In re K.S. , 2024 Ohio 3312 ( 2024 )

[Cite as In re K.S., 2024-Ohio-3312.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.S., ET AL. :
: No. 113829
Minor Children :
:
[Appeal by R.D., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 29, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD22912856 and AD22912857
Appearances:
Christina M. Joliat, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
MARY EILEEN KILBANE, P.J.:
Appellant, R.D. (“Mother”), appeals from the juvenile court’s March
7, 2024 judgment entries that terminated her parental rights and granted
permanent custody of her minor children, B.S. (d.o.b. 12/16/2017) and K.S. (d.o.b.
1/15/2020), to the Cuyahoga County Division of Children and Family Services (“the
agency” or “CCDCFS”).1 For the following reasons, we affirm the juvenile court’s
judgment.
Factual and Procedural History
On December 15, 2022, the agency filed complaints for neglect and
temporary custody to CCDCFS in regard to B.S. and K.S. that alleged:
(1) Mother has substance abuse issues related to fentanyl that prevent
her from providing appropriate care for her children, and Mother
overdosed on fentanyl while caring for the children in her home.
(2) Mother suffers from anxiety and depression that impact her ability
to provide appropriate care for the children; Mother is overwhelmed by
her caretaking responsibilities.
(3) Ke.S., biological father of B.S. and alleged father of K.S., has
substance abuse issues related to alcohol and opioids. Ke.S. recently
completed an in-patient treatment program and resides at a sober-
living house so that he is unable to provide the children’s basic needs.
(4) Ke.S. has multiple convictions for domestic violence and drug
possession.
(5) K.D., the presumptive father — by marriage — of K.S., has failed to
support, visit, or communicate with K.S. Mother and K.D. are married,
living separately, and K.D.’s whereabouts are unknown.
(6) John Doe, alleged father of K.S., has failed to establish paternity or
to support, visit, or communicate with the child since her birth.
The complaints sought a disposition of temporary custody to CCDCFS.2
On December 20, 2022, the trial court appointed Elba Heddesheimer
as guardian ad litem (“GAL”) for B.S. and K.S. On January 9, 2023, the trial court
1 The agency filed separate complaints on behalf of B.S. and K.S. in Cuyahoga J.C.
No. AD22912857 (“B.S.’s case”) and Cuyahoga J.C. No. AD22912856 (“K.S.’s case”),
respectively. The two cases were tried together, the appeal incorporates the trial court’s
March 7, 2024 judgment entries issued separately in the two cases that are nearly identical,
and this opinion references both cases collectively.
2 Mother filed the instant appeal; Ke.S. and K.D. did not appeal the trial court’s
judgments. Thus, this opinion addresses only the termination of Mother’s parental rights.
committed the children to the predispositional emergency temporary custody of the
agency and temporarily placed them with a relative. Substance abuse services and
a safety plan were offered to Mother, and she was provided a referral for an alcohol
and other drug assessment. On that same date, the court appointed counsel for
Ke.S., the biological father of B.S. and alleged father of K.S.
On January 31, 2023, a case plan for Mother was filed with the court.
The case plan indicated Mother overdosed on fentanyl twice in November 2022 —
once in front of her children — and tested positive for cocaine, amphetamines, and
benzodiazepines on December 7, 2022. The plan noted Mother had parenting
deficits that impacted the well-being and care of the children, and Mother expressed
feelings of being overwhelmed when dealing with daily tasks within the home. The
plan stated Mother was diagnosed with anxiety and depression. The case plan
recommended Mother participate in parenting classes, a psychiatric/psychological
evaluation, a drug and alcohol assessment, and submit random urine screens.
The case plan also noted Ke.S.’s history of mental health issues,
alcohol abuse, and his recent involvement with an intensive outpatient program.
Ke.S. was recommended to undergo a psychiatric/psychological assessment,
drug/alcohol assessment, and submit random urine screens. Pursuant to the case
plan, both Ke.S. and K.D. were to contact the child support enforcement agency and
establish paternity for the children.
The case plan granted Mother and Ke.S. weekly supervised visitation
with the children. While the children were initially placed temporarily with a
relative, the relative was unwilling or unable to provide care for the children, and
they were moved to foster care. The case plan identified reunification as its goal for
the children and Mother.
K.D. and Mother were married at the time of these proceedings and,
therefore, K.D. was presumed by marriage to be the father of K.S. On February 15,
2023, the trial court appointed counsel for K.D.
On March 1, 2023, the GAL submitted a report to the court following
her contact with Mother, Ke.S., B.S., K.S., the foster parents, and caseworker Nikita
Phillips (“Phillips”). According to the GAL, the children’s basic needs were met and
they both needed speech therapy. The foster parents also had concerns that K.S.
should be tested for autism. Mother informed the GAL that she was engaged in an
intensive outpatient program three times a week and received mental health
services, including weekly therapy. Mother reported her sobriety date as November
2022, and stated she provided urine screens twice weekly.3 The GAL stated she had
had no contact with Ke.S., who was reportedly in a residential drug treatment
facility. The number provided to the GAL for K.D. was not in service, and she was
unable to contact him. The GAL stated that at that time it was in the children’s best
interest to grant temporary custody to the agency.
3 Other than a statement in the agency’s June 6, 2023 semiannual review (“SAR”) —
that referenced a recommendation in March 2023 for Mother’s attendance at a partial
hospitalization program — the record does not support Mother’s claim that she was
engaged in an intensive outpatient program, submitted urine screens, and received mental
health services in March 2023.
On April 10, 2023, the magistrate conducted a hearing that the
following individuals attended: Mother and her counsel, K.D. and his counsel, the
GAL, counsel for K.S.; counsel for Ke.S., counsel for CCDCFS, and Phillips. The trial
court granted the agency’s oral motion to amend the complaint, and Mother and
K.D. stipulated to the allegations of the amended complaint. The court heard
evidence from Phillips, accepted the GAL’s recommendation, and adjudicated K.S.
and B.S. to be neglected. The trial court terminated the predispositional custody
and committed the children to the temporary custody of CCDCFS. The court further
found that Mother had been referred to mental health services, parenting classes,
and an alcohol and other drug assessment, and she visited weekly with the children.
The court found that Mother failed a drug screening on March 30, 2023, and the
court ordered Mother to submit to a drug test within 24 hours. K.D. denied
parentage and was referred for paternity testing. Alleged father Ke.S. was not
engaged with the agency; he may have been in sober living.
On April 17, 2023, Mother started an intensive outpatient program at
Caritas Wellness Center (“Caritas”) that required treatment three times a week for
90 days.
On June 6, 2023, the agency completed SAR. The SAR noted the
children’s placement with foster parents who met their basic and special needs.
Both children were to be referred for mental health services, and K.S. was to undergo
testing in regard to autism. As of the date of the review, Mother had not participated
in any mental health services, and the parenting classes were scheduled to begin in
July 2023. The review noted Mother had not made significant progress on her case
plan services and failed to demonstrate behavioral changes. The review also noted
that in March 2023, Asurgent Health recommended that Mother attend a partial
hospitalization program that she did not pursue.4 The SAR indicated Mother
received substance abuse treatment at Caritas. The SAR stated Ke.S., a resident at
a sober living facility, was unable to provide basic needs for the children, and neither
Ke.S. nor K.D. had established paternity of K.S.
In September 2023, Caritas discharged Mother due to inconsistent
attendance, positive urine screens, and failure to participate in mental health
services and parenting classes. Caritas recommended Mother complete residential
treatment. In October 2023, the agency referred Mother to New Visions Unlimited
(“New Visions”) for mental health and parenting classes.
On October 31, 2023, the agency approved a kinship home
assessment for the children’s alternative placement with K.D.’s brother and his
husband. On November 9, 2023, the agency filed a motion to modify temporary
custody to permanent custody to CCDCFS.
On December 8, 2023, the agency filed a SAR report that indicated
the children continued to reside with their foster parents where their basic and
special needs were met. According to the report, Mother participated in weekly
4 The record does not include Mother’s records from Asurgent Health, and the
testimony did not reference any treatment from this provider.
supervised visitation, but found it difficult to balance her work responsibilities and
visitation:
[Mother] is often late which causes the children distress. She also
struggles with keeping them busy or entertained. She does not bring
activities for them to do so they become bored and this leads to
behavior increasing. This leads to times when [Mother] is
overwhelmed during visits and becomes upset and wants the visit to
end early.
Dec. 8, 2023 SAR report, p.2. Additionally, the report stated that Mother failed to
engage in services at New Visions and visitations between the children and the
kinship providers had been initiated.
On February 15, 2024, the GAL requested that the court appoint
counsel for B.S. based upon a perceived conflict between the child’s wishes to live
with Mother and the child’s best interest, and the trial court subsequently appointed
counsel.
On February 26, 2024, the GAL provided an updated report following
contact with Mother, Ke.S., B.S., K.S., the foster parents, and Phillips. She described
the children as very active, and both had been referred for appropriate evaluations.
The GAL reported that B.S. “is close to his mother and has a strong bond with her.”
The GAL stated that Mother takes prescribed medication for her anxiety. Mother
acknowledged to the GAL that she had not completed the recommended services
and voiced her need to work in order to pay the mortgage and care for her parents
who live with her. The GAL noted there was an outstanding warrant for Mother’s
arrest due to her failure to comply with the terms of her probation. The GAL
described the children as “young and vulnerable” with behavioral issues and speech
delay that require intervention. The GAL had no contact with Ke.S. or K.D. The
GAL stated B.S. and K.S. needed “a stable and permanent home” and recommended
it was in the children’s best interests to grant permanent custody to the agency.
On March 6, 2024, the children moved into the home of the kinship
providers.
On the same date, the trial court conducted trial on the agency’s
motion to modify temporary custody to permanent custody. None of the parents —
Mother, K.D., and Ke.S. — were present for trial, and their counsel requested a
continuance of the trial. Mother’s counsel stated, “I did receive information, as
much as possible in the circumstances from my client, that she is being admitted to
Legends Recovery today.” Tr. 6. Counsel argued for a continuance because Mother
was making her third attempt at substance abuse treatment since the case was filed
and no prior continuances had been granted. The agency opposed the motion
arguing that the children had been in its custody for over a year; Mother had failed
to complete any services; Mother’s alleged participation in treatment starting on the
day of trial appeared dilatory; the length of delay of trial was uncertain; all necessary
witnesses were present and prepared to testify; and the local rules precluded
continuance on the day of trial if the circumstances leading to the continuance —
such as in this scenario — were known prior to trial. The trial court denied the
parties’ motion for continuance.
The trial court heard testimony from Angel Bragg (“Bragg”), a
CCDCFS case worker; Jenny Lemmer (“Lemmer”), the clinical director of New
Visions; and the GAL.
Angel Bragg
Bragg testified that B.S. and K.S., then aged six and four, came under
the agency’s custody when Mother overdosed on fentanyl at her home, in the
presence of the children. Bragg stated the children entered the agency’s temporary
custody, and the agency developed a case plan with a goal for reunification of the
family.
Bragg testified that the agency referred Mother to Caritas in April
2023, for substance abuse and mental health services as well as parenting classes.
Mother participated in an intensive outpatient program for substance abuse but was
discharged from the program in September 2023, due to nonengagement. Per
Bragg, Mother stated the staff at Caritas did not work with her. Bragg further
testified that the agency next referred Mother for substance abuse services at New
Visions, but she was discharged in February 2024, due to lack of engagement. The
agency also referred Mother to two facilities for parenting classes but Mother never
fully participated.
Bragg stated that Mother failed to resolve any of the issues —
substance abuse, mental health, and parenting — detailed in her case plan, and
described Mother’s participation in the referred services as inconsistent. Bragg
further stated that Mother blamed her inability to maintain work on her frequent
court appearances and interactions with the agency.
Bragg testified that Mother regularly participated in weekly
supervised visitation with B.S. and K.S. and weekly phone calls with the children.
Bragg also stated that at an unspecified time period, Mother “stopped showing up”
or would cancel or be late for the scheduled visits. Tr. 51. Bragg indicated that
Mother interacted with both children although she was better able to engage with
B.S. Bragg further stated that B.S. “is very attached to mom,” and K.S. did not
exhibit signs of attachment although she enjoyed being coddled by Mother. Tr. 53.
At approximately forty percent of the visitations, Mother would end the visits
prematurely because she became overwhelmed with and frustrated by the children.
Mother’s last visit occurred the week prior to trial when she engaged with both
children.
Bragg stated that neither Ke.S. nor K.D. established paternity for K.S.;
she has had no contact with K.D.; and neither Ke.S. or K.D. has taken any steps in
pursuit of their case plan objectives. She also stated that there were outstanding
warrants against K.D., and Ke.S. had a history of domestic violence. During the
pendency of the case, K.D. made no contact with the children. Ke.S. attended two
visits with the children and has not seen them since September 2023.
Bragg stated that the agency found kinship relatives — related to the
presumptive father, K.D. — who are interested in legal custody, adoption, or
permanent placement. Bragg testified that the agency sought permanent custody
because Mother made no progress on the case plan, and neither Ke.S. nor K.D. have
made progress on the case plan or indicated an interest in having the children placed
with them. Bragg testified that she unsuccessfully attempted to contact Mother
through phone calls and unannounced home visits for one month prior to trial.
However, Bragg then stated Mother texted her two days prior to trial writing that
she was entering a drug treatment center the day before trial.
Jenny Lemmer
Lemmer, the clinical director of New Visions, testified as to Mother’s
course of treatment at her facility. The agency referred Mother for chemical
dependencies and biopsychosocial assessments that Mother completed on
November 6, 2023.
Mother’s initial assessment stated that in the past 14 years she has
maintained sobriety for only three years. During the assessment, Mother denied
poor participation at Carnitas; Mother claimed she missed only one class at the
program but she was asked to engage in drug court, and she was not interested in
doing so. The evaluator/assessor noted that the Carnitas discharge summary
recommended Mother pursue a higher level of care, namely residential treatment.
During the assessment, Mother denied use of kratom yet her urine screen was
positive for this substance.
The New Visions assessor made these findings and recommended
Mother for a partial hospitalization program:
Client was oriented x4, easily engaged in conversation, had firm
convictions of what happened at the previous treatment agency and
reports she was not treated properly while at the previous treatment
agency, they falsely reported her over many things. Client struggled to
understand her level of addiction to substance use, feels everyone is
making much more of what it actually is. Client lacks the
understanding of how her addictions, over the years, have affected
herself, her family and especially her children and how her inability to
maintain sobriety is clearly affecting her appropriate decision-making
skills concerning all of their lives. . . . [T]his client is diagnosed with
Alcohol use disorder – Mild, in remission, Amphetamine use disorder
– Mild, in early remission, Methamphetamine use disorder – Severe,
Cocaine use disorder – Mild in early remission, Opioid use disorder –
Moderate, in early remission and Kratom use disorder — Moderate.
Client is recommended for [a partial hospitalization program.] Client
will be referred for an updated psych evaluation.
Nov. 6, 2023 Comprehensive Diagnostic Assessment, p. 11.
Lemmer described Mother’s participation in the partial
hospitalization program as minimal, and she was noncompliant with drug screens.
While urine screens were required at least once a week, Mother submitted only four
urine screens on November 7, 2023, December 18, 2023, January 17, 2024, and
January 31, 2024. All four drug screens reflected positive results of varying
combinations of these substances: benzodiazepines, amphetamines,
methamphetamines, kratom, tramadol, alcohol, and anticonvulsants. On February
1, 2024, New Visions discharged Mother from the program due to nonengagement
in services, poor attendance, and failure to provide random drug screens. New
Visions recommended Mother for detox and residential treatment, following which
she was encouraged to reengage in the partial hospitalization program.
Mother’s psychiatric assessment at New Visions diagnosed her with
major depressive disorder, recurrent episode with psychotic features, generalized
anxiety disorder, and borderline personality disorder. Lemmer testified that Mother
did not attend psychiatric counseling on a consistent basis.
Lemmer also stated that depending upon the flexibility of one’s
employment it may be difficult to hold a full-time job and participate in a partial
hospitalization program along with the additional weekly counseling required by the
program. However, no testimony was presented to demonstrate how, if at all,
Mother’s employment affected her participation with the recommend therapies.
Lemmer testified that Mother did not meet any of her treatment
goals, and she still needs the recommended services.
GAL
The GAL testified that pursuant to her independent investigation she
found permanent custody to the agency was in the children’s best interests. The
GAL noted that Mother has made no progress on her case plan for over a year;
Mother continued to test positive for illegal substances; and Mother had an
outstanding warrant. The GAL testified that each time she met with Mother, the
GAL emphasized the need for Mother to comply with the case plan but Mother often
was focused on the need to work and earn enough money to pay her mortgage and
car payment and care for her parents. Bragg further testified that Mother loves B.S.
and K.S., and she wants to be with her children.
Per the GAL, the kinship placement couple was willing to have
Mother communicate with the children via FaceTime as well as participate in face-
to-face visits.
The GAL conceded that B.S. informed her he wanted to return to the
care and custody of Mother and, due to that preference, the GAL asked the trial court
to appoint counsel for B.S.
In closing arguments, B.S.’s counsel stated that B.S.
wants nothing more than his mom to get sober, but he’s happy where
he is, and he’s happy that his care — current caregivers want to adopt
him. And if the adoption does go forward, he’s happy that he’ll get to
have safe contact with his mom. And that’s really what he wants me to
advocate for him today.
Tr. 94.
Pursuant to the evidence, the trial court found by clear and
convincing evidence that the agency provided relevant services — specifically
substance abuse, mental health, and parenting classes to Mother and the need for
Ke.S. and K.D. to establish paternity and utilize agency services. Pursuant to R.C.
2151.414(B)(1)(a), the trial court found that the children could not or should not be
placed with their parents within a reasonable time because: (1) Mother continuously
and repeatedly failed to substantially remedy the conditions causing the children’s
placement with the agency, (2) Mother’s chronic mental illness or chemical
dependency is so severe that she is unable to provide an adequate permanent home
for the children at the present times or within one year, (3) Mother demonstrated a
lack of commitment toward B.S. and K.S. by failing to regularly support, visit, or
communicate with the children, or by other actions showing an unwillingness to
provide an adequate permanent home for them, (4) K.D. abandoned K.S. and Ke.S.
abandoned B.S. and K.S., (5) Mother is unwilling to provide food, clothing, shelter,
and other basic necessities for the children to prevent them from suffering physical,
emotional, or sexual abuse or physical, emotional, or mental neglect, (6) Mother and
Ke.S. failed to appear for trial, and (7) Mother and K.D. have open warrants. The
trial court found reasonable efforts had been made to return the children to the
parents’ home and reunify the family and the children’s return to the homes of their
parents would be contrary to the children’s best interest.
The trial court further found it was in the best interests of the children
to be placed in the permanent custody of CCDCFS. The trial court, pursuant to its
March 7, 2024 judgment entries, terminated its prior order committing the children
to the temporary custody of the CCDCFS; terminated the parental rights of Mother,
K.D., Ke.S, and John Doe; and committed B.S. and K.S. to the permanent custody of
the agency.
On April 17, 2024, Mother filed a timely appeal, presenting two
assignments of error for our review:
Assignment of Error I: The trial court’s order granting permanent
custody to the agency was not based upon sufficient clear and
convincing evidence, was against the manifest weight of the evidence,
and it erred in finding permanent custody to be in the best interest of
the child.
Assignment of Error II: The trial court’s denial of Mother’s request for
a continuance was material and in error.
Legal Analysis
Manifest Weight of the Evidence
In her first assignment of error, Mother argues that the trial court’s
grant of permanent custody of B.S. and K.S. to the agency was against the manifest
weight of the evidence, not supported by clear and convincing evidence, and not in
the best interests of the children.
A parent has a fundamental interest in the care and custody of his
child. In re L.W., 2019-Ohio-1343, ¶ 20 (8th Dist.). 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, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio
St.2d 100, 106 (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., 2016-Ohio-7897, ¶ 21 (8th Dist.), quoting In re N.B, 2015-
Ohio-314, ¶ 67 (8th Dist.), citing In re Howard, 1986 Ohio App. LEXIS 7860, *5 (5th
Dist. Aug. 1, 1986).
When reviewing a custody case for manifest weight of the evidence,
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 ¶ 20. “In
weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact.” Id. at ¶ 21. “The
underlying rationale of giving deference to the findings of the trial court
rests with the knowledge that the trial judge is best able to view the
witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
10 Ohio B. 408, 461 N.E.2d 1273 (1984). “‘If the evidence is susceptible
of more than one construction, the reviewing court is bound to give it
that interpretation which is consistent with the verdict and judgment,
most favorable to sustaining the verdict and judgment.’” Id. at fn. 3,
quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
191-192 (1978).
In re Z.C., 2023-Ohio-4703, ¶ 14 (8th Dist.).
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 (1) any one of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e) apply, and (2) that it is in the best interest of the
child to grant permanent custody to the agency. In re R.G., 2020-Ohio-3032, ¶ 19-
20 (8th Dist.).
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., 2008-Ohio-4825,
¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
A. R.C. 2151.414(B)(1) Findings
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).
The juvenile court addressed the first prong of the statutory test by
finding that B.S. and K.S. could not or should not be placed with Mother within a
reasonable time pursuant to R.C. 2151.414(B)(1)(a). To support a finding that a child
cannot or should not be placed with a parent within a reasonable time, the trial court
looks to R.C. 2151.414(E)’s 15 enumerated factors. The trial court in the instant case
found the presence of (E)(1), (2), (4), (10), (14), and (16) factors supported its
decision. R.C. 2151.414(E) states, in pertinent part:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent
within a reasonable period of time or should not be placed with the
parents, the court shall consider all relevant evidence. If the court
determines, by clear and convincing evidence, at a hearing held
pursuant to division (A) of this section or for the purposes of division
(A)(4) of section 2151.353 of the Revised Code that one or more of the
following exist as to each of the child’s parents, the court shall enter a
finding that the child cannot be placed with either parent within a
reasonable time or should not be placed with either parent:
(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.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the court holds the hearing pursuant to division
(A) of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code.
(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.
(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.
The record supports a finding that B.S. and K.S. could not or should
not have been placed with Mother within a reasonable time pursuant to the (E)(1)
factor. The record demonstrates that in January 2023 the agency created a case plan
for Mother that addressed substance abuse, mental health, and parenting. Mother
was referred to Caritas and New Visions where she could obtain substance abuse,
mental health, and parenting services. Mother engaged in substance abuse services
but was unsuccessfully discharged from the programs. Mother underwent a
psychological evaluation at New Visions but did not consistently participate in
therapy. And Mother did not participate in parenting classes. Mother failed to
remedy the problems that initially caused the removal of her children.
Since a court need only find one of the (E) factors applies to support
a finding that children cannot or should not be placed with their children, we need
not analyze the remaining factors pertaining to Mother. R.C. 2151.414(E).
We find there is no basis for Mother’s argument that her attempts to
engage in the case plan services, although unsuccessful, warranted the trial court’s
extension of the children’s temporary custody rather than proceeding with the
permanent custody hearing. A trial court may extend a temporary custody order up
to six months in time if “there has been significant progress on the case plan.” R.C.
2151.415(D)(1). The record does not demonstrate significant progress by Mother
and, therefore, the trial court would not have been warranted in extending the
children’s temporary custody with the agency.
The trial court satisfied the R.C. 2151.414(B)(1) findings — the first
prong of the statutory test — when it applied the (E) factors to support its conclusion
that B.S. and K.S. should not or could not be placed in Mother’s care and custody.
B. Best Interest of the Child Findings
Once the trial court found that one of the enumerated R.C.
2151.414(B)(1) factors was present, the court then moved to the second prong of the
test and conducted an analysis of the children’s best interest. The juvenile court had
to find by clear and convincing evidence that it was in the children’s best interests to
grant permanent custody to the agency. In re L.W., 2019-Ohio-1343, at ¶ 36 (8th
Dist.); R.C. 2151.414(D). On appeal, the court reviews a trial court’s best interest
analysis for an abuse of discretion. Id. at ¶ 37. The term abuse of discretion implies
that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217 (1983); Johnson v. Abdullah, 2021-Ohio-3304. Such
broad discretion applies in a permanent custody hearing. In re A.W., 2020-Ohio-
3373, ¶ 25 (8th Dist.).
Mother argues that the record does not demonstrate permanent
placement of B.S. and K.S. with the agency was in their best interests. Specifically,
Mother argues that she engaged in her case plan; she and B.S. have a close bond and
he wanted to reside with Mother; Mother was developing a close bond with K.S; and
the agency could have established a secure placement through legal custody. The
agency contends the evidence demonstrates it is in the children’s best interests to be
permanently placed with the CCDCFS.
To determine the best interest of a child, the trial court considers all
relevant factors including, but not limited to, those listed in R.C. 2151.414(D)(1)(a)-
(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 (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.
Not one factor listed in R.C. 2151.414(D)(1) is given greater weight than any other
factor and only one of the statutory factors needs to be found in favor of the award
of permanent custody. In re L.W. at ¶ 39, quoting In re Schaefer, 2006-Ohio-5513,
¶ 56. The focus of a best interest determination is the child, not the parent. In re
R.G., 2016-Ohio-7897, at ¶ 28 (8th Dist.), citing In re N.B., 2015-Ohio-314, ¶ 59 (8th
Dist.); In re Awkal, 95 Ohio App.3d 309, 315 (8th Dist. 1994).
The record reflects that the children have not resided with Mother
since January 2023, when Mother overdosed on fentanyl in the house where the
children lived with her. Since that time, the agency temporarily placed the children
with a family member, moved them to foster care, and then to a kinship placement
with the potential for a permanent placement.
Mother and the children have scheduled weekly supervised visits.
Mother’s participation in the scheduled visitations is inconsistent at times and often
she discontinues the visitations early when she is frustrated or overwhelmed by the
children. The GAL indicated Mother wants to be with her children.
Mother and B.S. share a bond. The GAL testified that B.S. wanted to
reside with Mother but the GAL recommended that the trial court grant permanent
custody to the agency because Mother has unresolved substance abuse and mental
health issues, and the children require a stable and permanent home. According to
B.S.’s counsel, B.S. prefers to remain in his kinship placement and be adopted while
experiencing safe contact with Mother who hopefully will lead a sober lifestyle.
We recognize the bond between Mother and B.S., yet the bond is not
sufficient to establish that it was in B.S.’s best interest to be placed with Mother. See
In re Holyak, 2001 Ohio App. LEXIS 3105, *10 (8th Dist. July 12, 2001) (“But having
a good relationship with the children is not enough.”).
K.S. was only four years old at the time of the custody hearing. The
record did not reflect a similar bond between Mother and K.S. although K.S. enjoyed
being coddled by Mother. A juvenile court properly considers a GAL’s
recommendation on a permanent custody motion — and specifically as part of a best
interest analysis — where the child is too young to verbalize her wishes. In re R.A.,
2021-Ohio-4126, ¶ 52 (8th Dist.), quoting In re B/K Children, 2020-Ohio-1095, ¶ 45
(1st Dist.). The GAL recommended the court grant permanent custody of K.S. to the
agency.
“A child’s best interests require permanency and a safe and secure
environment.” In re Holyak at *10. Children deserve a legally secure, permanent
placement where they can be safe, thrive, and have all their needs met. Such a
placement could not be accomplished with Mother. Mother struggled with
substance abuse, mental health, and parenting and was unwilling or unable to fully
engage in the referral services.
Further, a trial court’s finding that it cannot or should not place a
child with a parent precludes the court from considering returning the child to
Mother’s custody. In re E.J., 2023-Ohio-1376, ¶ 47 (8th Dist.); see In re Mayle,
2000 Ohio App. LEXIS 3379, *20-21 (8th Dist. July 27, 2000) (After finding that a
child cannot or should not be placed with a parent, the trial court is required by
statute to place the child with someone other than the parent.). Thus, the trial
court’s initial finding that it could not or should not place B.S. and K.S. with Mother
precluded return of the children to Mother’s care and custody.
We find that the record provided the trial court with clear and
convincing evidence to find permanent custody to the agency, rather than Mother,
was in the children’s best interest.
The record demonstrates that the juvenile court complied with the
statutory requirements of R.C. 2151.414(B)(1) and 2151.414(D) when it determined
(1) the evidence showed that B.S. and K.S. could not or should not be placed with
Mother within a reasonable time and (2) it was in the children’s best interests to be
placed in the permanent custody of the agency.
Mother’s first assignment of error is overruled.
Motion to Continue
In her second assignment of error, Mother argues the trial court’s
denial of her motion to continue the custody trial was in error.
Biological parents have a constitutionally protected right to be
present at a permanent custody hearing. In re Sears, 2002-Ohio-368, ¶ 11 (10th
Dist.). Typically the decision whether to grant a continuance lies within the sound
discretion of the trial court, and we will not reverse the decision on appeal absent an
abuse of that discretion. State v. Unger, 67 Ohio St.2d 65, 67 (1981). The same
broad discretion is afforded to the trial court regarding a permanent custody
hearing. In re D.T., 2019-Ohio-4895, ¶ 15 (8th Dist.).
Moreover, “[t]here are no mechanical tests for deciding when a denial
of a continuance is so arbitrary as to violate due process. The answer must be found
in the circumstances present in every case, particularly in the reasons presented to
the trial judge at the time the request is denied.” Unger at 67, quoting Ungar v.
Sarafite, 376 U.S. 575, 589 (1964).
Where a nonincarcerated parent fails to appear at a hearing and
challenges the trial court’s refusal to continue a permanent custody hearing to
accommodate the parent’s circumstances, the appellate courts have applied the
factors set forth in Unger to determine whether the court abused its discretion. In
re D.K., 2015-Ohio-546, ¶ 11 (2d Dist.). The Unger factors include:
the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived;
whether the defendant contributed to the circumstance which gives rise
to the request for a continuance; and other relevant factors, depending
on the unique facts of each case.
Unger at 67-68.
Furthermore, under Juv.R. 23, “[c]ontinuances shall be granted only
when imperative to secure fair treatment for the parties.” Loc.R. 35(C) of the
Cuyahoga County Court of Common Pleas, Juvenile Division (“Loc.R. 35(C)”), also
provides:
No 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, and provided that the party and/or
counsel have used diligence to be ready for trial and have notified or
made diligent efforts to notify the opposing party or counsel as soon as
he/she became aware of the necessity to request a postponement. This
rule may not be waived by consent of counsel.
We recognize that
“‘[a]ll things being equal, the testimony from a parent would provide
more information than not having the parent.’” In re Sears, 10th Dist.
Franklin No. 01AP-715, 2002-Ohio-368, at ¶ 11, quoting In the Matter
of Vandale, 4th Dist. Washington No. 92 CA 9, 1992 Ohio App. LEXIS
4306 (Aug. 12, 1992). Because the termination of parental rights is a
serious matter, where a parent communicates with the court or counsel
to explain a problem attending a hearing, the courts have required that
“great care be taken to ensure that due process is afforded parents in
parental termination proceedings.” In the Matter of Rachal, 6th Dist.
Lucas No. L-02-1306, 2003-Ohio-1041, ¶ 12. However, “a parent facing
termination of parental rights must exhibit cooperation and must
communicate with counsel and with the court in order to have standing
to argue that due process was not followed in a termination
proceeding.” In re Q.G., 170 Ohio App.3d 609, 2007-Ohio-1312, 868
N.E.2d 713, ¶ 12 (8th Dist.).
In re A.W., 2020-Ohio-3373, at ¶ 29 (8th Dist.).
The record reflects that Mother did not appear at the permanent
custody hearing, and counsel for Mother moved the court for a continuance.
Counsel argued that Mother had informed her that she was being admitted to a
treatment center on the date of trial. Counsel argued this was Mother’s third
attempt to manage her substance abuse issues. Further, counsel indicated this was
the first request to continue the trial, and the children had been in the custody of the
agency for only 13 months. Counsel requested a continuance of approximately 30
days to allow Mother’s completion of the substance abuse program.
The agency opposed the motion for continuance, arguing that the
children had been in its custody for over a year; Mother had failed to successfully
complete any services during that time; Mother’s alleged participation in treatment
starting on the day of trial appeared dilatory; the length of delay of trial was
uncertain since it was based upon Mother’s completion of substance abuse
treatment and coordinating schedules of all parties and defense counsel indicated
he would not be available for at least three months; all necessary witnesses were
present and prepared to testify; and the local rules precluded continuance on the
day of trial if the circumstances leading to the continuance — such as in this scenario
— were known prior to trial. The trial court found it was in the best interests of the
children to deny Mother’s motion and proceed to trial.
We do not find the trial court’s denial of Mother’s motion for
continuance was an abuse of discretion. Mother could have provided counsel
adequate notice of her intention to enter a substance abuse program so that counsel
could present a timely motion for continuance and, accordingly, reschedule the
permanent custody hearing. However, Mother failed to attend the permanent
custody hearing and counsel presented a verbal motion on the date of trial, in
contravention to Loc.R. 35(C). Mother’s enrollment in a substance abuse program
on the date of trial could have been construed as dilatory. And all counsel and
witnesses, excluding Mother, were present and ready to proceed with trial. See In
re C.W., 2020-Ohio-3189, ¶ 22 (8th Dist.) (“The record reflects that a continuance
would have caused great inconvenience to the agency witness, opposing counsel, the
guardian ad litem, and court personnel, who were present and ready to proceed with
the hearing.”). We cannot conclude that the trial court abused its discretion when it
denied Mother’s request for a continuance. Thus, 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, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR