In re T.H. , 2014 Ohio 2985 ( 2014 )

[Cite as In re T.H., 2014-Ohio-2985.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100852
IN RE: T.H.
A Minor Child
[Appeal By Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 10913091
BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEY FOR APPELLANT
Daniel J. Bartos
Bartos & Bartos, L.P.A.
20220 Center Ridge Road, Suite 320
Rocky River, Ohio 44116
ATTORNEY FOR APPELLEE C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mark Adelstein
Assistant County Prosecutor
Cuyahoga County Department of Children
and Family Services
8111 Quincy Avenue, Room 450
Cleveland, Ohio 44104
GUARDIAN AD LITEM FOR CHILD
James H. Schultz
1370 Ontario Street, Suite 1520
Cleveland, Ohio 44113
ATTORNEY FOR L.J.
Rufus Sims
1370 Ontario Street, Suite 330
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Appellant-mother (“appellant”), appeals from the judgment of the Common
Pleas Court, Juvenile Division, granting permanent custody of her minor child, T.H., to
appellee, the Cuyahoga County Department of Children and Family Services
(“CCDCFS”).1 For the reasons that follow, we affirm.
{¶2} On July 20, 2011, CCDCFS requested and received an ex parte telephonic
order of custody of T.H. The basis for the request was that L.J., the legal guardian of
T.H., L.H., 2 and appellant, who was a minor at the time, was charged with child
endangering where the children were alleged to be the victims. When T.H. and appellant
were removed from the L.J.’s home, it was CCDCFS’s policy that T.H. and appellant not
be placed in the same foster placement. Therefore, T.H. and L.H. were placed in foster
care together, while appellant was placed in a different foster home.
{¶3} The day after removal of the children, CCDCFS filed a complaint alleging
dependency and requested a disposition of temporary custody of all the children,
including T.H. Predispositional temporary custody was granted to CCDCFS two days
later. On December 7, 2010, the trial court conducted an adjudicatory hearing on
CCDCFS’s amended complaint. Appellant and L.J. subsequently entered into an
The parties are referred to herein by their initials or title in accordance with
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this court’s established policy regarding non-disclosure of identities in juvenile
cases.
L.H. is appellant’s sister, who was a minor in 2011.
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admission to the amended complaint; T.H. was adjudicated dependent and placed in the
temporary custody of CCDCFS on January 31, 2011. In September 2011, appellant was
placed in the same foster home as T.H. and L.H., and continued to reside there for
approximately 16 months until January 2013 when she voluntarily left the home.
{¶4} On July 10, 2012, CCDCFS filed a motion to modify temporary custody to
permanent custody pursuant to R.C. 2151.413, and the court held an evidentiary hearing
on the motion in August 2013. The trial court issued an oral decision granting permanent
custody of T.H. to CCDCFS, and subsequently memorialized its order of permanent
custody, terminating appellant’s parental rights in a written decision dated December 2,
2013. Appellant now appeals from this order, raising three assignments of error.
I. Standard of Review
{¶5} When reviewing a trial court’s judgment in child custody cases, the
appropriate standard of review is whether the trial court abused its discretion, which
implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Miller v.
Miller, 37 Ohio St.3d 71, 73, 523 N.E.2d 846 (1988). An appellate court must adhere to
“‘every reasonable presumption in favor of the lower court’s judgment and finding of
facts.’” In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240 (3d Dist.1994),
quoting Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 638 N.E.2d 533 (1994).
{¶6} Where clear and convincing proof is required at trial, a reviewing court will
examine the record to determine whether the trier of fact had sufficient evidence before it
to satisfy the requisite degree of proof. In re T.S., 8th Dist. Cuyahoga No. 92816,
2009-Ohio-5496, ¶ 24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990). Judgments supported by competent, credible evidence going to all the essential
elements of the case will not be reversed as being against the manifest weight of the
evidence. Id.{¶7} “Clear and convincing evidence is more than a mere preponderance of the
evidence; it is evidence sufficient to cause a trier of fact to develop a firm belief or
conviction as to the facts sought to be established.” T.S. at ¶ 24, citing In re Estate of
Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).
{¶8} R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The statute
requires the court to find, by clear and convincing evidence, that (1) granting permanent
custody of the child to the agency is in the best interest of the child and (2) either the child
(a) cannot be placed with either parent within a reasonable period of time or should not be
placed with either parent if any one of the factors in R.C. 2151.414(E) are present; (b) is
abandoned; (c) is orphaned and no relatives are able to take permanent custody of the
child; or (d) has been in the temporary custody of one or more public or private children
services agencies for 12 or more months of a consecutive 22-month period. R.C.
2151.414(B)(1).
II. R.C. 2151.414(B)(1)(a) and (d) — Second Prong
{¶9} In her first assignment of error, appellant contends that the trial court erred in
granting CCDCFS permanent custody of T.H. because the requirement of R.C.
2151.414(B)(1)(d) was not satisfied by clear and convincing evidence.
{¶10} The trial court determined that the second prong of R.C. 2151.414(B)(1)
was satisfied because T.H. had been in the temporary custody of a public services agency
for 12 or more months of a consecutive 22-month period. (R.C. 2151.414(B)(1)(d)); or
alternatively, that T.H. could not be placed with either parent within a reasonable amount
of time or should not be placed with his parents. (R.C. 2151.414(B)(1)(a)).
{¶11} T.H. was placed in emergency temporary custody of CCDCFS on July 20,
2010. Pursuant to R.C. 2151.414(B)(1), temporary custody began on September 20,
2010 — 60 days after removal. The trial court awarded temporary custody to CCDCFS
on January 31, 2011. At the time CCDCFS filed its motion to modify temporary custody
to permanent custody on July 12, 2012, T.H. had been in the temporary custody of
CCDCFS for over 18 months. Accordingly, the second prong of R.C. 2151.414(B)(1) is
satisfied.
{¶12} Appellant contends that because the separation at the time of removal was
based on CCDCFS’s policy that she and T.H. not be placed together in foster care and
that she was subsequently placed in the same foster home with T.H., the placement should
not be characterized as “temporary custody”; rather it was “protective supervision.”
{¶13} Pursuant to R.C. 2151.011(B)(42), protective supervision is a disposition
that the juvenile court may make when considering a complaint for abused, neglected,
dependent, or unruly child. In this case, the disposition was temporary custody, not
protective supervision, and no party requested for a modification of temporary custody to
protective supervision. Accordingly, the circumstances in this case cannot be
“characterized” as protective supervision without a specific disposition as such.
{¶14} We agree that appellant should not be penalized for this involuntary
separation from her child, especially when the allegations that caused appellant and T.H.
to be removed from their legal guardian were not attributable to any abuse or neglect at
the hands of appellant. Furthermore, while we question CCDCFS’s seemingly blanket
policy of separating a parent and child in these instances, the testimony revealed that
separation was reasonable.
{¶15} According to social worker Cynthia Hurry, appellant and T.H. were also
separated because there was no bond or any real attachment between them. At the time
of removal, T.H. was detached and developmentally delayed, a concern to the agency that
appellant was not appropriately caring for him. The separation occurred not only
because of CCDCFS policy, but because of these other reasons as well.
{¶16} Moreover, even if appellant and T.H. were initially placed together at the
time of removal, it would not change the fact that T.H. has been in the temporary custody
of a public services agency for 12 or more months of a consecutive 22-month period.
Appellant’s placement is irrelevant under this prong of R.C. 2151.414(B)(1)(d). Rather,
this issue would be better raised in addressing the factors considered under R.C.
2151.414(E). Accordingly, clear and convincing evidence exists to support the trial
court’s decision finding the second prong of R.C. 2151.414(B)(1) was satisfied.
{¶17} The trial court alternatively found that even if the child had not been in the
temporary custody of a public services agency for 12 or more months of a consecutive
22-month period, T.H. could not be placed with either of his parents within a reasonable
period of time or should not be placed with his parents. See R.C. 2151.414(B)(1)(a).
{¶18} Because we have held that the juvenile court properly found that T.H. was in
the temporary custody of CCDCFS for at least 12 months pursuant to R.C.
2151.414(B)(1)(d), we need not address whether the agency failed to prove T.H. could
not be placed with appellant within a reasonable time. See In re C.W., 104 Ohio St.3d
163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21 (“An agency need no longer prove that a
child cannot be returned to his parents within a reasonable time or should not be returned
to the parents, so long as the child has been in the temporary custody of an agency for at
least 12 months”); In re L.C., 8th Dist. Cuyahoga Nos. 93319, 93320 and 93321,
2009-Ohio-6651, ¶ 18.
{¶19} Appellant’s first assignment of error is overruled.
III. R.C. 2151.414(B)(1) — First Prong, Best Interest
{¶20} In her second assignment of error, appellant contends that the trial court
erred in granting CCDCFS permanent custody because permanent custody was not in
T.H.’s best interest.
{¶21} Under the first prong of R.C. 2151.414(B)(1), the trial court is required to
make a finding that permanent custody is in T.H.’s best interest by applying the factors set
forth in R.C. 2151.414(D)(1)-(5).
{¶22} R.C. 2151.414(D) requires that in determining the best interest of the child,
the court must consider all relevant factors, including, but not limited to: (1) the
interaction and interrelationship of the child with the child’s parents, siblings, relatives,
foster parents, and out-of-home providers, and any other person who may significantly
affect the child; (2) the wishes of the child as expressed directly by the child or through
the child’s guardian ad litem; (3) the custodial history of the child; (4) 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; and (5) whether any factors in R.C.
2151.414(E)(7) through (11) are applicable.
{¶23} “There 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 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).
{¶24} In this case, the trial court considered all relevant factors, including those
listed in R.C. 2151.414(D)(1)-(5). A review of the record clearly and convincingly
supports the trial court’s finding that permanent custody is in T.H.’s best interest.
{¶25} Elizabeth Zolla (“Zolla”), a social worker with Twelve of Ohio, testified
regarding the interaction between T.H. and his foster parent. She stated that T.H. enjoys
his foster parent’s encouragement, especially when she “brags on him” about new skills
that he is accomplishing. It was explained that when T.H. was initially placed with his
foster parent, he was very detached, was afraid of being touched, and would not speak or
look at anyone; now, he interacts with others, greets people, and is described as “lovable.”
{¶26} T.H.’s foster parent testified regarding how T.H. responded after appellant
left the residence in 2013.
He didn’t respond no way or no how. It hasn’t really affected him. I
know that he knows she’s gone because when she comes to see him, hi,
mom. But when she leaves, it’s not like he cries a period of time or he
goes and slump[s] in the corner. He goes on, you know. He knows that’s
mom, but because they never really had an affectionate bond, it really
doesn’t affect him.
(Tr. 282.)
{¶27} Regarding T.H. and appellant’s interaction, T.H.’s foster parent testified that
appellant regularly visits with T.H. and, while T.H. addresses appellant as “mom,” there
is no hugging. Furthermore, appellant and T.H.’s visits were initially unsupervised in the
home, however, after it was noticed that T.H. was starting to withdraw himself, the visits
became supervised.
{¶28} Appellant testified that she regularly visits with T.H. in his home where
she helps him with his preschool words and plays with him. She stated she can care for
T.H. and provide for his basic needs. Appellant admitted that T.H.’s foster parent is
doing a “good job” with T.H.
{¶29} While the testimony demonstrates that appellant has made some
improvements in bonding with and attending to T.H., she still needs prompting about his
care and parenting. As explained by Zolla, appellant does not have “an issue with
application of caring for [T.H.], but [with] the intuition to act without being prompted at
times” that appellant lacks in parenting T.H. (Tr. 224.)
{¶30} T.H.’s foster parent testified that her children have bonded with both T.H.
and L.H., and they are part of the family. They go on all vacations, gatherings, holidays
together. “They’re my family like they’re mine. * * * He’s just like he’s mine, like he’s
ours, that he’s been around and everybody embraces him like they should.” (Tr.
283-284.)
{¶31} While T.H. was too young to express his wishes, his guardian ad litem
expressed to the court that T.H. should remain with his foster parent, but that appellant be
given more time to work on her case plan. The trial court found that the guardian’s
report and recommendation inappropriately considered the effect of permanent custody on
the appellant, in violation of R.C. 2151.414(C). The record supports this finding.
Moreover, T.H. has been in temporary custody for four years — T.H. is entitled to
permanency and stability.
{¶32} Regarding custodial history, T.H. was removed from his legal guardian
when he was three years old after an allegation of child endangering was filed. As a
result, he was placed with his current foster placement in July 2010. T.H. has been in
this same placement since that time — almost four years. During his placement, he has
made substantial improvements, especially in his ability to communicate. The testimony
reveals that T.H. has made a “total turn around” since being placed in foster care.
{¶33} It is clear that T.H. has a need for a legally secure permanent placement;
however, based on the record before this court, this type of placement cannot be achieved
without a grant of permanent custody to the agency. T.H.’s foster parent is willing to
adopt both T.H. and L.H. Alternative options for T.H. that were before the trial court
were not options that would achieve a secure stable placement. Moreover, T.H.’s foster
parent testified that appellant is welcome in her home, would never be prevented from
coming into her home, and she will continue to facilitate a relationship between the two,
“if [appellant] wants it.” This statement is supported by the evidence presented.
{¶34} Upon our review of the record, we find that the trial court weighed all
relevant factors and made a decision in the best interest of T.H. This court finds
competent and credible evidence in the record supporting the trial court’s decision.
Appellant’s second assignment of error is overruled.
IV. Exercise Reasonable Efforts for Reunification
{¶35} In her third assignment of error, appellant contends that the trial court erred
in granting permanent custody to CCDCFS because the agency did not exercise
reasonable efforts to return the child to her home or otherwise avoid permanent custody
pursuant to R.C. 2151.419.
{¶36} CCDCFS moved for permanent custody of T.H. pursuant to R.C.
2151.413. The Ohio Supreme Court has held that by its terms, R.C. 2151.419 “does not
apply to motions for permanent custody brought pursuant to R.C. 2151.413, or to hearings
held on such motions pursuant to R.C. 2151.414.” In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 41-43, citing In re A.C., 12th Dist. Clermont No.
CA-2004-05-041, 2004-Ohio-5531, ¶ 30. Therefore, the trial court was not required to
make any specific determination whether CCDCFS made reasonable efforts.3
{¶37} Accordingly, appellant’s third assignment of error is overruled.
{¶38} 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 be sent to said court to carry this judgment into
execution.
However, if the trial court used R.C. 2151.414(B)(1)(d) to satisfy the first
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prong in determining whether to grant permanent custody, the court would have
been required to address the issue of whether CCDCFS made reasonable efforts
through case planning to reunify appellant and T.H.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR