieve or
maintain sobriety. Mother also failed to demonstrate the ability to obtain and
maintain appropriate housing.
The record further supports the juvenile court’s determination that
Mother’s chronic chemical dependency is so severe that it makes her unable to
provide an adequate permanent home for the children. The amended original
complaint that resulted in the children being adjudicated dependent contained
allegations that directly implicate Mother’s chemical dependency. The allegations
included facts relating to the children’s prior adjudication due to Mother’s substance
abuse issues, prior convictions for drug possession and child endangering, and the
discovery of illegal drugs in her purse and home. The case plan included objectives
relating to Mother’s substance abuse issues and indicated that Mother “has a history
of substance abuse, specifically cocaine and amphetamines.” The evidence at trial
revealed that S.G. and J.G, as well as K.V., had previously been in agency custody
due to substance abuse. Moreover, Mother’s ongoing chemical dependency issues
were also acknowledged at trial by her own mother, who testified that Mother “needs
help.” Orlowski referred Mother to Recovery Resources and had urged her to engage
with them, and while Mother did complete an assessment, she never returned to
complete the recommended treatment or to submit to drug screening as requested.
We recognize that Mother has taken steps to address her chemical
dependency and that she is “very good” with the children when she’s sober.
However, as this court has previously stated, “[a]lthough commendable, this does
not of itself preclude a grant of permanent custody to a children services agency.
Substantial compliance with a case plan does not mean that the parent has achieved
the ultimate goals of the plan or that the parent has substantially remedied the
conditions that caused the children to be removed.” In re A.P., 8th Dist. Cuyahoga
No. 104129, 2016-Ohio-5848, ¶ 19, citing In re J.B., 8th Dist. Cuyahoga Nos. 98566
and 98567, 2013-Ohio-1706. Although Mother participated in case plan services
and had visitation, she abandoned the children for approximately five months and
did not provide any support or other assistance to them during the entire time the
children were in the temporary custody of CCDCFS.
Collectively, this evidence supports the juvenile court’s finding that
Mother failed to remedy the conditions that caused the children to be placed outside
the home. While these actions alone are sufficient to satisfy the first prong of R.C.
2151.414(B), Mother’s actions also demonstrated that she abandoned the children,
she had a lack of commitment towards the children, and she was unable to provide
the children with a safe and permanent home. Accordingly, we find the record
clearly and convincingly supports the court’s conclusion that the children could not
or should not be placed with Mother within a reasonable time.
Having found that the trial court properly concluded that at least one
of the R.C. 2151.414(B)(1) conditions applies, we must next determine whether the
trial court appropriately found by clear and convincing evidence that granting
permanent custody to the agency is in the children’s best interest.
b. The Children’s Best Interest
In determining the best interest of a child, the juvenile court must
consider all relevant factors, including, but not limited to, the following:
(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, as expressed directly by the child or through
the child's guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, 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.
R.C. 2151.414(D)(1).
Although a trial court is required to consider each relevant factor
under R.C. 2151.414(D)(1) in deciding to award permanent custody, “[t]here is not
one element that is given greater weight than the others pursuant to the statute.” In
re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. This court
has stated that only one of these enumerated factors needs to be resolved in favor of
the award of permanent custody. In re L.W., 2019-Ohio-1343, at ¶ 39, citing In re
Moore, 8th Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31,
2000).
Here, the juvenile court found that a grant of permanent custody is in
the best interest of the children and the children cannot be placed with one of their
parents within a reasonable time or should not be placed with either parent. As
stated above, the testimony presented at trial demonstrated that while Mother acted
appropriately with the children when she did visit them, she had not seen the
children in the five months that passed since December 2021. While Mother did
engage in parenting classes, she did not complete the program before she became
unlocatable. Mother was also unable to demonstrate proof of sobriety and failed to
obtain stable housing of her own. Additionally, Father was incarcerated pending
federal charges, anticipated a prison sentence of at least ten years, and agreed to
permanent custody. Furthermore, the children were removed and had been in
CCDCFS custody for approximately 18 months by the time of trial in May 2022.
Moreover, the GAL recommended that the court find permanent
custody to be in the children’s best interests. The GAL noted that the children were
six, five, and four years old and were too young to decide their own wishes. The GAL
stated that Mother had not made any significant progress on her case plan objectives
and that “there’s no reason for an extension of temporary custody” because Mother
“hasn’t made any significant progress to warrant that extension.” (May 24, 2022, tr.
61-62.) The GAL concluded that “[w]e can’t wait for [Mother] to get her act together.
These kids need permanency.” (May 24, 2022, tr. 62.)
Based on the foregoing, we find there is clear and convincing evidence
in the record to support the juvenile court’s determination that permanent custody
to CCDCFS is in the children’s best interests.
Therefore, the second assignment of error is overruled.
III. Conclusion
Mother failed to demonstrate that the juvenile court abused its
discretion by denying her request for continuance on the day of trial when Mother’s
actions caused the delay. In addition, the juvenile court’s findings and its judgments
granting permanent custody of the children to CCDCFS are supported by clear and
convincing evidence in the record.
Accordingly, judgment 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 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.
MARY J. BOYLE, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR