In re T.T. , 2024 Ohio 2914 ( 2024 )

[Cite as In re T.T., 2024-Ohio-2914.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE T.T. :
No. 113548
A Minor Child :
[Appeal by J.T., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 1, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD21907503
Appearances:
David S. Bartos, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristin Davis, Assistant Prosecuting
Attorney, for appellee Cuyahoga County Division of
Children and Family Services.
SEAN C. GALLAGHER, J.:
Appellant, J.T. (“Father”), appeals the juvenile court’s decision
awarding permanent custody of his child, T.T. (“T.T.” or “the child”), to the
Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the
agency”) and terminating his parental rights. After a careful review of the record,
we affirm the juvenile court’s decision.
T.T. was born in August 2021 and was removed from Mother’s home
on August 27, 2021. On August 31, 2021, CCDCFS filed a complaint alleging T.T. to
be abused and neglected and seeking temporary custody of T.T. to the agency. In
the course of the proceedings, the child was committed to the predispositional
temporary custody of CCDCFS, was adjudicated to be abused and neglected, and
was then committed to the temporary custody of CCDCFS. The child was placed
with the paternal grandmother. On July 11, 2022, CCDCFS filed a motion to modify
temporary custody to permanent custody to CCDCFS. After several continuances
and further proceedings in the matter, the case proceeded to trial. Testimony and
evidence were presented in the matter. On December 8, 2023, the juvenile court
issued a decision in which it granted CCDCFS’s motion, committed the child to the
permanent custody of the agency, and terminated the parental rights of Mother and
Father.
Father timely appealed. He raises three assignments of error for our
review.
Under his first assignment of error, Father claims the juvenile court
erred by failing to appoint him counsel pursuant to R.C. 2151.352 and Juv.R. 4(A)
for the first day of trial and requiring him to proceed pro se.
R.C. 2151.352 provides, in relevant part, that a parent of a child “is
entitled to representation by legal counsel at all stages of the proceedings under this
chapter or Chapter 2152. of the Revised Code” and, if indigent, the right to appointed
counsel. R.C. 2151.352 also requires that “[i]f a party appears without counsel, the
court shall ascertain whether the party knows of the party’s right to counsel and of
the party’s right to be provided with counsel if the party is an indigent person.”
Juv.R. 4(A) similarly states, in relevant part, that “[e]very party shall
have the right to be represented by counsel and every . . . parent . . . the right to
appointed counsel if indigent. These rights shall arise when a person becomes a
party to a juvenile court proceeding.”
The Supreme Court of Ohio has recognized that “a parent has the
right to counsel at a permanent-custody hearing, including the right to appointed
counsel if the parent is indigent.” In re R.K., 2018-Ohio-23, ¶ 5, citing R.C. 2151.352;
Juv.R. 4(A). “Of course, the right to counsel can be waived.” Id. at ¶ 5.
In R.K., the juvenile court granted an attorney’s oral motion to
withdraw at a permanent-custody hearing at which the parent did not appear and
then the court proceeded with the hearing without making any inquiry and without
giving any consideration to whether the parent had waived the right to counsel. Id.
at ¶ 2, 8. The Supreme Court held that “when the state seeks to terminate a parent’s
parental rights, the parent has the right to counsel. The parent cannot be deprived
of that right unless the court finds that the parent has knowingly waived the right to
counsel.” Id. at ¶ 9. The circumstances of In re R.K. are not what occurred in this
matter.
Here, the record demonstrates that Father initially was represented
by counsel through the public defender’s office and he later retained private counsel,
who filed a notice of appearance. At the adjudicatory hearing on the complaint, and
when he was arraigned on the motion to modify temporary custody to permanent
custody, counsel for Father was present and the court explained legal rights to
Father. On June 13, 2023, the trial court granted the oral motion to withdraw of
Father’s retained counsel. The oral motion was made due to conflict and was
followed by a written motion that referenced the Code of Professional Responsibility
and indicated the reason for the request to withdraw was because counsel and
Father did not agree as to the best way to proceed forward with Father’s case. The
juvenile court granted Father’s motion for a continuance to retain new counsel, set
a trial date a month and a half later, and indicated that “[s]hould [Father] not retain
counsel he should be ready, willing and able to proceed on his own.” Father did not
file an affidavit of indigency or request the appointment of counsel. On the first day
of trial, the juvenile court personally addressed Father, who confirmed that he was
not able to retain an attorney and that he would be proceeding pro se.
It is recognized that “[c]ourts may infer a parent waived the right to
counsel by considering the totality of the circumstances, including the background,
experience, and conduct of the parent, or if the parent expressly waived the right to
counsel.” In re M.M., 2022-Ohio-579, ¶ 13 (11th Dist.), citing In re W.W.E., 2016-
Ohio-4552, ¶ 39 (10th Dist.). From the totality of circumstances herein, it can be
inferred that the juvenile court ascertained Father knowingly and voluntarily waived
his right to counsel when he indicated that he wished to proceed pro se. These
circumstances are not akin to the circumstances of the cases cited by Father.1
Additionally, the record shows that after CCDCFS put on its case in
chief on the first day of trial, a second day of trial was scheduled that was to include
Mother’s case in chief, Father’s case in chief, and the recommendation of the child’s
guardian ad litem. Father filed a motion for appointment of counsel, and the
juvenile court granted a continuance for the appointment of counsel. After Father
was appointed counsel, Father’s counsel did not make any argument to restart trial,
object to the admission of any evidence presented on the first day of trial, or raise
any challenge in allowing Father to proceed pro se on the first day of trial.
Ordinarily, an appellate court in such situations would review only for plain error.
See id. Plain error in civil cases is “sharply limited to the extremely rare case
involving exceptional circumstances where the error, left unobjected to at the trial
court, rises to the level of challenging the legitimacy of the underlying judicial
process itself.” (Emphasis in original.) Goldfuss v. Davidson, 79 Ohio St.3d 116, 122
(1997).
The record in this case shows that Father’s appointed counsel was
afforded the opportunity to review the transcript of the first day of trial and to
1 This was not the situation presented in In re M.L.R., 2002-Ohio-5958 (8th Dist.),
which is cited by Father. Among other distinguishing circumstances in that case, the
appellant’s attorney was allowed to withdraw the morning of the dispositional hearing in
appellant’s absence, no continuance was granted, the appellant was required to proceed
immediately without representation, and the appellant never waived the right to counsel.
Id. at ¶ 21-22.
prepare for the case. Also, the juvenile court granted the agency’s motion to reopen
its case in chief. On the second day of trial, Father’s counsel was able to cross-
examine two different agency witnesses, one of whom testified the first day of trial.
Another agency worker who testified the first day of trial and the paternal
grandmother were also present. Father was afforded the opportunity to present his
case through counsel. We conclude this case does not involve exceptional
circumstances that would justify reversal under the plain-error doctrine. We also
do not find any prejudicial error occurred. Accordingly, the first assignment of error
is overruled.
Under his second assignment of error, Father claims the juvenile
court’s decision to grant permanent custody to CCDCFS is erroneous because
CCDCFS had temporary custody of the child for less than 12 months when it filed its
motion to modify temporary custody to permanent custody. Father maintains that
the juvenile court lacked authority to proceed on the motion. We do not agree.
There is no dispute that the juvenile court erroneously found that
pursuant to R.C. 2151.414(B)(1)(d) “[t]he child has been in the temporary custody of
[a] public children services [agency] . . . for twelve or more months of a consecutive
twenty-two-month period.” However, the error was harmless at best. See In re
R.D.W., 2021-Ohio-4304, ¶ 25-26 (8th Dist.).
The agency did not rely on R.C. 2151.414(B)(1)(d) in filing its motion.
Rather, in its motion to modify temporary custody to permanent custody to
CCDCFS, the agency asserted that “the condition listed in R.C. 2151.414(B)(1)(a)
exists and that one or more of the factors listed in R.C. 2151.414(E) apply to the
parents of the [child] at issue.” The condition set forth in R.C. 2151.414(B)(1)(a)
requires that
[t]he 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, . . . 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.
“R.C. 2151.414(E) sets forth the elements necessary to satisfy a determination under
R.C. 2151.414(B)(1)(a), that the child cannot or should not be placed with either
parent within a reasonable time.” In re Schaefer, 2006-Ohio-5513, ¶ 38. The
juvenile court found this condition was satisfied.
In its journal entry, the juvenile court found that the motion to modify
temporary custody to permanent custody was filed on July 11, 2022, which the
record demonstrates was before the child had been in the agency’s temporary
custody for 12 months. Consistent with the agency’s reliance on
R.C. 2151.414(B)(1)(a), the juvenile court found pursuant to R.C. 2151.414(E) 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,” and the juvenile court found multiple
factors under R.C. 2151.414(E) were met, including R.C. 2151.414(E)(1) and (E)(4).
“A juvenile court is only required to find that one of these factors is met in order to
properly find that a child cannot or should not be placed with a parent.” In re R.D.W.
at ¶ 27, citing In re Ca.T., 2020-Ohio-579, ¶ 27 (8th Dist.). As later discussed, the
trial court’s determination under R.C. 2151.414(B)(1)(a) was supported by the record
in this case.2
Moreover, the juvenile court had the authority to commit the child to
the permanent custody of CCDCFS. See R.C. 2151.353(A)(4); R.C. 2151.414(B)
through (E). Although the trial court made an erroneous finding, “that does not
preclude us from finding that the trial court’s judgment [awarding permanent
custody to the agency] is nevertheless correct.” In re J.T., 2004-Ohio-5797, ¶ 36 (2d
Dist.). The second assignment of error is overruled.
Under the third assignment of error, Father claims the juvenile
court’s decision to grant permanent custody of the child to CCDCFS is against both
the manifest weight of the evidence and the sufficiency of the evidence.
“Under R.C. 2151.414(B)(1), a juvenile court may grant permanent
custody of a child to the agency that moved for permanent custody if the court
determines, ‘by clear and convincing evidence, that it is in the best interest of the
child’ to do so and that one of five factors enumerated in R.C. 2151.414(B)(1)(a)
through (e) applies.” In re Z.C., 2023-Ohio-4703, ¶ 7. “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 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.”
2 The circumstances of this case are markedly different from In re L.H., 2024-
Ohio-2271 (8th Dist.), which is cited by Father.
(Cleaned up.) Id. In this case, the juvenile court made each of the statutory
determinations and engaged in the requisite analysis.
“[T]he proper appellate standards of review to apply in cases
involving a juvenile court’s decision under R.C. 2151.414 to award permanent
custody of a child and to terminate parental rights are the sufficiency-of-the-
evidence and/or manifest-weight-of-the-evidence standards, as appropriate
depending on the nature of the arguments that are presented by the parties.” Id. at
¶ 18. Sufficiency of the evidence is a test of adequacy, while weight of the evidence
depends on its effect in inducing belief. Id. at ¶ 13, citing State v. Thompkins, 78
Ohio St.3d 380, 386 (1997). When applying a sufficiency-of-the-evidence standard,
a reviewing court should affirm the trial court when the evidence is legally sufficient
to support the judgment as a matter of law. Id. at ¶ 13, citing Bryan-Wollman v.
Domonko, 2007-Ohio-4918, ¶ 3. “When reviewing for manifest weight, the
appellate court must weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered.”
Id. at ¶ 14, citing Eastley v. Volkman, 2012-Ohio-2179, ¶ 20.
As already discussed above, the juvenile court determined
R.C. 2151.414(B)(1)(a) applies when it found that T.T., who was not yet 12 months
old at the time the agency’s motion was filed, “cannot be placed with one of the
child’s parents within a reasonable time or should not be placed with either parent”
and set forth the following two findings as to Father under R.C. 2151.414(E):
(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 home.
(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.
The juvenile court also considered all relevant best-interest factors,
including the enumerated factors under R.C. 2151.413(D)(1)(a)-(e), which are
specifically set forth in the court’s decision, 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.” In determining whether a grant of permanent custody is in
the best interest of the child, R.C. 2151.414(D)(1) requires a juvenile court to
“consider” all relevant factors, including the enumerated factors; however, the
statute does not require a juvenile court to expressly discuss each of the best-interest
factors. In re A.M., 2020-Ohio-5102, ¶ 31. “[T]he best interests of the child are
paramount in any custody case” and courts are to liberally interpret the statutes
under R.C. Ch. 2151 “to provide for the care and protection of the child . . . .” In re
A.B., 2006-Ohio-4359, ¶ 32, citing R.C. 2151.01(A).
The record herein demonstrates that the parties stipulated to the
allegations of an amended complaint, which included allegations that Mother has
substance-abuse issues and had a domestically violent relationship with Father, that
Mother needs to engage in services to address those issues, and that Mother needs
to meet the basic needs of the child. CCDCFS also alleged that Father would benefit
from substance-abuse services in order to appropriately care for the child. A case
plan and amended case plans were filed, services were provided, and semiannual
administrative reviews were conducted. Despite the agency’s efforts, the parents’
behaviors did not change and significant concerns remained.
Testimony and evidence presented in the matter show that neither
parent had demonstrated sobriety throughout the proceedings and there continued
to be incidents involving conflict between them. Mother did not make significant
progress on her case plan. Although Father completed intensive outpatient services,
he did not participate in the recommended residential treatment. During the course
of the case, he tested positive five times for alcohol and he did not comply with
weekly drug-screening requests by the agency. A family advocate who was assigned
to the case testified that Father does not believe he has an alcohol problem and,
when she was speaking to Father about an issue, he was loud and belligerent. Father
completed a program for domestic violence, but throughout the case, there were
several alleged incidents of domestic violence to which the police were called. In
relation to those incidents, Father argues that either there were no signs of violence,
Mother was the aggressor, or there were no charges or arrests. However, there was
a no-contact order in place between Mother and Father as well as evidence of an
ongoing relationship between them. During the approximate two-month window
between the first and second days of trial, neither parent complied with weekly
requests for drug screening and there was a domestic-violence incident that
occurred at Father’s apartment in which Mother was arrested and charged. It was
reported that Mother was staying with Father at the time because she was homeless,
despite the no-contact order being in place.
The testimony elicited at trial also showed that Father had supervised
visitation with the child that was switched from a community setting to the paternal
grandmother’s home and he has a good relationship with the child. However, Father
failed to take advantage of added opportunities to be more involved in the child’s life
and he failed to provide financial assistance to the relative caregiver. The child had
been in the care of the paternal grandmother since a few weeks old. The child is well
cared for and is very bonded with his caregiver. Other testimony and evidence were
presented in the matter that this court has thoroughly reviewed.
The record demonstrates that Father has not fully satisfied the
objectives of his case plan and has not shown that he can provide a safe, stable, and
sober environment for T.T. The ongoing worker assigned to the matter testified to
her belief that permanent custody to the agency was in the child’s best interest. The
guardian ad litem also recommended permanent custody to the agency.
Upon our review, we find there is clear and convincing evidence in the
record to support the juvenile court’s determinations and the evidence was legally
sufficient to support the trial court’s decision as a matter of law. We also do not find
the juvenile court’s decision to grant permanent custody to CCDCFS to be against
the manifest weight of the evidence. While Father points to evidence favorable to
him and argues certain allegations were not proven by CCDCFS, the juvenile court
was permitted to consider all material and relevant evidence in rendering its
disposition. We are not persuaded by any of Father’s other arguments.
After carefully reviewing the entire record, we overrule Father’s
assignments of error and affirm the juvenile court’s judgment granting permanent
custody of the 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