In re L.P. , 2023 Ohio 1821 ( 2023 )

[Cite as In re L.P., 2023-Ohio-1821.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE L.P., ET AL. :
: No. 112369
Minor Children :
:
[Appeal by E.P., Mother] :
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 1, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-21901367 and AD-21901368
Appearances:
Gregory T. Stralka, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young and Michele Wessel,
Assistant Prosecuting Attorneys, for appellee Cuyahoga
County Division of Children and Family Services.
SEAN C. GALLAGHER, J.:
Appellant, E.P. (“Mother”), appeals the decision of the Cuyahoga
County Court of Common Pleas, Juvenile Division (“juvenile court”), that granted
permanent custody of her children, L.P. and A.P., to the Cuyahoga County Division
of Children and Family Services (“CCDCFS” or “the agency”) and terminated her
parental rights. Upon a careful review of the record, we affirm the juvenile court’s
decision.
Facts and Procedural History1
L.P. and A.P. are the minor children of Mother. The children’s father
is deceased. On February 22, 2021, CCDCFS filed a complaint for neglect and for
temporary custody to CCDCFS. The children were committed to the
predispositional temporary custody of CCDCFS. The action was brought after the
children, at ages seven and eight, were discovered alone in a hotel room where they
had been living with Mother. Mother has two children who previously had been
placed in the legal custody of a relative. Mother has a history of substance-abuse
issues, which included heroin, fentanyl, and alcohol. She admitted relapsing in
February 2021 and was stressed because of an eviction and the recent death of her
husband.
In May 2021, the children were adjudicated to be neglected and were
committed to the temporary custody of CCDCFS. Mother stipulated to the
complaint as amended, including among other allegations, that Mother needed to
provide appropriate supervision for the children, to maintain a sober lifestyle, to
obtain stable and appropriate housing, and to ensure that she uses appropriate
judgment and parenting skills. A case plan was developed to address Mother’s
issues with substance abuse, housing/provision of basic needs, parenting, and
1 We have thoroughly reviewed the record and provide a brief overview herein.
mental health. During the course of the proceedings, semiannual administrative
reviews were conducted, two extensions of temporary custody to CCDCFS were
granted, amended case plans were approved, and relevant services were provided.
On July 27, 2022, CCDCFS filed a motion to modify temporary custody to
permanent custody to CCDCFS. The motion was set for trial in December 2022, but
trial was continued to January 2023 at Mother’s request.
Trial was held on January 9, 2023, nearly two years after the children
were removed from Mother’s care. On the date of the hearing, counsel for Mother
requested a continuance that was denied by the juvenile court.
The juvenile court heard testimony from the extended service worker
for CCDCFS on the case (hereafter “the caseworker”). The testimony reflects that
despite the assistance of the agency and Mother’s participation in services,
significant concerns remained. Although Mother completed an intensive out-
patient treatment program, since leaving the program, she had not produced any AA
meeting sheets and had not completed the twelve-step program. Mother had been
asked to leave a sober living house, which she falsely represented had closed. In
mid-August 2022, Mother refused a drug test, and then she had two positive
screenings — in late-August 2022 for fentanyl, and in September 2022 for
amphetamines, methamphetamines, fentanyl, and alcohol. Mother confirmed a
positive drug screen and stated she “believed that it was out of her system.” The
agency did not believe Mother had benefitted from the substance-abuse services she
completed. Mother had visitation with the children, but some of the conversations
she had with the children were deemed inappropriate and a supportive-visit coach
eventually was provided. Mother had completed a parenting class; however, the
children had expressed concern about not wanting to visit Mother, being alone with
Mother, and not wanting to return to her care. As the caseworker expressed, “[t]hey
feel that they’re safe where they are. They don’t feel that they’ll be safe if they go
back with their mother.” Mother had yet to secure stable housing despite being
offered referrals and given assistance. Shortly before the hearing, Mother provided
a copy of a signed lease; however, Mother had not maintained stable employment
throughout the case, and the social worker was not able to verify her current
employment.
The children initially were placed together in a foster home, and
thereafter, in March 2022, they were placed with A.K., who is an interested
individual. The children were described as thriving in their placement with A.K.
where their basic needs and emotional needs are being met. The children received
counseling throughout much of the case. Mother received grief counseling on her
own while in her treatment program but thereafter stopped. She began requesting
family counseling. However, it was recommended by the children’s counselor that
Mother first obtain a counselor of her own.
The caseworker believed permanent custody should be awarded to
the agency. The children’s guardian ad litem recommended permanent custody to
CCDCFS. The juvenile court conducted an in camera interview with the children
and was aware of their wishes.
On January 11, 2023, the juvenile court issued a journal entry in each
child’s case that granted CCDCFS’s motion to modify temporary custody to
permanent custody. The juvenile court engaged in the proper analysis, set forth
findings that are consistent with the record, and made the requisite statutory
determinations for awarding permanent custody pursuant to R.C. 2151.414. The
juvenile court found the factor under R.C. 2151.414(B)(1)(d) applied and determined
“by clear and convincing evidence” that “[t]he child has been in temporary custody
of a public children services agency * * * for twelve or more months of a consecutive
twenty-two-month period.” In each case, the juvenile court considered all relevant
best-interest factors, including the enumerated factors under R.C.
2151.414(D)(1)(a)-(e), which are specifically set forth in the juvenile court’s opinion,
and determined “by clear and convincing evidence that it is in the best interest of
the child to be placed in the Permanent Custody of CCDCFS.” The juvenile court
also included a reasonable-efforts determination in each decision, finding 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 the permanency plan, to wit:
reunification.” The juvenile court referenced relevant services that had been
provided. The juvenile court determined “by clear and convincing evidence that the
child cannot be placed with one of the child’s parents within a reasonable time or
should not be placed with either parent, pursuant to R.C. 2151.414(E)” and listed the
factors under R.C. 2151.414(E)(1), (2), (4), (14), (15), and (16).
The juvenile court committed each child to the permanent custody of
CCDCFS and terminated Mother’s parental rights. Mother timely appealed.
Legal Analysis
Although it is well established that the right to parent one’s child is a
fundamental right, the government has broad authority to intervene to protect
children from abuse and neglect. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000); R.C. 2151.01. Ultimately, the natural rights of a parent are
always subject to the ultimate welfare of the child, which is the controlling principle
to be observed. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 20,
citing In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
Mother claims under her first assignment of error that the agency
failed to provide sufficient evidence that it made diligent efforts to provide relevant
services pursuant to R.C. 2151.414(E)(1). Although the agency did not have to show
reasonable case planning and diligent efforts at the time of the permanent custody
hearing, “[t]o the extent that the trial court relie[d] on R.C. 2151.414(E)(1) at the
permanency hearing, the court must examine ‘the reasonable case planning and
diligent efforts by the agency to assist the parents’ when considering whether the
child cannot or should not be placed with the parent within a reasonable time.” In
re C.F. at ¶ 42.
In the case of each child herein, the juvenile court made a finding
under R.C. 2151.414(E)(1) that
[f]ollowing 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 its decision, the juvenile court observed relevant services to which
Mother was referred, including substance abuse, mental health, parenting, and basic
needs/housing services. Mother maintains that she worked to complete the case
plan objectives; however, she contends that she was not afforded relevant services,
such as family counseling, or provided other services in a timely manner, such as a
supportive visitation coach. We are not persuaded by these or her other arguments.
The record demonstrates that despite the reasonable case planning and diligent
efforts of the agency, significant concerns remained. Mother had not maintained
sobriety, had not maintained stable housing, had not maintained stable and
verifiable employment, and had failed to demonstrate significant changes in her
parenting and decision-making with the children.
At the time Mother began requesting family counseling, she had
stopped receiving counseling of her own. In the interest of the children, it was
recommended by the children’s counselor that Mother should obtain her own
counselor and that they could then all have counseling together. Although Mother
asserts that the agency should have done more and provided services like a
supportive visitation coach earlier, in considering reasonable case planning and
diligent efforts, it is not a question of whether the children services agency could
have done more; rather, the issue is whether the agency’s case planning and efforts
were reasonable and diligent under the circumstances of the case. See In re Q.S.,
8th Dist. Cuyahoga No. 111416, 2023-Ohio-712, ¶ 125, citing In re A.F., 8th Dist.
Cuyahoga No. 110503, 2021-Ohio-4519, ¶ 35.
Although Mother also takes issue with the caseworker referring to
herself as a “social worker” for CCDCFS, the witness admitted on cross-examination
that the reference was in a general sense and that she was not a licensed social
worker. Indeed, this court has previously recognized that in this context, such a
misstatement does not undermine credibility and is not reversible error. See In re
G.T., 8th Dist. Cuyahoga No. 110936, 2022-Ohio-1406, ¶ 46.
Insofar as Mother points to evidence favorable to her, the juvenile
court was permitted to consider all material and relevant evidence in rendering its
disposition. At the permanent-custody hearing, the juvenile court recognized what
Mother and the children had gone through and commended Mother, despite her
relapses, for continuing to work toward trying to get the children back. However, in
the nearly two years that the case was pending, Mother simply had not
demonstrated that she had benefitted from the services or changed her behavior so
as to permit reunification of the children at the time of trial. As the juvenile court
determined, Mother had failed to remedy the cause for removal. The juvenile court
did not abuse its discretion in reaching a conclusion under R.C. 2151.414(E)(1).
Upon our review, we find the juvenile court’s finding under R.C.
2151.414(E)(1) is supported by clear and convincing evidence in the record, as are
the juvenile court’s findings pursuant to R.C. 2151.414(E)(2), (4), (14), (15), and (16).
Although Mother refers to the lack of reasons to support each finding, the juvenile
court was not required to detail its reasoning. The findings were properly supported
by the record. Nonetheless, the juvenile court did include some of its reasoning in
regard to the best-interest factors under R.C. 2151.414(D)(1). In each case, the
juvenile court listed the enumerated factors and noted the following: “[t]he child
has a strong bond with caregiver, sibling, and caregiver’s mother”; “[t]he child does
not wish to be returned to Mother” and “the Court conducted an in-camera interview
with the child and is aware of the child’s wishes”; “[t]he child has been in Agency
custody since February, 2021[;] and [t]he child deserves a safe and stable home
environment where [he/she] is safe, [his/her] needs can be met, and [he/she] can
thrive” and “[t]his cannot be achieved with either parent as father is deceased and
mother has failed to remedy the cause for removal” and “[n]o other family members
are willing or appropriate to care for the children[.]” The juvenile court also noted
in regard to R.C. 2151.414(E)(16), which is a catchall provision, that Mother had two
other children removed from her care and placed in the legal custody of a relative.
Based upon our review of the entire record, we find there is clear and
convincing evidence to support all of the juvenile court’s statutory determinations,
and we do not find the decision to award permanent custody of each child to the
agency to be against the manifest weight of the evidence. The first assignment of
error is overruled.
Under her second assignment of error, Mother claims the juvenile
court abused its discretion when it failed to grant her request for a continuance to
allow the family to engage in services. Generally, the decision to grant or deny a
motion for continuance is within the sound discretion of the trial court and will not
be reversed absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11
L.Ed.2d 921 (1964).
Pursuant to R.C. 2151.414(A)(2), the juvenile court is to hold the
permanent-custody hearing no later than 120 days after the agency files its motion
for permanent custody, “except that for good cause shown,” the court may grant a
reasonable continuance, and the court is to dispose of the motion for permanent
custody no later than 200 days after the agency files its motion. Additionally,
pursuant to Juv.R. 23, “[c]ontinuances shall be granted only when imperative to
secure fair treatment for the parties” and pursuant to Loc.R. 35(C) of the Cuyahoga
County Court of Common Pleas, Juvenile Division, “[n]o case will be continued on
the day of trial or hearing except for good cause shown, which cause was not known
to the party or counsel prior to the date of trial or hearing * * *.”
Our review reflects that good cause was not shown in this matter and
that it was not in the best interest of the children to delay their need for permanency.
The stated basis for the continuance was that Mother “had recently obtained
housing” and that there were ongoing issues “between mother and the children that
need[ed] to be addressed through more professional services,” which “Mother’s
been asking for * * * for some time * * *.” CCDCFS opposed the continuance, noting
the trial date had already been continued upon Mother’s request in December 2022,
and that the Agency had only recently received a lease agreement from Mother,
despite asking for months for the information. The juvenile court denied the request
at the start of the proceeding; but Mother renewed the request at its conclusion, with
counsel asking for time for Mother to demonstrate six months of sobriety and for
the opportunity to have the family engage with professionals to address the
children’s relationship with Mother. The agency again opposed the continuance,
and the guardian ad litem also opposed the request. Mother’s renewed request for
a continuance was denied by the juvenile court.
The juvenile court did not find good cause for continuing the matter.
The juvenile court stated that upon the testimony presented and “where we’re at in
this case as well as my in-camera, I do not find that it would be in the best interest
of the children to continue this any further.” Indeed, the cases had been pending for
nearly two years, during which time extensions and a continuance had already been
granted. The caseworker indicated that it was not realistic to expect Mother to be
able to have documented sobriety of six months by the two-year mark. The guardian
ad litem also expressed that reunification was not going to occur within the next 30
days.
After examining the record in this case, we conclude that the juvenile
court did not abuse its discretion in denying the requested continuance. Mother’s
second assignment of error is overruled.
After thoroughly reviewing the entire record, we overrule Mother’s
assignments of error and affirm the juvenile court’s decisions granting permanent
custody of each child to CCDCFS.
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.
_____________________________
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR