In re K.R. , 2023 Ohio 936 ( 2023 )

[Cite as In re K.R., 2023-Ohio-936.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.R. :
: No. 112036
A Minor Child :
:
[Appeal by C.P., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 23, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-22901691
Appearances:
Gregory T. Stralka, 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 C.P. (“Mother”) appeals from the judgment of the
Cuyahoga County Common Pleas Court, Juvenile Division (“juvenile court”),
granting permanent custody of her minor child, K.R., to appellee, the Cuyahoga
County Division of Children and Family Services (“CCDCFS” or the “agency”). For
the reasons that follow, we affirm.
Procedural and Factual History
The agency first became involved with Mother1 on October 31, 2019,
when it filed complaints alleging abuse and neglect for K.R.’s three siblings, R.A.,
d.o.b. 3/23/15; Ke.R., d.o.b. 8/31/2017; and E.R., d.o.b. 5/20/2019. Mother
stipulated to an amended complaint that alleged the following:
1. On or about October 30, 2019, there was an incident where the home
was raided by the human trafficking task force. The children were
present during the raid.
2. Mother has a substance abuse issue and needs to engage in services.
3. Mother needs to use appropriate judgement to keep the children
safe.
4. Mother needs to provide for the children’s medical and
developmental needs.
5. Mother needs to ensure that only appropriate individuals have access
to the children.
6. Mother lacks safe, stable, and appropriate housing with which to care
for the children.
Almost two years later on May 3, 2021, the agency was granted
permanent custody of R.A., Ke.R., and E.R. The juvenile court found that Mother
attended two drug treatment programs. She was discharged from one due to lack of
participation and during the other, she frequently attended while under the
influence of drugs and/or alcohol. Mother also provided numerous excuses for not
1 L.R., the alleged father of K.R., is not party to the appeal. L.R. is also the father
of E.R. and the alleged father of Ke.R.
submitting to random urine screens despite receiving bus tickets from CCDCFS and
a neighborhood collaborative.
Mother also refused to complete an updated mental health
assessment or other mental health services. She told the social worker that she did
not have a problem and did not need services.
Mother completed two parenting programs but could not
demonstrate that she benefited from the services. After completion of the two
programs, Mother fed R.A. inappropriate food after he had a tonsillectomy that
caused R.A. to require medical attention.2 Also, a neighborhood collaborative
offered to help Mother complete her case plan, but Mother refused to accept their
help. Finally, Mother was unemployed throughout the case, which demonstrated
her inability to provide for the basic needs of the children. Given the foregoing, the
juvenile court found that granting permanent custody to the agency was in the best
interest of the children.
In February 2022, the agency received notice from a local hospital
that Mother had given birth to another child, K.R. On February 18, 2022, CCDCFS
filed a complaint alleging that K.R., d.o.b. 2/16/22, was dependent, as defined in
R.C. 2151.04(D). The complaint also contained a prayer for permanent custody to
the agency. The complaint averred that Mother’s three oldest children were
previously adjudicated abused and neglected and ultimately placed in the
2 The specifics of the event were not detailed in the juvenile court’s journal entry
for the siblings; however, at the permanent custody trial for K.R., the social worker
elaborated that R.A. had had a tonsillectomy.
permanent custody of CCDCFS, due to Mother’s substance abuse issues, lack of
stable and appropriate housing, and her inability to meet the children’s basic needs.
Further, Mother continued to have a substance abuse issue and was diagnosed with
an alcohol use disorder. The complaint raised the issue that Mother had not
benefited from past substance abuse counseling. Finally, the complaint alleged that
Mother lacked the judgment and decision-making skills necessary to provide
appropriate care and supervision for the child. Mother did not obtain prenatal care
for K.R., and Mother did not benefit from parenting education in the past.
Along with the complaint, CCDCFS filed a motion for predispositional
temporary custody of K.R. to the agency. In support, the agency indicated that K.R.
was ready for discharge from the hospital and that the conditions listed in the
complaint required the child to be placed in the emergency temporary custody of the
agency. The juvenile court granted predispositional temporary custody to CCDCFS.
Although the agency requested permanent custody, it also included
reunification with Mother in the case plan with goals for her to complete. Her goals
included parenting classes; a drug and alcohol assessment; reentry into and
completion of an inpatient substance abuse treatment program; demonstrate clean
and sober behavior through participation in a 12-step program; provide random
urines as requested; domestic violence counseling; and address mental health issues
including obtaining a full evaluation to assess her ability to properly raise an infant.
On June 24, 2022, Carla Golubovic, the guardian ad litem (“GAL”) for
K.R., issued her report on the case. The GAL had also been assigned to the three
older siblings’ cases and was familiar with the case history. The GAL reported that
K.R. was in foster care with his siblings and was well-adjusted in the home. Mother
was in the process of completing case plan goals, including substance abuse
treatment and attending weekly visits. At the time of the report, Mother and alleged
Father, L.R., were living together and alleged Father was employed. Based on the
foregoing, the GAL recommended that the agency receive temporary custody
because statutory time remained for the parents to complete the case plan
objectives.
On August 17, 2022, the juvenile court held both the adjudicatory and
dispositional hearings. The state called as its sole witness, Lee Barbee (“Barbee”), a
social worker with CCDCFS. Barbee had also been assigned to the siblings’ cases.
Barbee first summarized Mother’s conduct and completion of case plan goals when
K.R.’s siblings were in custody.
During the adjudication hearing, the state introduced as exhibits the
journal entries that found K.R.’s siblings abused and neglected and the journal
entries granting permanent custody to the agency. After the agency obtained
permanent custody in May 2021, Barbee remained in contact with Mother until
September or October 2021. During that time, Mother was appealing the permanent
custody ruling and maintained a visitation schedule with her older children. Barbee
did not observe Mother under the influence during those visits; however, Mother
was not enrolled in substance abuse treatment during that time.
After the agency was notified of K.R.’s birth, Barbee reestablished
contact with Mother. Mother admitted to him that she had no prenatal care while
pregnant with K.R. Nevertheless, K.R. was born healthy and did not test positive for
any drugs of abuse. Mother likewise did not test positive for drugs or alcohol at
K.R.’s birth. However, Barbee visited Mother’s home and found that there were no
provisions in preparation for K.R.’s birth. Mother claimed that she did not know
she was pregnant.
The state rested as to the adjudicatory phase of the trial. Mother did
not present any witnesses. The juvenile court found K.R. to be a dependent child.
Prior to presenting testimony on the dispositional phase, the state
requested that the testimony and evidence introduced during the adjudicatory phase
be incorporated into the dispositional hearing. Mother did not object, and the
juvenile court granted the motion.
Barbee again addressed the court and indicated Mother’s case plan
included parenting education, substance abuse and mental health treatment,
domestic violence education, and establishing the ability to meet the basic needs of
the child.
At the time of the hearing, Mother was engaged in parenting classes
and only had one or two more classes to complete the program.
Mother was also referred to a dual diagnoses program to address
substance abuse and mental health issues. The program was designed to address
substance abuse first. After successful completion, Mother would be referred for
mental health services. Unfortunately, Mother tested positive for alcohol twice
during the program, once in June 2022, and again in July 2022. Because the
positive tests occurred within four weeks of each other, the protocol was for a team
meeting to be scheduled to discuss with Mother whether to extend her treatment
program or move her to a different level of care. Although she was informed of the
meeting, Mother did not attend.
Sometime after the GAL’s initial report in June 2022, Mother and
alleged Father lost their housing. According to Barbee, Mother told him the landlord
sold the house suddenly, so they had to move. At the time of the hearing, Mother
was staying with K.R.’s maternal grandmother, while alleged Father was residing in
a hotel. Mother applied for housing with CMHA, however, her application was
denied. Barbee indicated this was because Mother added alleged Father to the
housing application. Barbee did not address why that was a disqualifying issue.
Regardless, Mother would have to reapply, and it was estimated it would take eight
to nine months for Mother to obtain housing. Furthermore, Barbee indicated it
would be unsuitable to place K.R. with Mother and maternal grandmother because
maternal grandmother had prior history with the agency. Barbee was not asked to
elaborate on the nature of that history or why maternal grandmother’s home would
be unsuitable for K.R.
Domestic violence education was also on the case plan but had not
been completed.
