In re K.F. , 2023 Ohio 1286 ( 2023 )

[Cite as In re K.F., 2023-Ohio-1286.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.F., ET AL. :
: No. 112086
Minor Children :
:
[Appeal by K.G., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 20, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-19914703 and AD-19914704
Appearances:
Valore & Gordillo LLP and Matthew O. Williams, for
appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
MARY EILEEN KILBANE, J.:
Appellant K.G. (“Mother”) appeals from the juvenile court’s decision
awarding permanent custody of her minor children K.F. (d.o.b. 11/13/2014) and T.F.
(d.o.b. 11/2/2016) (collectively “the children”) to the Cuyahoga County Division of
Children and Family Services (“CCDCFS” or “the agency”). For the following
reasons, we affirm.
Factual and Procedural History
On December 9, 2019, the agency filed a complaint for abuse, neglect,
dependency and temporary custody to the agency with respect to mother’s three
children, K.F., T.F., and K.T. (d.o.b. 1/16/19). K.F. and T.F. share a biological father,
Tr.F. Tr.F. failed to establish paternity of the children, had previously engaged in
domestic violence with Mother, and did not participate in the underlying
proceedings; as such, Tr.F. is not relevant to this appeal. K.T.’s father, S.T., was in a
relationship with Mother for the duration of the underlying case and actively
participated in the case with respect to K.T. The instant appeal involves only K.F.
and T.F.; a separate appeal was filed by S.T. regarding the custody of his child, K.T.1
Thus, we will address the facts of the case as they relate to K.F. and T.F.
The complaint alleged that on or about December 5, 2019, all three
children were observed with multiple injuries. K.F. had injuries on his ear, chest,
and back. T.F. had a black eye and injuries to his forehead, stomach, arm, and back.
Medical professionals determined that the injuries to K.F. and T.F. were from being
hit with a cord; police intervention was required, and a criminal investigation was
pending. The complaint went on to allege that Mother had an anger management
1K.T. is not a subject of this appeal. The juvenile court granted K.T.’s father’s
motion for legal custody. CCDCFS appealed that decision in In re K.T., 8th Dist.
Cuyahoga No. 111996.
problem for which she was not currently in treatment and regularly hit the children
with cords and threw things at them.
The complaint further alleged that Mother failed to provide for the
children’s basic needs, specifying that the children lacked clean clothing and smelled
of urine. The complaint further alleged that Mother had depression, posttraumatic
stress disorder, and anxiety, for which she was not currently in treatment, which
prevented her from providing a safe home for the children.
The magistrate granted the agency’s motion for predispositional
temporary custody and ordered Mother to have no contact with the children. The
children were first placed in a temporary placement and eventually placed with
Mother’s godmother, (“Godmother”), and her husband (collectively, “the foster
parents”), in February 2020. The children remained with the foster parents for the
duration of these proceedings.
In October 2020, CCDCFS filed an amended complaint, alleging that
Mother had been criminally charged with multiple counts of felony and
misdemeanor endangering children and misdemeanor domestic violence related to
all three children’s injuries. In December 2020, the court found the children abused,
neglected, and dependent. At that time, the court lifted Mother’s no-contact order.
The court granted two extensions of temporary custody. In January
2021, CCDCFS moved for its first extension of temporary custody, asserting that
Mother and S.T. needed additional time to complete the case plan and that Mother
needed more time to rebuild her relationship with the children. The court granted
this motion. In May 2021, CCDCFS moved for a second extension of temporary
custody. The agency’s motion acknowledged Mother’s progress but asserted that
because all of the case plan objectives had not yet been completed, “the risk to the
children [had] not been sufficiently reduced.”
On November 9, 2021, CCDCFS filed a motion to modify temporary
custody to permanent custody with an affidavit from agency social worker April
Palidar (“Palidar”) in support of the motion. Palidar’s affidavit averred that Mother
had been convicted in her criminal case on three counts of child endangering and
one count of domestic violence, with all three children as victims.2 Palidar further
averred that Mother was unsuccessfully discharged from probation in that case, that
the children continued to express fear of their mother, that Mother had been
inconsistent in mental health services and had failed to benefit from family
counseling with the children, and that Mother and S.T. continued to “engage in an
unstable and volatile relationship which impacts their ability to provide for the basic
and emotional needs of the children.”
On February 28, 2022, S.T. filed a motion for legal custody of K.T.
The children’s guardian ad litem (“GAL”) submitted reports on
February 18, 2020 (recommending temporary custody to the agency), January 26
2021 (recommending a first extension of temporary custody), February 25, 2021,
2 In Mother’s criminal case, she pled guilty to three counts of endangering children,
a misdemeanor, in violation of R.C. 2919.22(B)(1), with all three children as victims, and
one count of domestic violence, a misdemeanor, in violation of R.C. 2919.25, with K.F. as
a victim.
and June 30, 2022. In her final report, the GAL noted that K.F. was actively engaged
in trauma therapy, but has continued to talk about the things Mother did to him and
his nightmares, and he reported being nervous that something bad would happen to
him if he returned to his Mother. The GAL noted that while the children had made
some progress in their time away from Mother, they began to regress when visitation
with Mother resumed. The GAL ultimately recommended that it was in the
children’s best interests for the agency’s motion to modify temporary custody to
permanent custody be granted. Specifically, the GAL stated:
The children have been removed from their Mother’s custody for over
2 years. The children were adjudicated abused and dependent. The
children K.F. and [T.F.] received non-accidental injuries caused by
their Mother. Mother had a restraining order and had not visited the
children for about a year. Visitation has been detrimental for the
children and no progress [has been] reached with family counseling.
The children K.F. and [T.F.] continue working with mental health
providers for their trauma. CCDCFS has concerns regarding Mother’s
mental health. Social worker reported [Mother’s] housing is not
appropriate. Mother and [S.T.’s] relationship is unstable. [S.T.]
indicated on 5/17/2022 that he is looking for a suitable house for the
family. He indicated that he is in a relationship with the children’s
mother and both wish reunification with the three children. Social
worker reported concerns regarding [S.T.’s] anxiety [and] past
domestic violence with the children’s Mother. The children have been
placed with a kinship placement with fictive kin. The children’s basic
needs are met at placement. The children have a strong bond with
caregiver.
On July 1, 2022, the court held a trial on the agency’s motion for
permanent custody and S.T.’s motion for legal custody of K.T. Godmother testified
that she was Mother’s godmother, having grown up with Mother’s mother.
Godmother testified that the children were placed with her in February 2020.
Godmother testified that when the children were first placed with her and her
husband, they were underweight. Godmother testified in detail about the various
trauma responses the children exhibited. She testified that the children were very
loving and liked to laugh, but they also did not like to be touched, would jump if
someone spoke loudly, ate off the floor, and had other behavioral issues. Godmother
testified that K.F. and T.F. had regular nightmares.
With respect to K.F., Godmother testified that he pulled his hair out
several times and regularly had bathroom accidents when he was nervous or
anxious. Godmother testified that this behavior often coincided with seeing his
Mother.
With respect to T.F., Godmother testified that he would purposely
misbehave on days that visits with Mother were scheduled, saying, “[H]e has been
purposely misbehaving on visit day so that I would maybe ground him and he would
say, well, I will stay home and you don’t have to — you know, you can ground me. I
will stay home.” Godmother also testified that T.F. had a lot of anger and gets
anxious; he sometimes makes himself throw up when he is upset.
Godmother testified that she had a relationship with Mother, but it
primarily centered around communications regarding visitation and other matters
related to the children. Godmother testified that she and her husband would intend
to adopt the children if they were allowed. She further testified that she had spoken
to S.T. about the possibility of remaining involved in the children’s lives if
permanent custody were to be granted, saying that it would be possible with the help
of a therapist and after the children had healed from their trauma.
When asked if the children had ever said anything to her about what
their lives were like with Mother, Godmother stated:
So they started to tell us stories here and there, and then when [Kelsey
Cirkvencic, the children’s licensed professional counselor] was
involved, [K.F.] started to tell more stories.
And so she has heard these stories as well, and [K.F.’s] been very
consistent with the details and he’s talked about one time he pooped in
his pants and got in trouble and said that [Mother] was going to call the
police on him and was gonna leave him by the side of the road because
he wasn’t allowed to do that.
And still that’s fixated in his head. Kelsey did mention once that she
thinks that’s why some of the bathroom issues are going on with him,
because he talks about it a lot. He’s very, very focused on it.
He said that [T.F.] used to crawl out of the window all the time and that
they were left alone in the house a lot, and that also he said that he ate
chicken nuggets one time that were [T.F.’s] and so he had to sleep on
the porch for a while at night, locked out on the porch, and he gets
hysterical about shutting the door on him.
He leaves the bathroom door open. He doesn’t like to shut it all the
time. He’s starting to close it a little now, but he’s just like very scared
about shutting doors and things and he said he couldn’t get in and it
scared him, and [T.F.] talks about being locked in this kitchen once.
I don’t know details on that because he’s not very forthcoming, and
again, you know, he was really little and so I’m not sure about that.
The children’s licensed professional counselor, Kelsey Cirkvencic
(“Cirkvencic”), testified that she had worked with K.F. beginning in May 2020 and
T.F. beginning in May 2021. Cirkvencic testified that the agency referred the
children to her due to physical abuse. Cirkvencic testified that she had diagnosed
K.F. and T.F. with posttraumatic stress disorder related to physical abuse and
trauma by Mother. Cirkvencic went on to testify that at one point, she had attempted
to integrate Mother into her therapy with the children, and Mother often seemed
disengaged. Cirkvencic’s testimony generally corroborated Godmother’s testimony
related to the children’s trauma-related behavioral issues.
Palidar testified that she was the agency social worker assigned to this
case in December 2020. Palidar testified as to Mother’s criminal case stemming
from her physical abuse of the children and resulting convictions for child
endangering related to all three children. Palidar also testified that she had
discussed the case with Mother and learned that Mother had been unsuccessfully
discharged from her probation after testing positive for drugs.
Palidar testified that Tr.F. had very sporadic involvement in the case
and had not consistently participated in visitation with the children or with the case
overall, and he had a 2018 domestic violence criminal case in a different jurisdiction
in which Mother was the victim. Palidar also testified that the children had reported
that Mother’s abuse was ongoing, but at some point during the pendency of the case,
Mother and S.T. were approved for unsupervised visitation. Palidar testified that
unsupervised visits could not happen at Mother and S.T.’s home because the agency
had safety and sanitation concerns; the visits happened in community
environments, such as parks and libraries. Palidar testified that as of the date of
trial, she would not recommend giving Mother unsupervised in-home visitation.
Further, she testified that she still had concerns about Mother’s ability to parent the
children, stating that although Mother had completed a parenting program, the
children continued to express that they were fearful of Mother and T.F.’s anxiety in
particular continued to worsen related to Mother. Palidar ultimately testified that
she believed it was in the children’s best interests to remain with the foster parents
permanently.
S.T. testified on his own behalf in support of his motion for legal
custody of K.T. Finally, the GAL testified as to her recommendation that all three
children should be placed in the agency’s permanent custody. The GAL reiterated
that the children had been removed from their Mother for over two years, K.F. and
T.F. had intentional physical injuries caused by their Mother while she was living
with S.T., and even when Mother was able to participate in visitation with the
children, visitation was ultimately detrimental to the children due to the trauma.
The GAL testified that Mother was engaged in various case plan services and was
compliant with parenting classes and the agency had given Mother an opportunity
to try to rebuild her bond and trust with the children, but that did not happen.
On September 29, 2022, the juvenile court granted the agency’s
motion for permanent custody of K.F. and T.F. and granted S.T.’s motion for legal
custody of K.T. In corresponding journal entries, the court made the following
findings with respect to K.F. and T.F.:
The Court finds by clear and convincing evidence that pursuant to
O.R.C. [sic] 2151.414(B)(1):
(d) the child has been in temporary custody of a public children services
agency or private child placing agency for twelve or more months of a
consecutive twenty-two month period.
The Court finds that the child’s continued residence in or return to the
home of [Mother] or [Tr.F.] would be contrary to the child’s best
interest.
The Court further finds that reasonable efforts were made to prevent
the removal of the child from the home, or to return the child to the
home and finalize a permanency plan, to wit: reunification. Relevant
services provided to the family include: Mental Health counseling,
substance abuse counseling, and parenting courses.
The court went on to cite statutory factors R.C. 2151.414(D)(1)(a) through (e) before
going on to find, by clear and convincing evidence, that a grant of permanent custody
was in the best interests of the children.
Mother appeals, presenting two assignments of error for our review:
I. The trial court’s award of permanent custody and termination of the
appellant’s parental rights is against the manifest weight of the
evidence.
II. The trial court erred when it allowed hearsay testimony concerning
statements about abuse allegedly made by appellant’s minor children.
Law and Analysis
I. Manifest Weight
Mother’s first assignment of error argues that the trial court’s award
of permanent custody to the agency and the termination of her parental rights was
against the manifest weight of the evidence. Specifically, Mother argues that the
court’s termination of her parental rights was against the manifest weight of the
evidence because the alleged abuse was poorly described in the record, there was
little evidence to suggest that the children’s emotional and behavioral problems had
improved while in agency custody, and the agency’s allegations that Mother was not
benefiting from case plan services were unsupported by the record.
A parent has a fundamental interest in the care and custody of his
children. In re L.W., 8th Dist. Cuyahoga No. 107708, 2019-Ohio-1343, ¶ 20.
However, parental rights are not absolute: “‘The natural rights of a parent are always
subject to the ultimate welfare of the child, which is the polestar or controlling
principle to be observed.’” In re L.D., 2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29 (8th
Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
“By terminating parental rights, the goal is to create ‘a more stable life’ for dependent
children and to ‘facilitate adoption to foster permanency for children.’” In re R.G.,
8th Dist. Cuyahoga No. 104434, 2016-Ohio-7897, ¶ 21, quoting In re N.B., 8th Dist.
Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, citing In re Howard, 5th Dist.
Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, 5 (Aug. 1, 1986).
On a motion for permanent custody, a juvenile court must satisfy the
two-prong test set forth in R.C. 2151.414 before it can terminate parental rights and
grant permanent custody to the agency. The juvenile court must find by clear and
convincing evidence that any one of the conditions set forth in R.C. 2151.414(B)(1)(a)
through (e) apply and that it is in the best interest of the child to grant permanent
custody to the agency. In re R.G., 8th Dist. Cuyahoga No. 108537, 2020-Ohio-3032,
¶ 19-20.
Clear and convincing evidence has been defined as “‘that measure or
degree of proof which is more than a mere “preponderance of the evidence,” but not
to the extent of such certainty as is 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 K.H., 119 Ohio St.3d 538,
2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus.
The juvenile court must find by clear and convincing evidence that
one of the following five conditions applies under R.C. 2151.414(B)(1):
(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 service 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).
Here, Mother does not dispute that the court satisfied the first prong
by finding, pursuant to R.C. 2151.414(B)(1)(d), that the children were in the
temporary custody of CCDCFS for “twelve or more months of a consecutive twenty-
two month period.” At the time of trial, the children had been in agency custody for
over two years. Instead, Mother challenges the second prong, which requires a
juvenile court to find that permanent custody is in the best interest of the child.
R.C. 2151.414(D) provides a list of factors for the court to consider in
determining the best interest of the child. Here, the court considered the factors in
R.C. 2151.414(D)(1)(a) through (e):
(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.
Specifically, the court’s journal entry referred to the children’s ongoing trauma
related to Mother and the fact that they were “frightened and hesitant to being in
her company.” The court also referred to the wishes of K.F. and T.F., stating that
they “voiced their concerns to their [social] worker and advised her that they do not
want to be around Mother” and moreover, refused to participate in family
counseling with Mother. The court also referred to the children’s custodial history
and secure placement with the foster parents.
This, together with the ample evidence in the record of Mother’s
abuse of the children, shows that clear and convincing evidence supported the trial
court’s decision to grant the agency’s motion for permanent custody. Mother’s
arguments lack merit.
While Mother argues that the alleged abuse is “extremely poorly
described” in the record, our review of the record reveals an extensive depiction of
Mother’s ongoing abuse of the children. Each witness testified, in varying degrees,
as to the nature of the abuse and its ongoing impact on the children. While the
children did not testify at trial, their wishes were communicated clearly through the
GAL’s testimony and multiple reports. Moreover, the record reflects that Mother
pleaded guilty to endangering children in a separate criminal case that resulted from
her abuse of the children. Mother’s assertions in her briefs are entirely at odds with
the overwhelming majority of the evidence in the record.
Mother also attempts to misconstrue her children’s trauma responses
as evidence that, contrary to the agency workers’ testimony, the children were not
“improving” in their placement with Godmother. This is an extreme distortion of
the testimony and evidence in the record. Godmother, the children’s licensed
professional counselor, the agency social worker, and the GAL all testified as to how
the children’s behavioral issues were a direct result of their abuse at the hands of
Mother. Specifically, testimony was elicited that certain behavior correlated with
the children resuming contact with Mother, in the form of visitation, following the
termination of the no-contact order in place for the first year of this case. The
children’s emotional and behavioral issues that Mother attempts to use as evidence
that they are not thriving in agency custody were a product of their ongoing fear of
Mother. Finally, with respect to whether Mother has benefited from case plan
services, the record reflects that Mother had successfully engaged in numerous case
plan services. The record also reflects, however, that Mother was inconsistent with
mental health treatment and pled guilty to endangering the children. Furthermore,
even if Mother had met all of her case plan goals to the satisfaction of the agency and
the court, it is well established that
[a] parent can successfully complete the terms of a case plan yet not
substantially remedy the conditions that caused the children to be
removed — the case plan is simply a means to a goal, but not the goal
itself. Hence, the courts have held that the successful completion of
case plan requirements does not preclude a grant of permanent custody
to a social services agency.
In re S.P., 8th Dist. Cuyahoga No. 111081, 2022-Ohio-2277, ¶ 38 (internal citations
omitted). Here, Mother’s substantial compliance with the case plan clearly failed to
remedy the conditions that caused the children to be removed. Therefore, the trial
court’s grant of permanent custody to the agency was not against the manifest
weight of the evidence. Mother’s first assignment of error is overruled.
II. Hearsay
In her second assignment of error, Mother argues that the trial court
erred when it allowed hearsay testimony concerning statements about abuse
allegedly made by the children. Specifically, Mother challenges testimony from
Godmother and Cirkvencic, over objection, regarding “stories” told by the children
about their alleged abuse at Mother’s hands.
The rules of evidence apply to dispositional proceedings pursuant to
R.C. 2151.353(I). Nevertheless, a trial court has broad discretion in admitting or
excluding evidence, and absent an abuse of discretion and a showing of material
prejudice, a trial court’s ruling on the admissibility of evidence will be upheld. In re
C.J., 8th Dist. Cuyahoga Nos. 100532 and 100534, 2014-Ohio-2403, ¶ 37, citing In
re J.T., 8th Dist. Cuyahoga Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 67, citing
State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d 1157 (1985). Further, the
juvenile court is presumed to be able to disregard improper testimony. Id. at ¶ 38.
Therefore, the admission of hearsay testimony in parental rights cases, even if error,
is not considered prejudicial unless it is shown that the judge relied on improper
evidence in making their decision. Id., citing In re J.T., citing In re Lucas, 29 Ohio
App.3d 165, 504 N.E.2d 472 (3d Dist.1985).
As an initial matter, we note that much of the testimony Mother
appears to be challenging was offered to provide an explanation for the children’s
ongoing behavioral and emotional issues, and not to prove that the children were
abused. Even if Mother is correct in her assertion that the testimony of Godmother
and Cirkvencic constituted inadmissible hearsay, she has failed to establish, or even
argue, that the trial court relied on this testimony in making its decision. This is
especially so where evidence of the children’s trauma-related behavioral issues
appeared throughout the record, and not just in the testimony from these two
witnesses, and evidence of the abuse the children suffered also appeared throughout
the record, including in the form of evidence regarding Mother’s convictions for
endangering children. For these reasons, we cannot conclude that the trial court
abused its discretion in admitting testimony from Godmother and Cirkvencic as to
the children’s accounts of their abuse. Therefore, Mother’s second 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.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
LISA B. FORBES, J., CONCUR