In re A.C. , 2023 Ohio 938 ( 2023 )

[Cite as In re A.C., 2023-Ohio-938.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.C., ET AL. :
No. 111975
Minor Children :
[Appeal by M.B., 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 Nos. AD20908201, AD20908202, AD20908203, AD20908204, and
AD20908205
Appearances:
Michael Gordillo, for appellant Mother.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MICHELLE J. SHEEHAN, P.J.:
Appellant, M.B., the mother of five minor children, appeals the
juvenile court’s award of permanent custody to the Cuyahoga County Department
of Children and Family Services (“CCDCFS or the Agency”). M.B. alleges that the
juvenile court’s award of permanent custody was against the manifest weight of the
evidence. We find that the juvenile court’s judgment to award permanent custody
was based on competent, credible evidence in the record. Further we find that the
juvenile court did not abuse its discretion in determining that permanent custody
was in the children’s best interest. Accordingly, we affirm the judgment of the
juvenile court.
I. Procedural History and Relevant Facts
A. Procedural History
On September 24, 2020, the Agency filed five complaints alleging that
each of M.B.’s five children were neglected and dependent requesting temporary
custody of the children. After a hearing held on November 16, 2020, the children
were placed in the temporary custody of the Agency and then on December 15, 2020,
the children were placed in the temporary custody of their paternal grandfather. The
order of temporary custody had been extended twice. On March 16, 2022, the
Agency filed motions to modify temporary custody to permanent custody in each of
the children’s cases.1
B. Motion for Permanent Custody and Evidence Presented at
Hearing
On June 13, 2022, the juvenile court held a hearing on the motions
for permanent custody. The magistrate issued opinions finding that the children’s
continued residence in or the return to the home of M.B., mother, and to C.C., father,
1 In this matter, the record of proceedings for each of the five children’s individual cases
is nearly identical and M.B. does not raise any individual argument as to any single child’s
case. As such, we will refer to the record and the matter in the singular throughout this
opinion unless necessary to do otherwise.
would be contrary to the children’s best interest and granted permanent custody of
the children to the Agency. M.B. filed objections to the magistrate’s decisions and
on August 23, 2022, the juvenile court overruled the objections and granted the
motions for permanent custody in favor of the Agency.
At the hearing, the trial court received as exhibits the plea and
sentencing entries from M.B.’s criminal case. The entries indicate that M.B. entered
guilty pleas to six counts of endangering children in violation of R.C. 2919.22(A),
felonies of the third degree, and to the felony offenses of disseminating matter
harmful to juveniles in violation of R.C. 2907.31(A)(3) and cruelty against a
companion animal in violation of R.C. 959.131(C). The offenses to which M.B.
pleaded guilty to occurred over a period of time from on or about May 1, 2019, to
November 16, 2020. M.B. was sentenced to community-control sanctions which
included placement into a sex offender unit for supervision and she was ordered to
have no contact with the victims of her offenses, i.e., her children.
The juvenile court received testimony from the CCDCFS extended
services worker who was assigned to the children’s family. The worker testified that
she was familiar with the family and that there were five children, then aged 5 to 11
years old, who were all in the temporary custody of the Agency. The children were
placed with their paternal grandparents, their needs, including counseling, were
being met, and they were bonded with their grandparents.
The extended services worker testified that the children were placed
into temporary custody in part due to M.B.’s substance abuse and parenting issues
along with educational and medical neglect of the children and an inability to meet
the children’s needs. M.B. had a case plan that included referrals for service for M.B.
to address substance abuse issues, parenting and household maintenance, and
meeting her children’s basic needs. The case plan initially had a goal of unification
of the family, but that become unworkable after M.B.’s criminal case.
M.B. completed a nonintensive outpatient program to address
substance abuse. Because of the no-contact order in the criminal case, M.B. did not
have contact with any of the children since October 2021. The extended services
worker further stated the children were bonded with their grandparents and that the
children’s needs were being met. M.B. also completed a parenting class, but due to
her continuing no-contact order, the Agency could not assess whether she benefitted
from the parenting services she completed or that she could presently meet the
children’s basic needs.
The guardian ad litem testified to the children’s living environment.
She stated that they received appropriate medical and dental care, including mental
health treatment for several of the children. The guardian ad litem submitted a
recommendation to the court that permanent custody be granted, basing the
recommendation on the children’s need for a stable secure placement. Further, the
guardian ad litem testified that in light of the parents’ criminal convictions and
sentences, they would not be able to provide the care necessary for the children. As
to the children, the guardian ad litem report submitted to the juvenile court noted
that the children “want to speak about how bad their parents were to them and also
indicated fear of removal from their grandparents” home.
C. Decision Granting Permanent Custody to the Agency
In awarding permanent custody to the Agency, the juvenile court
determined the allegations within the motions for permanent custody were proven
by clear and convincing evidence. It further found that each of the children had been
in the temporary custody of a public children services agency or private child placing
agency for 12 or more months of a consecutive 22-month period and that reasonable
efforts were made to prevent the continued removal of the children from her home,
or to return the children to the home, and to finalize the permanency plan, to wit:
reunification. It further found that custody with M.B. would be contrary to the
children’s best interest under the factor’s listed within R.C. 2151.414(E) because
M.B. and C.C. had both committed abuse against the children or caused or allowed
the child to suffer neglect and had been convicted of violations of R.C. 2919.22(A),
endangering children, felonies of the third degree; a violation of disseminating
matter harmful to juveniles, a felony of the fourth degree; and cruelty against a
companion animal, a felony of the fourth degree. The juvenile court further
determined that “the seriousness, nature, or likelihood of recurrence of the abuse or
neglect makes the child[ren]’s placement with the child[ren]’s parent a threat to the
child[ren]’s safety.”
The juvenile court also made the following determination:
Upon considering the interaction and interrelationship of the child
with the child’s parents, siblings, relatives, and foster parents; the
wishes of the child; the custodial history of the child, including whether
the child has been in temporary custody of a public children services
agency or private child placing agency under one or more separate
orders of disposition for twelve or more months of a consecutive
twenty-two month period; the child’s need for a legally secure
permanent placement and whether that type of placement can be
achieved without the grant of permanent custody; and, the report of the
Guardian ad Litem, the Court finds by clear and convincing evidence
that a grant of permanent custody is in the best interests of the child
and the child cannot be placed with one of the child’s parents within a
reasonable time or should not be placed with either parent. The Court
further finds, it is in the best interest of the child to be placed in the
permanent custody of the Cuyahoga County Division of Children and
Family Services.
The juvenile court explained the reasoning supporting its finding by noting that the
focus of the case was the best interest of the children, that R.C. 2151.414(C) provided
that “the court shall not consider the effect the granting of permanent custody to the
agency would have upon any parent of the child.” It stated that there was clear and
convincing evidence of multiple, independent legal grounds for the granting of
permanent custody and noted the argument of counsel for the grandparents “that
the parents’ request to extend temporary custody to repair the parent-child
relationship is in effect letting the perpetrators of an offense tell this court what
should happen to the victims of their crime.”
II. Law and Argument
A. Assignment of Error
M.B.’s sole assignment of error reads:
The trial court’s termination of Appellant’s parental rights is against the
manifest weight of the evidence.
M.B. argues that the juvenile court erred in terminating her parental
rights pursuant to R.C. 2151.414(E) because of her criminal convictions without
finding that she posed an ongoing risk to the children and further if the court did
make such finding, that finding was against the manifest weight of the evidence. She
argues that she demonstrated sobriety to the juvenile court and completed her case
plan.
The Agency argues that because M.B. and C.C. were found guilty of an
offense listed within R.C. 2151.414(E)(6), the statute requires the juvenile court to
find that the children could not or should not be placed with their parents and that
the juvenile court did not abuse its discretion in finding that permanent custody was
in the children’s best interest.
B. Relevant Law and Standards of Review
R.C. 2151.414(B) provides that permanent custody of a child may be
awarded to a children services agency if the court finds, by clear and convincing
evidence, that (1) it is in the best interest of the child to grant permanent custody of
the child to the agency, and (2) that any of the conditions listed in R.C.
2151.414(B)(1)(a)-(e) apply. “A juvenile court’s decision to grant permanent custody
will not be reversed as being against the manifest weight of the evidence [when] the
record contains competent, credible evidence by which it could have found that the
essential statutory elements for an award of permanent custody have been
established.” In re B.P., 8th Dist. Cuyahoga Nos. 107732 and 107735, 2019-Ohio-
2919,¶ 22; R.C. 2151.414(B)(1). This court has stated clear and convincing evidence
is
that measure or degree of proof which is more than a mere
“preponderance of the evidence” but not to the extent of such certainty
required “beyond a reasonable doubt” in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.
In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing
Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979(1987).
R.C. 2151.414(D)(1) provides the factors to consider when
determining the best interests of a child, it reads:
(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.
When determining the best-interest of a child pursuant to
R.C. 2151.414(D), “[t]he court must consider all of the elements in R.C. 2151.414(D)
as well as other relevant factors. There 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.
If it is in the best interests of a child that permanent custody be
granted, R.C. 2151.414(B)(1)(a)-(e) provides, in pertinent part, conditions upon
which the juvenile court may grant permanent custody:
(1) Except as provided in division (B)(2) of this section, the court may
grant permanent custody of a child to a movant if the court determines
at the hearing held pursuant to division (A) of this section, by clear and
convincing evidence, that it is in the best interest of the child to grant
permanent custody of the child to the agency that filed the motion for
permanent custody and that any of the following apply:
(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.
* * *
(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.
Where a child is the victim of a crime committed by a parent or
parents, R.C. 2151.414(E)(6) provides that the juvenile court is to consider all
relevant evidence as to “whether a child cannot be placed with either parent within
a reasonable period of time or should not be placed with the parents.” The statute
specifically addresses the impact of specific crimes on the trial court’s determination
and reads in relevant part:
If the court determines, by clear and convincing evidence, at a hearing
held pursuant to division (A) of this section or for the purposes of
division (A)(4) of section 2151.353 of the Revised Code that one or more
of the following 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:
***
(6) The parent has been convicted of or pleaded guilty to an offense
under division (A) or (C) of section 2919.22 or under section 2903.16,
2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04, 2905.05,
2907.07, 2907.08, 2907.09, 2907.12, 2907.23, 2907.25, 2907.31,
2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,
2911.12, 2919.12, 2919.24, 2919.25, 2923.12, 2923.13, 2923.161,
2925.02, or 3716.11 of the Revised Code, and the child or a sibling of
the child was a victim of the offense, or the parent has been convicted
of or pleaded guilty to an offense under section 2903.04 of the Revised
Code, a sibling of the child was the victim of the offense, and the parent
who committed the offense poses an ongoing danger to the child or a
sibling of the child.
R.C. 2151.414(E).
An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
Such an abuse “‘implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
C. The Juvenile Court’s Grant of Permanent Custody to the
Agency Was Based on Credible, Competent Evidence, Was
Not Against the Manifest Weight of the Evidence, and Did Not
Constitute an Abuse of the Juvenile Court’s Discretion
Pursuant to R.C. 2151.414(B), permanent custody of the children in
this matter could be awarded to the Agency if the juvenile court found by clear and
convincing evidence 1) that any of the conditions listed in R.C. 2151.414(B)(1)(a)-(e)
were present; and 2) that the award of permanent custody is in the best interest of
the children. The children were in Agency custody for 15 months within the past 24
months at the time of the filing of the permanent custody. Accordingly, the trial
court’s finding that the condition listed in R.C. 2151.414(B)(1)(d), that the children
were in the temporary custody of the Agency for 12 or more months of a consecutive
22-month period, was met and is not in dispute.
As to whether the grant of permanent custody was in the best interest
of the children, M.B. argues that the juvenile court erred by finding the children
could not be returned to her on the basis of her criminal convictions without finding
that she posed an ongoing risk to the children. However, the juvenile court made
this specific finding, stating in the journal entries in each of the children’s cases that
“the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes
the child[ren]’s placement with the child[ren]’s parent a threat to the child[ren]’s
safety.” M.B. argues that this finding is an abuse of discretion where the juvenile
court received evidence that she completed parenting and substance abuse
programming and demonstrated a period of sobriety to the juvenile court. She
further notes that within the case plan, the Agency made plans to provide visitation
between her and her children, but legally could not allow visitation due to the no-
contact order in place in her criminal cases.
The Agency argues that because M.B. and C.C. were found guilty of an
offense listed within R.C. 2151.414(E)(6) the juvenile court was required to find that
the children could not or should not be placed with their parents. Further, the
Agency noted that the sentence imposed in the criminal case mandated that M.B.
have no contact with the victims of her crimes, i.e., her children. The Agency argues
that this condition of M.B.’s community-control sanctions support the finding that
M.B. presented an ongoing risk to her children. It further argues that permanent
custody was in the children’s best interest because the children required a
permanent placement, there was no reasonable ground to continue temporary
custody, and the remaining factors to be considered by the juvenile court supported
the finding.
In making its determination that permanent custody would be in the
best interests of the children in this case, the juvenile court was required pursuant
to R.C. 2151.414(D) to consider the children’s interaction with their parents, siblings,
relatives, the wishes of the children, the custodial history of the child, and 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, and whether
any of the factors in divisions (E)(7) to (11) of this section apply in relation to the
parents and child.
As to the interaction and relationship of the children with their
parents and extended family pursuant to R.C. 2151.414(D)(1)(a), the juvenile court
found that the children were victims of abuse by their parents over a period of time.
Further, the children were placed with their paternal grandparents and that
placement was suitable where the children’s needs were being met. As to
consideration of the children’s wishes pursuant to R.C. 2151.414(D)(1)(b), the
juvenile court found that the children wished to remain in their current placement
and did not want to return to the custody of their parents. This finding was
supported by the testimony and report of the guardian ad litem as well as testimony
from the extended services worker.
The juvenile court’s finding that the children were in temporary
custody under R.C. 2151.414(D)(1)(c) is supported by the record and not contested.
The juvenile court’s consideration of the children’s need for a permanent placement
under R.C. 2151.414(D)(1)(d) and that M.B. or C.C. could not provide the placement
was supported by the sentence imposed in their criminal cases. Although M.B.
argued that the no-contact condition could be changed by the sentencing court,
there was no evidence presented that such change was being pursued or that change
would be made in a reasonable time. Additionally, pursuant to R.C. 2151.414(E)(6),
the record supported the juvenile court’s finding that the children’s parents pleaded
guilty to multiple violations of R.C. 2919.21(A). Because of these convictions, the
juvenile court was required to find that the children cannot or should not be placed
with either parent within a reasonable time.
M.B. specifically alleges that the record did not support the
determination that she presented an ongoing risk of harm to her children. However,
the record reflects that M.B. committed multiple criminal offenses against her
children over the course of 18 months. Further M.B. was prohibited from contact
with her children as a condition of her criminal sentence for a period of time up to
five years. In light of this evidence, we cannot say the juvenile court’s determination
that “the seriousness, nature, or likelihood of recurrence of the abuse or neglect
makes the child[ren]’s placement with the child[ren]’s parent a threat to the
child[ren]’s safety” was an abuse of discretion.
The juvenile court’s decision to grant permanent custody was based
upon a review of the appropriate statutory considerations and supported by
competent, credible evidence. Accordingly, we do not find the judgment is against
the manifest weight of the evidence. In re B.P., 8th Dist. Cuyahoga Nos. 107732 and
107735, 2019-Ohio-2919, at ¶ 22. The record reflects that the juvenile court
considered the appropriate factors in determining that permanent custody was in
the best interest of the children. Further, the record contains competent, credible
evidence that supports the juvenile court’s determination.
The sole assignment of error presented is overruled.
III. Conclusion
We find that the juvenile court’s judgment to award permanent
custody was based on competent, credible evidence in the record. Further, we find
that the juvenile court did not abuse its discretion in determining that permanent
custody was in the children’s best interest. Accordingly, we affirm the judgment of
the juvenile court.
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.
__________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., and
SEAN C. GALLAGHER, J., CONCUR