Barbee reported that K.R. was in foster care with his siblings and
doing well. K.R. had to have surgery for acid reflux and was in the hospital.
Although notified of this, Mother had not visited K.R. in the hospital. However,
Mother regularly attended all other visits and was appropriate with K.R.
After the close of testimony, the juvenile court asked the GAL for her
recommendation. Based on the testimony at trial, the GAL changed her
recommendation from temporary custody to the agency to permanent custody. She
indicated that the parents had not changed their behavior since the three older
children were in custody. Given the history, she believed that Mother still struggled
with alcohol addiction, and had struggled for years. Further, there had not been
significant progress. Mother had to begin substance abuse treatment again for the
third time. As a result, the GAL felt that permanent custody was in K.R.’s best
interest.
The trial court took the case under advisement and later granted
permanent custody of K.R. to CCDCFS.
Mother now appeals assigning the following errors for our review.
Assignment of Error No. 1
The trial court abused its discretion when it failed to base its decision
upon the best interests of the child.
Assignment of Error No. 2
The findings by the trial court granting permanent custody were
against the manifest weight of the evidence.
Assignment of Error No. 3
The findings by the trial court granting permanent custody were not
supported by sufficient evidence.
Law and Analysis
Preliminarily, we note Mother does not challenge the court’s finding
that K.R. was dependent. Mother only challenges the juvenile court’s decision to
place K.R. in the permanent custody of CCDCFS. Accordingly, we will confine our
review to the permanent custody decision.
It is well settled that a parent has a fundamental right to raise and
care for their child. In re G.W., 8th Dist. Cuyahoga No. 110938, 2022-Ohio-2581,
¶ 29, 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. Nevertheless, the government,
through children’s services agencies, has “broad authority to intervene when
necessary for a child’s welfare.” In re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061,
and 103367, 2015-Ohio-4991, ¶ 35, citing at ¶ 28.
The goal when parental rights are terminated is to “create ‘a more
stable life’ for dependent children and to ‘facilitate adoption to foster permanency
for children.’” In re V.C. at ¶ 35, quoting In re N.B., 8th Dist. Cuyahoga No. 101390,
2015-Ohio-314, ¶ 67. Courts recognize termination of parental rights as the “‘family
law equivalent of the death penalty in criminal cases.’” In re Hayes, 79 Ohio St.3d.
46, 48, 679 N.E.2d 680 (1979), quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d
45 (6th Dist. 1991). Accordingly, “parents must be afforded every procedural and
substantive protection the law allows.” Id. quoting Smith at id.Standard of Review
When reviewing the grant of permanent custody, we will not reverse
a juvenile court’s decision if that decision is supported by clear and convincing
evidence. In re R.H., 8th Dist. Cuyahoga No. 111748, 2023-Ohio-78, ¶ 27, citing In
re J.M.-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560, ¶ 28. “Clear and
convincing evidence” is a degree of proof that is more than a “preponderance of the
evidence” but does not rise to the level of certainty required to find something
proven “beyond a reasonable doubt” as required in criminal cases. In re R.H at ¶ 27,
quoting In re K.S., 8th Dist. Cuyahoga No. 109928, 2021-Ohio-694, ¶15.
Sufficiency of the Evidence
With that framework in mind, we look at Mother’s third assignment
of error. Under the third assignment of error, Mother challenges the sufficiency of
the evidence. Sufficiency of the evidence is a question of law. As such, we look to
determine whether some evidence exists in support of each element required for
determining the matter. In re A.W., 1st Dist. Hamilton No. C-220248, 2022-Ohio-
3715, ¶ 20, citing In re P. & H., 1st Dist. Hamilton Nos. C-190309 and C-190310,
2019-Ohio-3637, ¶ 7.
Consequently, we begin our analysis by looking at the requirements
for granting permanent custody to determine whether there was some evidence
presented as to each element to support the juvenile court’s grant of permanent
custody. The termination of parental rights is statutory and governed by R.C.
2151.414. In re A.A.-V., 8th Dist. Cuyahoga No. 111257, 2022-Ohio-1947, ¶ 24, citing
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. R.C. 2151.414 provides a
two-part test to determine whether to award permanent custody to a public
children’s service agency. In re A.A.-V. at ¶ 24, R.C. 2151.414.
