In re C.H. , 2024 Ohio 75 ( 2024 )

[Cite as In re C.H., 2024-Ohio-75.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE C.H. :
: No. 113023
A Minor Child :
:
[Appeal by L.H., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 11, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD23903514
Appearances:
Marc L. Stolarsky Law, LLC, and Marc L. Stolarsky, for
appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Zachary J. LaFleur, Assistant Prosecuting
Attorney, for appellee.
FRANK DANIEL CELEBREZZE, III, P.J.:
Appellant L.H. (“Mother”) appeals the decision of the Cuyahoga County
Juvenile Court terminating her parental rights and awarding custody of her minor
child, C.H. (d.o.b. 08/04/2017), to the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or “agency”). After a thorough review of the law and
applicable facts, we affirm the judgment of the juvenile court.
I. Factual and Procedural History
CCDCFS first became involved in this matter when the facility where
C.H. resides, Sunshine Communities (“Sunshine” or “facility”), contacted the agency
after being unable to get in contact with Mother for the completion of certain
necessary paperwork. C.H. has resided at Sunshine for almost five years, beginning
after he left the hospital following his birth. C.H. is permanently on a ventilator and
tracheostomy tube due to chronic respiratory failure and has a feeding tube. He is
nonverbal and has developmental issues.
In March 2023, CCDCFS filed a complaint alleging that C.H. was
neglected and dependent and requested a disposition of permanent custody. The
juvenile court held an adjudicatory hearing after which C.H. was determined to be
neglected and dependent. Mother did not appear at this hearing.1
A dispositional hearing was held in June 2023, where Mother again did
not appear. The agency presented the testimony of Ronald Parks (“Parks”), a short-
term caseworker assigned to the family; Jennifer Menningen (“Menningen”), a
social worker with Sunshine; and Emily Vandergrift (“Vandergrift”), a registered
nurse with Sunshine, who worked with C.H.
Parks testified that when he first received the case, he explained to
Mother what paperwork needed to be signed and what she needed to do to return
the paperwork to the facility. He stated that Mother told him that the previous time
1 Paternity was not established in this case, and thus, this appeal pertains only to
Mother.
that she had not signed the paperwork, which was the year prior, the agency had
completed and returned the paperwork for her.
Parks testified that the agency filed a case plan in this matter that
included parenting services and required Mother to maintain a relationship with
C.H. and to work with Sunshine. The parenting services were necessary because
Mother had failed to establish a relationship with C.H. and failed to file the necessary
paperwork for the facility. Mother was referred to the Community Collaborative.
Mother was cooperative with the Community Collaborative and received assistance
for her other children.2
Parks stated that his communication with Mother was “sporadic” and
that it was “very hard” to get in contact with her. He had spoken with her the week
before the dispositional hearing, but prior to that, there had been no contact with
her for months.
Parks testified that the agency was seeking permanent custody because
communication with Mother had been an ongoing issue and the child needed
someone who was willing to make decisions for him and sign the appropriate
paperwork. He stated that there was still some paperwork that had not been signed
by Mother, including one for schooling, and a medical consent form. Parks stated
that he had conversations with Mother about the outstanding documents, but they
still had not been signed.
2 At the time of the hearings, Mother had an infant, a nine-year-old, and two
teenage sons, in addition to C.H.
Menningen testified next and explained her role as a social worker at
Sunshine. She stated that she maintains C.H.’s benefits, including Medicaid and his
supplemental security income, and has been involved with getting annual planning
and school paperwork signed for C.H. She explained that every August, there is a
meeting regarding C.H., after which certain paperwork must be signed. She stated
that the paperwork was signed during the first two years that C.H. was at the facility,
but that it was difficult to get the paperwork signed for the past two years. It is
usually the same paperwork each year, but this year there was also school paperwork
that had to be signed. Mother was also required to submit evidence of her residence
in the form of utility bills or an affidavit from her landlord.
When asked about the efforts that Sunshine made to get Mother to
sign the paperwork, Menningen responded that the facility had sent the paperwork
to her multiple times via certified mail. The paperwork was sent with prepaid
envelopes for their return to the facility. Sunshine received the certified card back
that Mother had received it, but the paperwork was not returned to the facility. She
also stated that multiple staff members, including herself, had called Mother and
that she had emailed Mother, all to no avail. Last summer, they involved CCDCFS
to assist with getting the paperwork signed.
Menningen testified that the same efforts had been made this year –
the paperwork was mailed to Mother via certified mail and staff had called her
multiple times. She acknowledged that they did receive some signed paperwork
once Parks was involved this year, but they still had not received the signed school
paperwork.
CCDCFS then presented the testimony of Vandergrift, a registered
nurse who had been involved in C.H.’s care. She explained that C.H. is immobile
and cannot speak but has a communication device. She described his daily care as
follows:
So [C.H.] is vent dependent. He’s on a ventilator 24/7. He requires
trach[eostomy] care at least twice a day, suctioning throughout the day
just as needed.
He has no swallowing ability so he needs oral suctioning as well.
He’s tube fed 20 hours of the day. He gets medications, treatments like
aerosol medications through the vent and medications through the G-
tube about seven times throughout the day.
And then he gets therapy from our therapy department.
Vandergrift stated that C.H.’s care plan was formed after going over
his needs and progress each year. She was not aware of Mother ever being involved
in these annual meetings. She stated that Mother had not attended the child’s
medical appointments and when he had been hospitalized, they usually had to leave
messages and wait for her to call them back. She testified that the only interaction
she has had with Mother was in 2020 when Mother called to FaceTime with C.H.
while Vandergrift was in his room.
When asked what value she saw in doing virtual visits such as the
FaceTime call, Vandergrift stated that Mother “just kinda had the phone open” and
“wasn’t necessarily FaceTiming with him the whole time.” She said different people
were getting on and off the call, and sometimes there was no one on the other end.
Vandergrift testified that C.H. is able to recognize people that he sees
daily but that he probably would not recognize Mother since he had not seen her
face-to-face in five years.
Regarding the importance of the unsigned paperwork, Vandergrift
testified that the facility needed to get C.H. into school and that there is a public
school with a “medically fragile unit” that he could attend. He would need an IEP
for the school, which also required Mother to sign papers. Further, if C.H. were to
need hospitalization,3 the hospital might need emergency consent, and it would be
a problem if they were unable to reach Mother.
Vandergrift stated that she believed that Mother does not fully
understand the depth of C.H.’s needs and the amount of care required each day.
When Mother does call the facility, she asks how C.H. is doing but does not have
specific questions about his health.
On cross-examination, Vandergrift acknowledged that she does not
work with C.H. on a daily basis and had not observed him for the past year to know
if there had been any more FaceTime visits with Mother. She further conceded that
Sunshine is located approximately two hours from the Cleveland area.
3 Vandergrift testified that C.H. had been hospitalized only twice within the last
three years, but when he first came to Sunshine, he had been taken to the hospital more
frequently.
Vandergrift was asked about the visitation restrictions during the
COVID-19 pandemic. She said in late 2020, they began scheduled family visits
outside of the medically fragile unit, which involved the visitors being screened prior
to their visit. She testified that there were no restrictions (outside of the screening)
for visits during the winters of 2020-2021 and 2021-2022.
Finally, Vandergrift stated that the clothes that C.H. is dressed in each
morning were provided by Sunshine; to her knowledge, Mother had not provided
any clothing.
The child’s guardian ad litem had provided a written report to the
court and gave her final recommendation at the hearing. She noted that she had not
met Mother and that it had been very difficult to reach her. She emphasized the
need for the facility to be able to reach Mother in an emergency and recommended
that the court grant permanent custody of the child to CCDCFS.
Following the hearing, the court granted the motion for permanent
custody to CCDCFS and terminated Mother’s parental rights. The trial court made
the following findings:
The Court finds that 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 to continuously and repeatedly to substantially
remedy the conditions causing the child to be placed outside the child’s
home. Paternity is not established.
The parent(s) 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 parent(s) has abandoned the child.
***
Upon considering the interaction and interrelationship of the child
with the child’s parents, siblings; the special needs of the child; the
custodial history of the child, including whether the child has been in
temporary custody of a public children services agency or private child
placing agency under one or more separate orders of disposition for
twelve or more months of a consecutive twenty-two month period; 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; and the report of the Guardian ad Litem; the Court finds by
clear and convincing evidence that a grant of permanent custody is in
the best interests of the child and the child cannot be placed with
one of the child’s parents within a reasonable time and should not be
placed with either parent.
***
The Court finds that the child’s continued residence in or return to the
home of mother, [L.H.], will be contrary to the child’s best interest.
***
(Emphasis sic.)
Mother then filed the instant appeal, raising one assignment of error
for our review:
The court’s decision was an abuse of discretion and against the
manifest weight of the evidence because the trial court erred in
determining that mother failed to support, visit, and communicate with
the child during the worldwide COVID pandemic.
II. Law and Analysis
The right to raise one’s own child is “‘an essential and basic civil
right.’” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In
re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52
Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (a parent has a “‘fundamental liberty
interest’ in the care, custody, and management” of his or her child). However, this
right is not absolute. It is “‘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, at ¶ 29, quoting In re Cunningham, 59 Ohio St.2d 100, 106, 391
N.E.2d 1034 (1979).
Because termination of parental rights is “‘the family law equivalent
of the death penalty in a criminal case,’” In re J.B., 8th Dist. Cuyahoga No. 98546,
2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368,
776 N.E.2d 485, ¶ 14, it is “an alternative of last resort.” In re Gill, 8th Dist.
Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when
necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and
101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645
N.E.2d 812 (9th Dist.1994). “‘All children have the right, if possible, to parenting
from either natural or adoptive parents which provides support, care, discipline,
protection and motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio
App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996).
In her sole assignment of error, Mother argues that the trial court’s
decision to grant permanent custody of C.H. to the agency was an abuse of discretion
and against the manifest weight of the evidence. Specifically, Mother asserts that
the trial court erred in finding that she had abandoned C.H.
While Mother argues in part that the juvenile court’s decision
constituted an abuse of discretion, the Supreme Court of Ohio has recently held that
this is not the appropriate standard of review.
[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 presented by
the parties.
In re Z.C., Slip Opinion No. 2023-Ohio-4703, ¶ 18. Thus, we will disregard Mother’s
abuse of discretion argument and review this matter solely under the manifest-
weight-of-the-evidence standard.
“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.” Z.C. at ¶ 14, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
Before a juvenile court can terminate parental rights and grant
permanent custody of a child to CCDCFS, it must satisfy the two-prong test set forth
in R.C. 2151.414. First, the juvenile court must find by clear and convincing evidence
that one of the following conditions set forth in R.C. 2151.414(B)(1)(a) through (e)
exists:
(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 services 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.
In the instant matter, the juvenile court determined that the child had
been abandoned by Mother. Under R.C. 2151.011(C), “a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain contact with
the child for more than ninety days, regardless of whether the parents resume
contact with the child after that period of ninety days.”
Testimony at the hearing reflected that Mother had not visited C.H. in
person since he had come to Sunshine. Mother argues that the COVID-19 pandemic
impeded her ability to visit C.H. and asserts that she maintained contact with C.H.
through video visits.
Mother’s argument that the pandemic prevented her from visiting
C.H. in person lacks merit. It is undisputed that the pandemic did not begin until
March 2020, and yet Mother had not visited C.H. for over two years prior to that.
Moreover, while there may have been some initial restrictions on visits, Vandergrift
testified that in late 2020, family members were permitted to visit after undergoing
a screening. Nevertheless, Mother still did not make any attempt to visit C.H. in
person. Mother places significant emphasis on her FaceTime visits, but there was
no evidence presented as to the frequency of the calls — Parks characterized them
as “a few” visits. Moreover, in the call that Vandergrift described, it does not sound
like Mother was present throughout the virtual visit.
In her brief, Mother argues that this court has previously noted that
the COVID-19 pandemic affected visitation between children and parents. Mother
is correct that this court has acknowledged the impact of the pandemic on visitation;
however, in those cases and in the present case, the pandemic could not be blamed
as the sole reason for a lack of visitation. See In re M.H., 8th Dist. Cuyahoga No.
111145, 2022-Ohio-1680, ¶ 32 (“This court recognizes the [COVID]-19 pandemic
may have impacted Mother’s ability to visit M.H., but in 2020 she saw M.H. only
once on a FaceTime call.”); In re S.B., 8th Dist. Cuyahoga Nos. 110016 and 110017,
2021-Ohio-1091, ¶ 34 (“We recognize the impediments the [COVID]-19 restrictions
interjected in this case. But those restrictions were not imposed until 15 months into
the case.”). Similarly, here, Mother has not visited the child in the entire time that
he has been at Sunshine — a time period that extends far beyond the months when
the pandemic would have precluded visitation.
We therefore find that the trial court’s determination that Mother
abandoned C.H. was not against the manifest weight of the evidence.
Once the first prong is met, the juvenile court must find by clear and
convincing evidence that granting permanent custody to the agency is in the best
interest of the child. R.C. 2151.414(B)(1). “Clear and convincing evidence” is that
measure or degree of proof that “produce[s] in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; In re M.S., 8th
Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, at ¶ 8. “‘Where the proof
required must be clear and convincing, a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof.’” Z.C. at ¶ 8, quoting State v. Schiebel, 55 Ohio St.3d 71,
74, 564 N.E.2d 54 (1990), citing Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526 (1887),
paragraph two of the syllabus.
In determining the best interest of a child at a hearing held pursuant
to R.C. 2151.414(A)(1), the juvenile court must consider all relevant factors,
including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D)(1).
A juvenile court is required to consider each relevant factor under R.C.
2151.414(D)(1) in making a determination regarding permanent custody, but
“[t]here is not one element that is given greater weight than the others pursuant to
the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532,
¶ 56. This court has previously stated that only one of these enumerated factors
needs to be resolved in favor of the award of permanent custody. In re Moore, 8th
Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing In
re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993). Further,
the Supreme Court of Ohio has clarified that “R.C. 2151.414(D)(1) does not require
a juvenile court to expressly discuss each of the best-interest factors in R.C.
2151.414(D)(1)(a) through (e). Consideration is all the statute requires.” In re A.M.,
166 Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d 1, ¶ 31.
Appellant does not specifically argue that the trial court erred in
finding that permanent custody was in C.H.’s best interest but merely states that a
lack of visitation is only one factor the court should consider in determining the best
interest of the child. Here, the juvenile court set forth all of the factors that it
considered when assessing C.H.’s best interests, and the findings made by the court
were all supported by clear and convincing evidence.
Mother’s sole assignment of error is overruled.
III. Conclusion
After thoroughly reviewing the entire record, we find that the juvenile
court’s judgment was not against the manifest weight of the evidence and affirm the
award of permanent custody of C.H. 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.
_
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR