In re J.G. , 2014 Ohio 2652 ( 2014 )

[Cite as In re J.G., 2014-Ohio-2652.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100681
IN RE: J.G.
A Minor Child
[Appeal by M.G., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 13909890
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 19, 2014
ATTORNEYS FOR APPELLANT
Anita Barthol Staley
7327 Center Street
Mentor, OH 44060
Eileen Noon Miller
Law Offices of Eileen Noon Miller, L.L.C.
P.O. Box 1681
Mentor, OH 44060
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kara L. Brown
Assistant County Prosecutor
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, OH 44144
TIM McCORMACK, J.:
{¶1} Appellant, M.G. (“Mother” or “M.G.”), appeals the judgment of the
Cuyahoga County Court of Common Pleas, Juvenile Division, that granted permanent
custody of the minor child, J.G., to the Cuyahoga County Department of Children and
Family Services (“CCDCFS” or “the agency”). As mandated by the statute, the relevant
analysis in a permanent custody matter is the best interest of the child. After a careful
review of the record, we find that clear and convincing evidence supports the trial court’s
determination that granting permanent custody to the agency is in the best interest of J.G.
We therefore affirm its decision.
Procedural History
{¶2} On July 11, 2013, CCDCFS filed a complaint for dependency and
permanent custody concerning minor child, J.G., and a motion for pre-dispositional
temporary custody. That same day, an emergency hearing was held, during which the
agency received temporary custody of the child. Mother was present at the emergency
hearing, and she completed a waiver of service of summons of the complaint and motion
for temporary custody, which contained a statement that she voluntarily attended the
hearing and she was represented by counsel.
{¶3} On July 16, 2013, Mother was issued a service of summons by certified
mail, which included a notification of the next pretrial date of August 13, 2013. On July
26, 2013, the service of summons was returned “not deliverable as addressed.”
Subsequently, an adjudicatory hearing was scheduled for September 6, 2013. The
hearing was then continued until October 15, 2013. Notice of the new hearing date was
served upon Mother by publication on September 17, 2013 and returned on September 25,
2013.
{¶4} On October 15, 2013, the court held an adjudicatory hearing. Present for
the hearing were CCDCFS social workers, Latrice Miller and Andrea Funches-Jemison;
Mother’s guardian ad litem, Tyrone Fazio; and the child’s guardian ad litem, James
Skelton. Also present were Mother’s attorney and the prosecuting attorney. Mother
was not present for the hearing.
{¶5} During this hearing, the court found J.G. to be a dependent child.
Thereafter, the parties agreed to proceed directly to the dispositional hearing. Counsel
for Mother indicated that she had no position on disposition because she had been unable
to contact Mother. Upon hearing the evidence on disposition, the court found J.G. to be
abandoned and determined that permanent custody would be in the best interest of the
child.
Substantive Facts
{¶6} CCDCFS received this case in July 2013, upon the birth of J.G. At the
time of J.G.’s birth, Mother was a patient in a psychiatric unit at MetroHealth Hospital.
She was being treated for anxiety, depression, bipolar disorder, and panic attacks.
CCDCFS received a referral for neglect, the basis for which was that Mother had tested
positive for PCP and cocaine, and she admitted to alcohol use during her pregnancy.
{¶7} At the adjudicatory hearing, social worker, Latrice Miller, testified that she
investigated the referral. Upon her investigation, Miller learned from Mother that she
used drugs during the pregnancy and used alcohol daily. While Mother claimed that she
did not know where the cocaine had come from, she did not deny using cocaine or PCP.
{¶8} After the child’s birth, the agency conducted a safety conference in order to
discuss the safety and well being of the child and to discuss plans for discharge. Both
Mother and her mental health worker attended the conference. During this conference,
Mother reported again that she had been using drugs during her pregnancy and she was
homeless. Mother stated that she had no place to live and she had no provisions for the
child. The mental health worker advised that Mother had been living in a park in a tent,
with a friend, prior to her hospitalization. Mother was not receiving any mental health
medication. Mother also advised Miller that she previously had two children who were
removed from her care in New York and were adopted. When asked about J.G.’s father,
Mother reported only that his name is Vincent. Miller learned from the mental health
case manager that the father is also homeless and she did not know his whereabouts.
Miller testified that the agency had attempted to contact the father through information
received through Mother, the hospital staff, and agency records to no avail. To the best
of Miller’s knowledge, the father had made no contact with the child, communicated with
the child, or established paternity.
{¶9} As a result of the safety conference, the decision was made to admit Mother
to a crisis center, where she would have maintained a residence. Mother left after having
stayed only one day.
{¶10} Following the hearing, the court adjudicated the child to be a dependent
child. The court then inquired of disposition, to which Mother’s counsel replied that she
had no position on disposition because she had not been able to contact her client.
Thereafter, all parties agreed to proceed with disposition.
{¶11} CCDCFS’s ongoing social worker, Andrea Funches-Jemison, testified on
behalf of the agency for the disposition. Funches-Jemison testified that she was assigned
the case in September 2013. She stated that J.G. was placed in foster care in an adoptive
home, which remains the only home he has ever known.
{¶12} Funches-Jemison also testified that there is a case plan for Mother, which
included substance abuse services, mental health services, basic needs for the child, and a
plan to establish the child’s paternity. She stated that these services were offered to
Mother while she was hospitalized and she could have begun services immediately upon
her discharge. She has not been able to offer any services, however, or schedule
visitation with the child, because Mother left the crisis center after one day and the
agency has not been able to locate Mother. The social worker testified that she has
attempted to contact Mother through her mental health worker and accessing legal
systems, and she provided Mother with her business card and phone number in order that
Mother may contact her. Mother had not contacted Funches-Jemison, and to the best of
her knowledge, Mother had not had any contact with the agency or hospital personnel
since she left the crisis center. Funches-Jemison testified that if Mother were available,
she would offer Mother psychiatric and psychological counseling.
{¶13} The ongoing social worker maintained that Mother’s needs have not
changed since the filing of the original complaint. To the best of Funches-Jemison’s
knowledge, Mother remains homeless, is not obtaining basic needs for herself, has no
source of income, and has not established paternity. Funches-Jemison had attempted on
her own to locate the child’s father by searching the state registry and hospital and agency
records to no avail. Funches-Jemison further provided that a reasonable amount of time
had passed for Mother to begin services because those services were offered to Mother
while she was in the hospital during the child’s birth, and they have remained available
since that time. In her opinion, placement in the agency’s custody is in the child’s best
interest.
{¶14} J.G.’s guardian ad litem, James Skelton, recommended permanent custody
to the agency, testifying that permanent custody would be in the best interest of the child.
{¶15} Upon hearing the evidence and the recommendation of the guardian ad
litem, the court found the child abandoned and granted permanent custody of J.G. to
CCDCFS.
{¶16} Mother appeals from the court’s decision granting permanent custody of
J.G. to the agency and raises four assignments of error.
Assignments of Error
I. The trial court erred in granting the motion for permanent custody as
such decision was against the manifest weight of the evidence.
II. The trial court erred in proceeding immediately to disposition.
III. The trial court erred by not determining whether notice requirements
had been met before proceeding to adjudication.
IV. [Mother’s] due process rights as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and Article I,
Section 10 of the Ohio Constitution were violated by ineffective assistance
of counsel.
Notice Requirements
{¶17} For ease of discussion, we will address M.G.’s assignments of error out of
order. In Mother’s third assignment of error, she argues that the trial court erred by not
determining whether notice requirements had been met prior to proceeding with the
adjudicatory hearing.
{¶18} It is well established that juvenile proceedings must comply with due
process requirements, which include that of proper written notice. In re Taylor, 8th Dist.
Cuyahoga No. 76429, 2000 Ohio App. LEXIS 2476, * 7 (June 8, 2000), citing In re
Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). And the juvenile court has no
jurisdiction until notice of the proceedings has been provided to the parties. In re D.P.,
8th Dist. Cuyahoga Nos. 86271, 86272, 2006-Ohio-937, ¶ 19; In re Miller, 33 Ohio
App.3d 224, 515 N.E.2d 635 (8th Dist.1986).
{¶19} Juv.R. 29 governs adjudicatory hearings before a juvenile court and requires
the court to perform certain duties at the beginning of a hearing. The rule states that the
court must “[a]scertain whether notice requirements have been complied with and, if not,
whether the affected parties waive compliance.” Juv.R. 29(B)(1). The purpose of
Juv.R. 29(B) is to provide a “checklist” to aid the court in determining whether the parties
have been afforded due process requirements. In re Shepherd, 4th Dist. Highland No.
00CA12, 2001-Ohio-2499. Specifically, Juv.R. 29(B)(1), (3), and (4) address whether
the parties have been notified and what the court should do in the event that they were not
notified. Id. In addressing the notice requirements of Juv.R. 29, we review the record
for substantial compliance. In re Clark, 141 Ohio App.3d 55, 59, 2001-Ohio-4126, 749
N.E.2d 833 (8th Dist.); In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d
1177 (stating that most courts of appeals have held that only substantial compliance with
Juv.R. 29 is needed). “The issue is not whether the judge strictly complied with rote, but
whether the parties adequately understood their rights * * *.” In re Clark at 59.
{¶20} Here, the record reflects that Mother appeared at an emergency hearing for
predispositional temporary custody, where she received a copy of the complaint and
signed a waiver of service of summons. The waiver, signed by Mother and dated July
11, 2013, stated as follows:
I, [M.G.], mother of [J.G.], hereby waive service of summons of me as a
parent, regarding the complaint alleging the child to be dependent and
requesting a disposition of permanent custody, * * *. I hereby voluntarily
enter my appearance in the matter on the merits thereof. I have been given
the opportunity to engage legal counsel and am presently represented by
counsel.
{¶21} The record also shows that on July 16, 2013, Mother was issued a service of
summons by certified mail, which included a notification of the next pretrial date of
August 13, 2013. On July 26, 2013, the service of summons was returned “not
deliverable as addressed.” Subsequently, an adjudicatory hearing was scheduled for
September 6, 2013, which was then continued again until October 15, 2013, presumably
due to the inability to locate Mother. Finally, the record shows that notice of the new
hearing date was served upon Mother by publication in the Daily Legal News on
September 17, 2013, and returned on September 25, 2013. The summons, which
included M.G.’s last known address, advised that a permanent custody hearing would be
held on October 15, 2013, that she was entitled to counsel at the hearing, and it informed
her of the consequences of the hearing.
{¶22} The record further reflects that Mother voluntarily left the crisis center one
day after her admission. There is no evidence that M.G. ever attempted to contact the
agency after she left or communicated her whereabouts to the agency, despite having
contact information for the social worker. At the adjudicatory hearing, the magistrate
noted that Mother was not present and her counsel advised the court that she “[has] not
been able to contact [her] client.” To the best of the agency’s knowledge, no one has
ever visited the child, communicated with the child, or established paternity.1
{¶23} In light of the foregoing, we find that the record supports that M.G. was
properly notified of the adjudicatory hearing. While the trial court did not verbally
recount the Juv.R. 29(B) notice requirements at the hearing, the court presumably
reviewed the ample evidence contained in the record and ascertained that service of
notice of the hearing was complete. Mother was therefore not prejudiced by the court’s
failure to strictly comply with Juv.R. 29(B)(1). See In re Flanagan, 3d Dist. Seneca No.
13-97-42, 1998 Ohio App. LEXIS 1813 (Apr. 22, 1998). In this case, it was not the
alleged failure to notify Mother of the permanent custody hearing that caused M.G.’s
failure to appear. Rather, it was her own actions in voluntarily leaving her last known
residence and failing to communicate with her attorney or social worker that resulted in
her absence from the hearing.
The record shows that J.G.’s father is known only by “Vincent” and he is also homeless.
1
The agency attempted service of the summons upon Vincent by publication, which was also returned.
{¶24} M.G.’s third assignment of error is overruled.
Dispositional Hearing
{¶25} In her second assignment of error, M.G. contends that the trial court erred in
proceeding immediately to disposition following the adjudication.
{¶26} R.C. 2151.35 expressly allows the trial court to proceed immediately to the
dispositional hearing after the adjudicatory hearing in a complaint for custody provided
the parties received the proper notice:
If the court at an adjudicatory hearing determines that a child is an abused,
neglected, or dependent child, the court shall not issue a dispositional order
until after the court holds a separate dispositional hearing. The court may
hold the dispositional hearing for an adjudicated abused, neglected, or
dependent child immediately after the adjudicatory hearing if all parties
were served prior to the adjudicatory hearing with all documents required
for the dispositional hearing.
R.C. 2151.35(B)(1).
{¶27} Similarly, Juv.R. 34(A), which governs the manner in which dispositional
hearings are held on a complaint for custody, provides as follows:
The dispositional hearing for an adjudicated abused, neglected, or
dependent child shall be held at least one day but not more than thirty days
after the adjudicatory hearing is held. The dispositional hearing may be held
immediately after the adjudicatory hearing if all parties were served prior to
the adjudicatory hearing with all documents required for the dispositional
hearing and all parties consent to the dispositional hearing being held
immediately after the adjudicatory hearing.
{¶28} Although the language in Juv.R. 34(A) essentially mirrors the language
contained in the statute, Juv.R. 34(A) also requires that the parties consent to proceed
immediately to dispositional hearing. In re D.H., 177 Ohio App.3d 246,
2008-Ohio-3686, 894 N.E.2d 364, ¶ 23 (8th Dist.).
{¶29} Here, as previously discussed, Mother was served all documents required for
the dispositional hearing prior to the adjudicatory hearing. The record shows that M.G.
received a copy of the complaint for dependency and permanent custody at the
predispositional hearing, during which time she signed a waiver of service of summons.
She was also later issued a service of summons by certified mail and by publication.
Additionally, M.G.’s counsel consented to the immediate dispositional hearing. We
therefore find that the trial court did not err in holding the dispositional hearing
immediately after the adjudicatory hearing in this case.
{¶30} M.G.’s second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶31} In her fourth assignment of error, M.G. argues that her attorney was
ineffective in allowing the trial court to proceed directly to disposition. She claims that
the dispositional hearing should not have taken place immediately after the adjudication
and her counsel had no authority to consent to the immediate disposition of the case.
{¶32} In order to establish a claim of ineffective assistance of counsel, a defendant
must demonstrate: (1) his counsel was deficient in some aspect of his representation, and
(2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶33} The first element requires a showing that counsel made errors “so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. It necessarily requires that when a defendant complains of the
ineffectiveness of counsel’s assistance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 687-688. A
court “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689.
{¶34} Regarding the second element, the defendant must demonstrate that there is
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142, 538
N.E.2d 373, citing Strickland at 694. Moreover, a defendant’s failure to satisfy one
element of the Strickland test negates the court’s need to consider the other. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
{¶35} Based upon our previous discussion, we determined that the trial court did
not err in holding the dispositional hearing immediately after the adjudicatory hearing
where Mother received the documents required for the dispositional hearing and she
consented to the hearing, through her counsel. See Juv.R. 34(A); R.C. 2151.35(B)(1).
Trial counsel’s decision to proceed immediately to disposition was arguably a trial tactic,
and we do not second guess counsel’s decision. “[T]he reasonableness of trial counsel’s
performance must be examined in light of the limitations that the [mother’s] own
behavior placed on counsel’s ability to represent [her].” In re N.H., 9th Dist. Summit
No. 24355, 2008-Ohio-6617, ¶ 28, citing Strickland at 691. The record shows that M.G.
voluntarily left the residence secured for her and she failed to maintain communication
with anyone involved in the permanent custody of her infant child, including her own
attorney. By trial counsel’s own admission, she had not had been able to contact her
client. M.G. has therefore not demonstrated that her attorney’s performance in agreeing
to proceed directly to disposition fell below an objective standard of reasonableness.