First Prong: R.C. 2151.414(B)(1)(a)-(e)
Regarding the first prong, permanent custody is warranted when the
record establishes by clear and convincing evidence that one of the following five
factors exists:
(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 child placing 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)
Under the first prong, only one of the factors must be present to
support permanent custody. In re G.W., 8th Dist. Cuyahoga No. 110938, 2022-
Ohio-2581, at ¶ 34, citing In re S.S., 8th Dist. Cuyahoga No. 109356, 2020-Ohio-
3039, ¶ 28.
In this matter, the juvenile court determined that the condition set
forth in R.C. 2151.414(B)(1)(a) applied. We note, R.C. 2151.414(B)(1)(a) permits a
grant of permanent custody of a child, if the court determines that the child is not
abandoned or orphaned, has not been in the temporary custody of the agency for 12
months out of a consecutive 22 months if the court determines that the child cannot
be placed with the parents within a reasonable time or should not be placed with the
parents.
It is undisputed that K.R. had been in the continuous, uninterrupted
custody of CCDCFS since the initial removal on February 18, 2022, a period of six
months. Pursuant to R.C. 2151.414(B)(1)(3), the child is considered in the custody
of the agency from the earlier of the date the child is adjudicated pursuant to R.C.
2151.28 or the date that is sixty days after the removal from the home. In the instant
case, the earlier date would have been sixty days from removal on February 18, 2022,
or April 20, 2022. Accordingly, consistent with R.C. 2151.414(B)(1)(a), the child had
not been in the custody of the agency for 12 months at the time of the permanent
custody hearing. We next turn to whether there was sufficient evidence presented
that K.R. should not or could not be placed with Mother within a reasonable period
of time.
Regarding the second requirement under R.C. 2151.414(B)(1)(a), the
court further found that K.R. could not be placed with one or both of his parents
within a reasonable time. R.C. 2151.414(E) provides that if the juvenile court
determines by clear and convincing evidence that one or more of the conditions
listed exist as to each of the child’s parents, “the court shall enter a finding that the
child cannot be placed with either parent within a reasonable time or should not be
placed with either parent.” (Emphasis added.) The court specifically cited R.C.
2151.414(E)(1), (2), (4), (11), (14), and (16) and indicated there was clear and
convincing evidence in the record as to each section. Those provisions provide:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home. In determining
whether the parents have substantially remedied those conditions, the
court shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and material
resources that were made available to the parents for the purpose of
changing parental conduct to allow them to resume and maintain
parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the court holds the hearing pursuant to division
(A) of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code;
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child;
***
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section
2151.353 or 2151.415 of the Revised Code, or under an existing or
former law of this state, any other state, or the United States that is
substantially equivalent to those sections, and the parent has failed to
provide clear and convincing evidence to prove that, notwithstanding
the prior termination, the parent can provide a legally secure
permanent placement and adequate care for the health, welfare, and
safety of the child.
***
(14) The parent for any reason is unwilling to provide food, clothing,
shelter, and other basic necessities for the child or to prevent the child
from suffering physical, emotional, or sexual abuse or physical,
emotional, or mental neglect.
***
(16) Any other factor the court considers relevant.
Only one of these factors needed to be present to establish that the
child could not or should not be placed back with the parents. For ease of analysis,
although the juvenile court identified six factors, we will focus on only two, R.C.
2151.414(E)(1) and (11).
R.C. 2151.414(E)(1) requires a finding that the parent has not
remedied the issues that caused the child to be removed from the home. The record
reflects that K.R. was removed due to the juvenile court’s previous removal of
Mother’s older children and because Mother had not addressed the issues that
caused their removal. During the siblings’ case, Mother attended but did not
complete substance abuse treatment on two occasions. During K.R.’s case, Mother
likewise did not complete substance abuse treatment and had tested positive for
alcohol a few weeks prior to the permanent custody hearing. During the siblings’
case, Mother attended parenting classes on two occasions and yet did not
demonstrate that she benefitted from the education she received when caring for
R.A. shortly after surgery. Although Mother was progressing through parenting
classes during K.R.’s case, it was her third round of parenting education. The history
of this case establishes that Mother seems to have a bonded and loving relationship
with K.R.; however, concerns about her ability to care for the child remain. Finally,
although Mother was living with the child’s maternal grandmother, the testimony at
trial established that it was a temporary placement. Mother intended to obtain
housing with the alleged father, L.R., a process that could take an additional eight to
nine months.
Accordingly, there was evidentiary support for the juvenile court’s
finding that R.C. 2151.414(E)(1) applied. There was sufficient evidence in the record
to establish that Mother had not substantially remedied the conditions that caused
the child to be removed from the home despite the provision of services from the
agency. Accordingly, there was sufficient evidence to support the trial court’s
finding that the requirements of R.C. 2151.414(E)(1) were met.
R.C. 2151.414(E)(11) requires the court to review Mother’s prior
history with CCDCFS as part of its permanent custody decision. Under that section,
the court may find the child could not or should not be returned to the parents where
there is clear and convincing evidence that the parent’s parental rights were
involuntarily terminated as to a sibling of the child, and the parent has not
established by clear and convincing evidence that “notwithstanding the prior
termination, the parent can provide a legally secure permanent placement and
adequate care for the health, welfare, and safety of the child.” It is undisputed that
Mother’s parental rights were involuntarily terminated with regard to her three
other children. Accordingly, sufficient evidence in the record establishes the prior
termination of parental rights.
Nevertheless, R.C. 2151.414(E)(11) allows a parent to establish that
despite the prior ruling, they can now provide a legally secure placement and
adequate care for the health, welfare, and safety of the child. In re L.O., 8th Dist.
Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 26, fn. 8. The record is largely silent as to
whether Mother would have presently been able to provide for the child. Mother
had not completed her mental health and substance abuse case plan goals.
Additionally, she did not have stable, permanent housing or provisions for K.R.
Accordingly, there was sufficient evidence to support the juvenile
court’s finding under R.C. 2151.414(E)(11). As both R.C. 2151.414(E)(1) and (11)
were established by some evidence in the record, the trial court’s findings with
respect to first prong of the permanent custody analysis are supported by sufficient
evidence.
Second Prong: R.C. 2151.414(D)
The second prong requires the juvenile court to find by clear and
convincing evidence that granting permanent custody to the agency is in the best
interest of the child. The juvenile court’s best interest determination under R.C.
2151.414(D) is reviewed under the abuse of discretion standard. In re G.L., 8th Dist.
Cuyahoga No. 110284, 2021-Ohio-2273, at ¶ 44, citing In re D.A., 8th Dist. Cuyahoga
No. 95188, 2010-Ohio-5618, ¶ 47. “‘A trial court’s failure to base its decision on a
consideration of the best interests of the child constitutes an abuse of discretion.’”
Id., quoting, In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 60.
We will first determine whether the juvenile court’s best interest
determination was supported by sufficient evidence.
R.C. 2151.414(D) lists the factors the juvenile court should consider in
determining whether permanent custody is in the best interest of the child:
(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, 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;
(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.
In the instant case, the record reflects that there was sufficient
evidence to support the juvenile court’s best interest determination. Testimony was
presented as to provision (a), establishing that the child was bonded with Mother,
however, the child was also well bonded with the foster mother, and his siblings and
was thriving in the foster home; as to provision (b), when the GAL provided her
recommendation that permanent custody was in K.R.’s best interest (See, In re L.J.,
8th Dist. Cuyahoga No. 111221, 2022-Ohio-2278, ¶ 53, considering the GAL’s
recommendation regarding permanent custody as part of the R.C. 2151.414(D)(1)(b)
analysis is proper where the children are too young to express their wishes.); as to
provision (c), testimony illustrated K.R. had been in the agency’s custody since two
days after his birth; as to provision (d), there was testimony as to K.R.’s placement
and whether Mother had the present ability to provide for his care; and as to
provision (e), there was evidence presented to support a finding that K.R. could not
or should not be placed with Mother pursuant to R.C. 2151.414(E)(11).
Accordingly, there was sufficient evidence to support the juvenile
court’s finding that permanent custody was in the best interest of the child.
Accordingly, Mother’s third assignment of error is overruled.
The Weight of the Evidence
Under the second assignment of error, Mother challenges the weight
of the evidence. The weight of the evidence “looks to the inclination of the greater
amount of credible evidence to support one side rather than the other.” In re A.W.,
1st Dist. Hamilton No. C-220248, 2022-Ohio-3715, at ¶ 20, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. It is our
responsibility when examining the weight of the evidence to consider the credibility
of the witnesses, weigh all reasonable inferences, “determine whether — in resolving
conflicts in the evidence — the juvenile court ‘clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed.’” In re A.W. at
¶ 20 quoting, In re P. & H., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-
Ohio-3637, ¶ 7.
Here, not only was the juvenile court’s determination supported by
sufficient evidence, it was supported by the greater weight of the evidence. Under
the first prong of the permanent custody analysis, the juvenile court determined that
R.C. 2151.414(B)(1)(a) applied. Under that section, the juvenile court needed to find
that although the child had not been in the custody of the agency for a period of 12
months, the child should not be placed with the parent or could not be placed with
the parent within a reasonable period of time as defined in R.C. 2151.414(E).
Again, it was undisputed that K.R. met the first part of
R.C. 2151.414(B)(1)(a), because he was only six months old when the permanent
custody hearing was held. Furthermore, with respect to the second part of the
statute, the record established that one or more of the factors listed in R.C.
2151.414(E) were present, which if true, mandates the juvenile court to find that the
child cannot or should not be placed with the parent. Here, the record established
that Mother had not remedied the conditions that caused K.R. to be removed from
the home, because she had not completed substance abuse treatment, had not
addressed her mental health issues, and had not established she was able to meet
K.R.’s basic needs, under R.C. 2151.414(E)(1). Furthermore, pursuant to R.C.
2151.414(E)(11), the record established that Mother’s three oldest children had been
placed into the permanent custody of the agency, and Mother did not present any
evidence to establish that she was presently capable of providing a legally secure
placement for K.R.
R.C. 2151.414(E)(11) puts the burden of proof on the parent to
establish that they can now provide a legally secure placement for a child, after a
previous grant of permanent custody for a sibling. In re L.O., 8th Dist. Cuyahoga
No. 101805, 2015-Ohio-1458, at ¶ 26, fn. 8. While Mother had complied with
aspects of her case plan, she had recently tested positive for alcohol during substance
abuse treatment and was unable to complete the program. This was Mother’s third
attempt at substance abuse treatment. Additionally, as a result, she was unable to
reach the mental health aspects of her case plan. Consequently, Mother’s mental
health issues have never been addressed. Although Mother appeared to have
housing, the only evidence in the record is that it was unsuitable for K.R. Mother
did not counter the caseworker’s testimony with any testimony via cross-
examination or direct evidence to establish that the maternal grandmother’s home
would have been suitable. Finally, prior to K.R.’s birth, Mother did not obtain
prenatal care, and the caseworker found that Mother and alleged Father had not
made any preparation in their home for K.R.’s arrival; nor was there any testimony
that they had made any preparations for K.R. by the time of the permanent custody
hearing.
Accordingly, the greater weight of the evidence established that
permanent custody was proper under R.C. 2151.414(B)(1)(a).
Similarly, regarding the second prong of the permanent custody test,
the greater weight of the evidence established that permanent custody was in K.R.’s
best interests under R.C. 2151.414(D)(1)(a)-(e). Under provision R.C.
2151.414(D)(1)(a), the child was doing well in the foster home and was bonded with
both his siblings and foster mother. Under provision (b), the GAL recommended
that K.R. be placed in the permanent custody of the agency based on her knowledge
of Mother’s previous history with the agency and K.R.’s current placement. Under
provision (c), K.R. had been in the agency’s custody, with the exception of two days,
his entire life. Under provision (d), K.R. was in need of a legally secure placement
and Mother had not established that she could meet K.R.’s needs, or that there was
any other person who was a suitable caregiver for K.R. Finally, under provision (e),
the record established that K.R. could not be placed with Mother within a reasonable
period of time, pursuant to R.C. 2151.414(E)(11).
Consequently, the greater weight of the evidence supported the
juvenile court’s findings that permanent custody was appropriate and in K.R.’s best
interest.
Accordingly, Mother’s second assignment of error is overruled.
Abuse of Discretion
Finally, Mother challenges the best interest determination in her first
assignment of error, arguing that the juvenile court abused its discretion by failing
to properly consider the best interest factors when finding permanent custody was
appropriate. The juvenile court’s best interest determination under R.C.
2151.414(D) is reviewed under the abuse of discretion standard. In re G.L., 8th Dist.
Cuyahoga No. 110284, 2021-Ohio-2273, at ¶ 44, citing In re D.A., 8th Dist. Cuyahoga
No. 95188, 2010-Ohio-5618, at ¶ 47. “‘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 G.L. at ¶ 44, quoting In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-
314, at ¶ 60. A court abuses its discretion when its attitude is “unreasonable,
arbitrary, or unconscionable.” In re Ry.T., 8th Dist. Cuyahoga No. 111311, 2023-
Ohio-12, ¶ 18, citing In re N.N., 8th Dist. Cuyahoga No. 110443, 2021-Ohio-3931, ¶
22, citing, Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
A juvenile court has considerable discretion when weighing the best
interest factors. In re G.L. at ¶ 46, citing In re D.A. at ¶ 64. Although R.C.
2151.414(D)(1) requires the juvenile court to consider each relevant factor when
making a permanent custody decision, “‘there is not one element that is given
greater weight than the others pursuant to the statute.’” In re G.L. at ¶ 46 quoting,
In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. The
juvenile court must weigh all of the relevant factors under R.C. 2151.414(D)(1) and
“‘find the best option for the child.’”
The operative word, however, is “consider.” Although the Ohio
Supreme Court encourages juvenile courts to discuss each factor and how they
considered it, the court recognized that the juvenile courts are not required to do so.
In re A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d 1, ¶ 31-32. As the court
noted, “R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss
each of the best interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration
is all the statute requires.” Id. at ¶ 31.
Mother focuses on one paragraph of the juvenile court’s order, in
which the court lists all the best interest factors in R.C. 2151.414(D)(1)(a) through
(e). Mother suggests that this laundry list of factors shows the juvenile court failed
to appropriately consider the best interest factors, because some of these factors do
not apply to the facts of this case.
However, our review of the journal entry reveals that the juvenile
court merely noted in its entry that it had considered all the factors in making its
determination, as it is required to do. In the findings of fact, the juvenile court
specifically listed the facts that supported its best interest determination, as follows:
1. The court found that R.C. 2151.414(E)(11) applied to the case, and
that the child should not or could not be placed with Mother within a
reasonable time. [R.C. 2151.414(D)(1)(e)].
2. The court explicitly detailed Mother’s case plan and her lack of
consistent progress on those goals. [R.C. 2151.414(D)(1)(d).]
3. The child has been in the continuous, uninterrupted custody of
CCDCFS since the initial removal on February 18, 2022. [R.C.
2151.414(D)(1)(c).]
4. The child is placed in a foster home with three siblings who are
currently in the permanent custody of CCDCFS and is thriving there.
The child is doing well in placement and is bonded to the family. [R.C.
2151.414(D)(1)(a).]
5. The GAL * * * recommended granting permanent custody to
CCDCFS as being in the child’s best interests. She based this on the
information that neither parent has taken steps to provide permanency
to K.R. [R.C. 2151.414(D)(1)(b).]
Consequently, we find that the juvenile court did not fail to
appropriately consider the best interest factors when making its finding. Mother
takes issue with the fact that some of the factors do not apply to this case. For
instance, Mother suggests that the child was not in custody for 12 out of the past 22
months, so therefore, the juvenile court could not consider that as a factor in support
of the best interest of the child. To the contrary, however, R.C. 2151.414(D)(1)(c)
requires the court to consider “[t]he custodial history of the child, including” certain
specific lengths of time the child has been in custody. Here, the court considered
K.R.’s time in custody, the remainder of the section did not apply, and the court did
not make those findings. Mother also takes issue with whether K.R., at six months,
could express where he wished to live. While K.R. could not express his wishes, the
GAL opined that permanent custody was in his best interest pursuant to R.C.
2151.414(D)(1)(b). Accordingly, the juvenile court properly considered the best
interest factors and did not abuse its discretion.
The first assignment of error is overruled.
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
KATHLEEN ANN KEOUGH, P.J., and
MICHAEL JOHN RYAN, J., CONCUR