{¶36} Additionally, even if Mother can show that her attorney’s consent was
somehow deficient, Mother has failed to demonstrate how the outcome of the permanent
custody would have been different had the dispositional hearing been delayed one day, or
even 30 days. The record shows that Mother did not participate in any case plan, she did
not communicate or visit with the child or anyone with the agency at any time after she
left the crisis center, and her trial counsel had been unable to locate her. M.G. has failed
to show how these facts would have changed had the dispositional hearing been held on a
different day. As such, we do not find M.G.’s counsel to be ineffective.
{¶37} M.G.’s fourth assignment of error is overruled.
Permanent Custody
{¶38} In her first assignment of error, Mother argues that the trial court erred in
awarding permanent custody to CCDCFS. She claims that (1) the decision was in error
because the court failed to determine whether notice requirements had been met and
because the court held the dispositional hearing immediately after the adjudicatory
hearing; and (2) the decision was against the weight of the evidence. To the extent
Mother is arguing error in the notice of the hearing and the manner in which the hearing
was held, we previously determined there is no merit to this argument. We address the
remainder of Mother’s argument below.
{¶39} We begin with the recognition that “a parent’s right to raise a child is an
essential and basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680(1997). “The permanent termination of parental rights has been described as the family
law equivalent of the death penalty in a criminal case.” In re Hoffman, 97 Ohio St.3d 92,
2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. “All children have the right, if possible, to
parenting from either natural or adoptive parents which provides support, care, discipline,
protection and motivation.” In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090(8th Dist.1996). This court has also emphasized that the “termination of the rights of a
birth parent is an alternative of last resort.” In re Gill, 8th Dist. Cuyahoga No. 79640,
2002-Ohio-3242, ¶ 21. “The purpose of the termination of parental rights statutes is to
facilitate adoption and to make a more stable life for dependent children.” In re Howard,
5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, *5 (Aug. 1, 1986).
{¶40} R.C. 2151.414 provides guidelines a trial court must follow in deciding a
motion for permanent custody. R.C. 2151.414(A) mandates that the trial court schedule
a hearing and provide notice to all the parties to the action and to the child’s guardian ad
litem upon the filing of a motion for permanent custody of a child by a public children
services agency.
{¶41} The statute sets forth a two-prong analysis to be applied by a juvenile court
in adjudicating a motion for permanent custody. R.C. 2151.414(B). First, it authorizes
the juvenile court to grant permanent custody of a child to the public agency if, after a
hearing, the court determines, by clear and convincing evidence, that any of the four
factors apply: (a) the child is not abandoned or orphaned, but the child cannot be placed
with either parent 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; or (d) the child has been in the
temporary custody of one or more public children services agencies or private child
placing agencies for 12 or more months of a consecutive 22-month period. R.C.
2151.414(B)(1)(a)-(d).
{¶42} In the event that R.C. 2151.414(B)(1)(a) applies, and the child is not
abandoned or orphaned, but the child cannot be placed with either parent within a
reasonable time or should not be placed with the child’s parents, a trial court must
consider the factors outlined in R.C. 2151.414(E). In re R.M., 8th Dist. Cuyahoga Nos.
98065 and 98066, 2012-Ohio-4290, ¶ 14. The presence of only one factor will support
the court’s finding that the child cannot be reunified with the parent within a reasonable
time. Id. The relevant factors include the following:
(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.
***
(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;
***
(10) The parent has abandoned 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.
{¶43} For the purposes of this statute, “abandoned” is defined by R.C.
2151.011(C), which provides that “a child shall be presumed abandoned when the parents
of the child have failed to visit or maintain contact with the child for more than ninety
days, regardless of whether the parents resume contact with the child after that period of
ninety days.” In re K.M., 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 10. A
trial court’s finding of abandonment under R.C. 2151.414(B)(1)(b) will satisfy the first
prong of the permanent custody test, thus allowing the court to move on to the second
prong of considering whether the grant of permanent custody to the agency is in the best
interest of the child. See In re Cravens, 3d Dist. Defiance No. 4-03-48, 2004-Ohio-2356,
¶ 25; In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 72 (stating that only
one of the four factors must be present in order to satisfy the first prong of the permanent
custody analysis).
{¶44} If any of the factors outlined in R.C. 2151.414(B)(1)(a)-(d) exists, the trial
court proceeds to the second part of the analysis: whether, by clear and convincing
evidence, it is in the best interests of the child to grant permanent custody to the agency.
{¶45} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D)(1) mandates that the juvenile court 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.
{¶46} R.C. 2151.414 requires the court to find, by clear and convincing evidence,
(1) one of the factors enumerated in R.C. 2151.414(B)(1)(a)-(d), and (2) an award of
permanent custody is in the best interest of the child. Clear and convincing evidence is
that which will produce in the trier of fact “‘a firm belief or conviction as to the facts
sought to be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481
N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. While requiring a greater standard of proof than a
preponderance of the evidence, clear and convincing evidence requires less than proof
beyond a reasonable doubt. In re Parsons, 9th Dist. Lorain No. 97CA006662 and
97CA006663, 1997 Ohio App. LEXIS 5141 (Nov. 12, 1997).
{¶47} As for our own role on appeal from the trial court’s decision, we are
cognizant that a juvenile court’s termination of parental rights and award of permanent
custody to an agency is not reversed unless the judgment is not supported by clear and
convincing evidence. In re: Dylan C, 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th
Dist.1997).
{¶48} Our review of the record in this case shows that the trial court’s decision to
award permanent custody of J.G. to the agency was supported by clear and convincing
evidence.
{¶49} First, the record fully supports the trial court’s initial determination that
Mother abandoned her infant child, thus satisfying the first prong of the permanent
custody analysis. The record shows that Mother voluntarily left the crisis center — a
home that had been secured on her behalf —after only one day. There was no evidence
that she ever returned. She failed to maintain contact with anyone associated with her
case, including her social worker, hospital staff, and her attorney. She made no efforts to
communicate with or visit her child from the time she left the crisis center. And more
than 90 days had passed since she last had any contact with her child.
{¶50} Further, Mother failed to complete any part of her case plan. She did not
receive mental health services, such as psychological and psychiatric counseling,
treatment for substance abuse, basic needs services, or assistance in establishing paternity.
The social worker testified that a reasonable amount of time had passed in order for
M.G. to receive the case plan services. The services were originally offered to her upon
the birth of her child in July 2013, and they remained available to her, up to and including
the hearing in October 2013. Additionally, there is no evidence that the alleged father
has ever communicated with the child, visited the child, or established paternity.
{¶51} In turning to the second prong of the permanent custody analysis, we find
that there was clear and convincing evidence to support the trial court’s determination
that awarding permanent custody to CCDCFS was in the best interest of the child.
{¶52} Initially, we note that the record shows that Mother has demonstrated a
complete lack of commitment to her child. And in addition to the child’s abandonment
as outlined above, the record shows that other relevant factors apply to the court’s best
interest analysis. Mother is unwilling or unable to provide food, clothing, shelter, and
other basic necessities for the child or herself, and she has no source of income. The
record shows that she suffers from substance abuse and mental health issues. She has
not sought treatment through her case plan. Mother’s behavior in not seeking treatment
demonstrates that she has failed continuously and repeatedly to substantially remedy the
conditions that caused the child to be removed from her care. The record also shows that
she was homeless at the time her child was born. She likely remains homeless.
{¶53} Additionally, the record shows that Mother reported that she had her
parental rights involuntarily terminated with respect to two other children while she was
living in New York. Mother also reported that those children have been adopted.
{¶54} The social worker testified that in her opinion, the circumstances in this case
had not changed and the concerns of substance abuse, mental health, and the need for the
basic needs were still present. The child had been placed in an adoptive home, which is
the only home the child has known. The guardian ad litem opined that permanent custody
was in the best interest of the child.
{¶55} In light of the foregoing, we find that the trial court considered the relevant
statutory factors. We further find that the trial court’s determination that the child was
abandoned and permanent custody with CCDCFS was in the best interest of the child was
supported by clear and convincing evidence.
{¶56} M.G.’s first assignment of error is overruled.
{¶57} Judgment affirmed.
It is ordered that appellee recover of 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.
__________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR