In re L.W. ( 2019 )

[Cite as In re L.W., 2019-Ohio-1343.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
In Re: L.W., et al. :
No. 107708
A Minor Child :
[Appeal by D.B., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 11, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD17918166 and AD17918167
Appearances:
Christina M. Joliat, for appellant.
Michael C. O’Malley, Prosecuting Attorney, and Timothy
W. Clary, Assistant Prosecuting Attorneys, for appellee.
EILEEN T. GALLAGHER, P.J.:
Appellant-mother, D.B. (“Mother”), appeals from the decision of
the Juvenile Division of the Cuyahoga County Court of Common Pleas (the
“juvenile court”) terminating her parental rights and granting permanent
custody of her children to the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or “the agency”).1 Mother raises the following
assignments of error for review:
1. 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.
2. The trial court erred in conducting the dispositional hearing
only three days after the Guardian Ad Litem report was filed in
violation of Loc.R. 18 of the Cuyahoga County Court of Common
Pleas, Juvenile Division.
After careful review of the record and relevant case law, we affirm the
trial court’s judgment.
I. Procedural and Factual History
Mother and C.W. (“Father”) are the biological parents of the minor
children, L.W. (d.o.b. November 2, 2013), and S.W. (d.o.b. December 8, 2014). In
May 2015, the children were adjudicated dependent and committed to the
temporary custody of CCDCFS in Cuyahoga J.C. Nos. AD-14912483 and AD-
14915289. The children remained in the agency’s custody until November 2017,
when the children were committed to the legal custody of their paternal
grandmother, S.H.2
1The children’s biological father, C.W., appeals from the juvenile court’s judgment in 8th
Dist. Cuyahoga No. 107648.
2 In February 2017, this court reversed the trial court’s previous order that terminated
Mother and Father’s parental rights and placed L.W. and S.W. in the permanent custody of
the agency. In re L.W., 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657. On remand, the
children’s paternal grandmother was granted legal custody.
However, before the children could be placed in the paternal
grandmother’s home, she notified CCDCFS that she was no longer willing to care for
the children. Based on this information, the agency immediately filed a complaint
in December 2017, alleging that L.W. and S.W. were neglected and dependent
children pursuant to R.C. 2151.03(A)(3) and 2151.04(D). The complaint further
requested the court to grant a disposition of permanent custody to the agency based
on Mother and Father’s failure to comply with certain aspects of their respective case
plans. Shortly thereafter, the court awarded emergency temporary custody of the
children to the agency.
With respect to Mother, the agency alleged that she has a substance
abuse problem and mental health issues “which prevent her from providing
adequate care for the children.” The agency further alleged that Mother “has two
older children who were adjudicated dependent and committed to the permanent
custody of CCDCFS.”
Regarding Father, the agency alleged that he tested positive for
cocaine and marijuana in February 2017. In an amended complaint, the agency
notified the court that Father was arrested on May 26, 2018, and “is currently
incarcerated pending criminal charges for domestic violence, felonious assault, and
obstruction of official business.” Mother was the victim in the domestic violence
incident.
In July 2018, the children were adjudicated dependent. However,
because Mother did not appear for the adjudication hearing, the juvenile court
continued the case for disposition.
On August 7, 2018, the appointed guardian ad litem (“GAL”), Amy
Nash, submitted a report in which she recommended that the juvenile court find
permanent custody to be in the children’s best interests. In the report, the GAL
outlined the children’s custodial history and referenced Mother’s ongoing substance
abuse, mental health, and housing issues. Upon consideration of all relevant factors,
the GAL opined that neither parent “is able or stable enough to care for these
children on a permanent basis, now or in the near future.” In rendering her
recommendation, the GAL noted that the children were too young to express their
wishes.
On August 10, 2018, the court held a hearing on the agency’s
dispositional prayer of permanent custody. At the hearing, CCDCFS social worker,
Selina Wright (“Wright”), testified that L.W. came into the agency’s custody when
she was approximately nine months old. S.W. came into the agency’s custody at the
time of her birth. The children were placed in the agency’s custody based on prior
adjudications concerning Mother’s two older children, D.B. and Da.B. In an effort
to facilitate reunification with L.W. and S.W., the agency developed a case plan for
Mother that included objectives for mental health treatment, substance abuse
services, parenting education, and stable housing.
Regarding Mother’s mental health, Wright testified that Mother has
a past history of depression and post-traumatic stress disorder. Wright stated that
since the agency filed its complaint in December 2017, Mother has actively
participated in her mental health services and has been compliant with her required
medication. Thus, Wright stated that Mother has complied with the mental health
requirements of her case plan.
Wright explained that Mother’s case plan included objectives for
substance abuse because the agency had concerns with Mother’s use of marijuana
and alcohol. Wright stated that Mother completed a residential substance abuse
program, but failed to complete the recommended intensive outpatient treatment
program and aftercare. Wright stated that Mother has participated in the outpatient
program on several occasions, but has not successfully completed the program. In
addition, Wright testified that Mother has not appeared for her monthly drug
screens since April 2018. Accordingly, Wright stated that Mother did not complete
her case plan objectives for substance abuse and has not shown “consistent
sobriety.”
Regarding the case plan’s parenting objectives, Wright testified
that Mother completed several parenting classes and complied with her
parenting case plan objective. Wright stated that Mother’s interactions with
the children are safe and appropriate. However, Wright testified that she has
lingering concerns with Mother’s “decision making” and her ability to provide
for the children’s basic needs. Wright explained that while Mother consistently
visited the children between December 2017 and May 2018, she “stopped
attending visitation when Father was arrested.” Wright testified that Mother
has only visited the children once since June 2018. As a result, the agency
removed Mother from the visitation schedule. Wright further testified that
since the domestic abuse incident with Father, Mother does not have stable
housing and is currently living with an unidentified friend.
Finally, Wright provided testimony regarding the children’s
current placement. She stated that L.W. and S.W. have lived together in the
same foster home since February 2016 without interruption. Wright testified
that she has observed the children in the foster home and believes their needs
are being met. Wright described L.W. and S.W. as being “comfortable,”
“happy,” and “well taken care of.” Wright stated, however, that the foster
parents were not likely to adopt the children because the foster mother is “in
her 60s.”
Based on the foregoing circumstances, Wright opined that the
agency would not be able to reunify the children with Mother within a
reasonable time. She stated that Mother’s housing “is unknown and unstable,”
and that the agency cannot measure Mother’s sobriety unless she completes
the necessary outpatient drug program and aftercare. During her cross-
examination, however, Wright stated that she was aware Mother was working
with a governmental agency to obtain housing and social security benefits.
Wright admitted that if Mother was able to receive social security benefits, it
“could alleviate some of the concerns as far as basic needs and being able to
provide for the children.”
Upon hearing the testimony presented at the hearing, the GAL
reiterated her recommendation that permanent custody was in the children’s
best interests. The GAL emphasized the children’s need for permanency and
discussed the “emotional roller coaster” they have been subjected to since the
time they were removed from their parents’ home. The GAL explained that
“the girls have three people they call mom” and “they need one home that they
are not going to be removed from.” To this end, the GAL opined that the foster
parents were bonded with the children and were meeting their individual
needs.
With respect to the GAL’s interaction with Mother and Father,
the GAL testified that the parents were not consistent with their respective
case plans. She explained:
They work on [their case plan] and then they stop working on it and
they work on it and then they stop. It has not been consistent. It seems
right before permanent custody trial they start working their case plan,
which should have — things keep happening that interfere with their
progress. I admit that. Like going to prison. But lately I have not been
able to reach Mother, so I don’t know her current situation, like I don’t
think she has a phone. I don’t know where she lives. But after almost
five years I think their case plan should have been completed and she’s
had a lot of support from different agencies, Mother has.
Accordingly, the GAL opined that Mother and Father have not
completed their case plan objectives, as evidenced by their continued substance
abuse, housing, and domestic violence issues.
Following the disposition hearing, the trial court issued separate
journal entries terminating Mother’s parental rights and ordering L.W. and S.W. to
be placed in the permanent custody of CCDCFS. Mother now appeals the trial
court’s judgment.
II. Law and Analysis
In her first assignment of error, Mother argues the trial court’s order
granting permanent custody to the agency was not based upon sufficient clear and
convincing evidence, and was against the manifest weight of the evidence. Mother
contends that the termination of her parental rights was “unnecessarily severe”
given her efforts to comply with her case plan.
As this court has routinely stated, we take our responsibility in
reviewing cases involving the termination of parental rights and the award of
permanent custody very seriously. A parent has a “‘fundamental liberty interest’ in
the care, custody and management” of his or her child, 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), and 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).
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.,
8th Dist. Cuyahoga No. 104325, 2017-Ohio-1037, ¶ 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,’” it is “an alternative [of] last resort.” 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; 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). Where parental rights are
terminated, the goal is to create “a more stable life” for dependent children and to
“facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing In
re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, 5
(Aug. 1, 1986).
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. Pursuant to this division, before a trial court can terminate
parental rights and grant permanent custody to a county agency, the court must find
by clear and convincing evidence (1) the existence of any one of the conditions set
forth in R.C. 2151.414(B)(1)(a) through (e), and (2) that granting permanent custody
to the agency is in the best interest of the child.
Clear and convincing evidence is 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
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 Awkal, 95 Ohio App. 3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), fn. 2,
citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St. 3d 176, 180-
181, 512 N.E.2d 979 (1987).
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.
1. First Prong — R.C. 2151.414(B)(1)
Under the first prong of R.C. 2151.414, 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.
As an initial matter, we note that the trial court determined that the
children have been in the temporary custody of a public agency for 12 or more
months of a consecutive 22-month period. See R.C. 2151.414(B)(1)(d). This finding
is not challenged and is supported by the record. The time period for R.C.
2151.414(B)(1)(d) is calculated from when the child enters agency custody and the
filing of the motion for permanent custody. In re C.W., 104 Ohio St. 3d 163, 2004-
Ohio-6411, 818 N.E.2d 1176, ¶ 26. With the exception of a brief period of time when
the children were placed in the legal custody of their paternal grandmother, clear
and convincing evidence established that the children had been in the temporary
custody of CCDCFS for well over two years at the time the December 2017 complaint
was filed.3 Accordingly, the trial court could immediately proceed to a
determination of whether permanent custody was in their best interest. See In re
T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 18 (stating that when R.C.
2151.414(B)(1)(d) applies, the trial court is not required to make any other finding
under R.C. 2151.414(B)).
Nevertheless, the trial court in this case made the alternative finding
pursuant to R.C. 2151.414(B)(1)(a) that each child could not be placed with either
parent within a reasonable time or should not be placed with either parent. Mother’s
argument on appeal is limited to this determination. Although this court is not
required to do so, we address Mother’s challenges to the trial court’s R.C.
2151.414(B)(1)(a) finding.
In the event that R.C. 2151.414(B)(1)(a) applies, courts look to the
factors set forth in R.C. 2151.414(E) to determine whether a child cannot be placed
with a parent within a reasonable time or should not be placed with a parent. These
factors include, among others, whether the parent failed continuously and
3 The children were placed in the agency’s temporary custody in May 2015. For clarity, we
emphasize that while paternal grandmother was granted legal custody in November 2017,
the children were never placed in her physical custody. The children remained in their
foster home.
repeatedly to substantially remedy the conditions that had caused the removal of the
child (R.C. 2151.414(E)(1)); whether the parent has demonstrated a lack of
commitment toward the child by failing to regularly 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 (R.C. 2151.414(E)(4)); whether the parent
has had parental rights involuntarily terminated with respect to a sibling of the child
and has failed to provide clear and convincing evidence to prove that,
notwithstanding the prior termination, the parent can provide a legally secure
permanent placement and adequate care for the health, welfare, and safety of the
child. (R.C. 2151.414(E)(11)); and whether the parent for any reason is unwilling to
provide food, clothing, shelter, and other basic necessities for the child R.C.
2151.414(E)(14). The statute also permits the court to consider “any other factor the
court considers relevant.” R.C. 2151.414(E)(16).
Only one of the enumerated factors under R.C. 2151.414(E) is
required to exist for the court to make the finding that “the child cannot be placed
with either parent within a reasonable time or should not be placed with either
parent.” In re Glenn, 139 Ohio App. 3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000);
In re R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 2012-Ohio-4290, ¶ 14 (the
existence of only one factor will support the court’s finding that the child cannot be
reunified with the parent within a reasonable time).
In this case, the juvenile court’s finding under R.C. 2151.414(B)(1)(a)
relied on the factors set forth under R.C. 2151.414(E)(1),(4), (11), (12), and (14). The
court stated, in relevant part:
The Court finds * * * that one or more of the factors in division (E) of
section 2151.414 of the Revised Code exist and the child cannot be
placed with one of the child’s parents within a reasonable time or
should not be placed with either parent;
***
The Court further finds that following the placement of the child
outside the 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.
The parent has demonstrated a lack of commitment towards 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 has had parental rights terminated with respect to a sibling
of the child and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the
parent can provide a legally secure permanent placement and adequate
care for the health, welfare, and safety of the child.
The Father is incarcerated at the time of the filing of the motion for
permanent custody or the dispositional hearing of the child and will not
be available to care for the child for at least eighteen months after the
filing of the motion for permanent custody or the dispositional hearing.
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.
On appeal, Mother argues the record does not support the trial court’s
conclusion that L.W. and S.W. could not, or should not, be placed with her within a
reasonable period of time. She contends that she has substantially completed her
case plan objectives and was working diligently with a governmental agency to
obtain housing and social security benefits. Thus, Mother submits that “given the
efforts [she] has made to rehabilitate herself and remedy the conditions giving rise
to the children being placed in CCDCFS custody, the termination of her parental
rights was unnecessarily severe.”
We recognize the steps Mother has taken to address her mental health
and parenting skills. Unquestionably, Mother has a strong bond with her children
and has demonstrated the capacity to interact with L.W. and S.W. in an appropriate
and safe manner. However, “[s]ubstantial compliance with a case plan does not
mean that the parent has achieved the ultimate goals of the plan or that the parent
has substantially remedied the conditions that caused the children to be removed.”
In re A.P., 8th Dist. Cuyahoga No. 104129, 2016-Ohio-5848, ¶ 19, citing In re J.B.,
8th Dist. Cuyahoga Nos. 98566 and 98567, 2013-Ohio-1706, ¶ 139. In this case, the
record clearly and convincingly supports the trial court’s determination that,
notwithstanding Mother’s compliance with portions of her case plan, the children
could not be placed with her within a reasonable period of time.
Regarding the relevant R.C. 2151.414(E) factors, it is undisputed that
Mother has had her parental rights involuntarily terminated with respect to L.W.
and S.W.’s two older siblings. Despite her long history with the agency, Mother has
failed to demonstrate that she can provide a permanent home or care for the health,
welfare, and safety of L.W. and S.W. Here, CCDCFS social worker Wright provided
extensive testimony detailing the efforts the agency took to reunify the children with
Mother and the case plan the agency created to facilitate this objective. Wright
testified that although Mother successfully completed portions of her case plan, she
failed to remedy the conditions that led to the children’s removal by not completing
her case plan objectives for substance abuse and stable housing.
In support of her opinion, Wright testified that Mother failed to
complete a necessary intensive outpatient treatment program and failed to appear
for required drug screens in the months directly proceeding the dispositional
hearing. In addition, Wright testified that Mother’s weekly visits with L.W. and S.W.
deteriorated significantly following Father’s arrest in May 2018. Wright explained
that Mother only appeared for one weekly visit “since the end of May [2018].”
Because Mother was not making herself regularly available, the agency was forced
to remove her from the visitation schedule. Finally, Wright testified at length
regarding Mother’s inability to obtain consistently stable housing “throughout the
history of the case.” Wright testified that at the time of the hearing, Mother did not
have a place of her own and was living with a friend.
Collectively, this evidence supports the trial court’s finding that
Mother failed to remedy the conditions that caused the children to be placed outside
the home. Mother’s actions also demonstrated a lack of commitment to L.W. and
S.W., and showed she was unable to provide them with a safe and permanent home.
Accordingly, we find the record clearly and convincingly supports the court’s
conclusion that the children could not or should not be placed with Mother within a
reasonable time.
2. The Juvenile Court’s Best Interests Determination
Having found that the trial court properly concluded that at least one
of the R.C. 2151.414(B)(1) conditions applied, we must determine whether the trial
court appropriately found by clear and convincing evidence that granting
permanent custody to the agency is in the best interest of the children.
We review a trial court’s determination of a child’s best interest under
R.C. 2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No. 95188,
2010-Ohio-5618, ¶ 47. An abuse of discretion implies that the court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140 (1983).
In determining the best interest of a child, 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). Relevant to the circumstances of this case, R.C.
2151.414(E)(11) provides:
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child * * * and the parent has failed to provide
clear and convincing evidence to prove that, notwithstanding the prior
termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety of the
child.
Although a trial court is required to consider each relevant factor
under R.C. 2151.414(D)(1) in making a determination regarding permanent custody,
“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).
In this case, the trial court’s judgment entries expressly state that the
court considered each of the R.C. 2151.414(D)(1) factors in determining that an
award of permanent custody to the agency was in the children’s best interests. The
court explained its best interest determination at the conclusion of the permanent
custody hearing, stating:
[W]hen we get to best interests, you look at the inner-relationship with
the children to the parents. * * * I don’t think I’ve ever had a case where
a parent has indicated they don’t love their children. I don’t think that’s
ever been stated on the record. The love is not enough. If it were, we
wouldn’t have these cases. There’s got to be more than that for these
kids. Love, protection, stability, providing a future for them, a present
for them, that needs to be paramount.
So when you look at the factors, [Mother and Father] haven’t
successfully completed their case plan services, can’t provide basic
needs, neither one at this time, again, a lack of commitment to the
children.
Well — it started off as being consistent, but mom hasn’t visited in the
last – well, let me take that back. She’s visited one time in the last two
months. There’s been no restrictions on mom with regard to her
visitation, no physical restrictions or limitations for her, yet she has not
met that requirement.
***
Parental rights, of course, for mom has been terminated with respect to
two siblings of [L.W. and S.W.]. And while the children according to
this particular complaint have been in the emergency custody of the
Agency for only eight months. If you look at the custodial history,
they’ve been with the Agency all but three months of their lives. One’s
four, the other one’s three. Four going on five, three going on four.
Is there an issue of permanency? You better believe that there’s a need
for permanency for these children. Now, I know that counsel for the
parents are arguing that this may not be the final home for these
children, but they’re stable. Stability for me is that they are under
supervision of the Agency and they’re going to be able to provide a safe,
not only safe environment for them, but a predictable environment for
them. And going to live with mom and dad is unpredictable and those
kids should not be exposed to that. That’s not fair.
For one they didn’t ask to be here. And when they did arrive, parents
have the responsibility for ensuring the predictability for their kids in
terms of stability, in terms of being able to have a roof over their head,
not being exposed to violence, not being exposed to individuals who
may be under the influence. Kids don’t deserve that.
So based on the Court’s arguments as well as the facts that have been
introduced in this matter and understanding some of the things that
have been reported in the GAL report. The Court still finds that the
agency’s met its burden of proof with respect to a finding of the
children’s best interest being permanent custody to the Division of
Children & Family Services.
After careful consideration of the testimony presented at the
permanent custody hearing, we find there is competent, credible evidence in the
record to support the juvenile court’s reliance on the factors set forth under R.C.
2151.414(D) and its conclusion that permanent custody to the agency is in children’s
best interests.
As stated, the testimony presented at the hearing demonstrated the
breadth of the children’s custodial history, which began in May 2015, and their need
for immediate permanency. In addition, the agency introduced evidence that
Mother previously had her parental rights terminated “with respect to siblings of
[L.W. and S.W.].” Regarding the children’s current placement, the agency’s social
worker testified that the children shared a bond with their foster parents and are
having their individual needs met. In contrast, the record makes clear that Mother
is unable to provide L.W. and S.W. with stability or adequate care. While Mother
took necessary steps to improve her mental health and parenting skills, the evidence
established that she is still hampered by the conditions that caused the children to
be removed from the home. Specifically, Mother has failed to remedy her substance
abuse problems and has not demonstrated the capacity to obtain stable, suitable
housing. Moreover, the testimony presented at the hearing established that
Mother’s visits with the children became inconsistent following Father’s arrest in
May 2018. For these reasons, the GAL, speaking on behalf of the young children,
recommended that the court find permanent custody to be in the children’s best
interests.
Collectively, the foregoing evidence supports the trial court’s
determination that each of the enumerated factors under R.C. 2151.414(D)(1) weigh
in favor of permanent custody. Accordingly, we find that the trial court did not
abuse its discretion in determining that permanent custody of the children should
be awarded to CCDCFS.
Mother’s first assignment of error is overruled.
A. The Guardian Ad Litem’s Report
In her second assignment of error, Mother argues the trial court erred
in conducting the permanent custody hearing just three days after the GAL report
was filed in violation of Sup.R. 48 and Loc.R. 18 of the Cuyahoga County Court of
Common Pleas, Juvenile Division.
The role of a guardian ad litem in a permanent custody proceeding is
to protect the child’s interest, to ensure that the child’s interests are represented
throughout the proceedings and to assist the trial court in its determination of what
is in the child’s best interest. In re C.B., 129 Ohio St. 3d 231, 2011-Ohio-2899, 951
N.E.2d 398, ¶ 14, citing R.C. 2151.281(B) and Sup.R. 48(B)(1). This is accomplished
by the guardian ad litem conducting an investigation of the child’s situation and then
making recommendations to the court as to what the guardian ad litem believes
would be in the child’s best interest. In re J.C., 4th Dist. Adams No. 07CA833, 2007-
Ohio-3781, ¶ 13.
Sup.R. 48(F) outlines the guardian ad litem’s duties when preparing
a final report in a juvenile matter. As relevant here, Sup.R. 48(F)(1)(c) states:
(1) In juvenile abuse, neglect, and dependency cases and actions to
terminate parental rights:
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(c) Unless waived by all parties or unless the due date is extended by
the court, the final report shall be filed with the court and made
available to the parties for inspection no less than seven days before the
dispositional hearing.
In turn, Loc.R. 18 requires a guardian ad litem to submit a written
report “with the court no less than seven (7) days prior to the final hearing in
accordance with Rule 48 of the Rules of Superintendence for the Courts of Ohio or
as otherwise ordered by the court.”
As this court and others have recognized, “‘Sup.R. 48 provides * * *
good guidelines for the conduct of a guardian ad litem in meeting his or her
responsibilities in representing the best interest of a child in order to provide the
court with relevant information and an informed recommendation.’” In re C.O., 8th
Dist. Cuyahoga Nos. 99334 and 99335, 2013-Ohio-5239, ¶ 14, quoting In re K.G.,
9th Dist. Wayne No. 10CA16, 2010-Ohio-4399, ¶ 12. However, the Rules of
Superintendence are only “‘general guidelines for the conduct of the courts’” and
“‘do not create substantive rights in individuals or procedural law.’” In re C.O. at
¶ 14, quoting In re K.G. at ¶ 11. As such, it has been generally held that a guardian
ad litem’s failure to comply with Sup.R. 48 is not, in and of itself, grounds for
reversal of a custody determination. In re C.O. at ¶ 14; In re N.B., 8th Dist. Cuyahoga
No. 105028, 2017-Ohio-1376, ¶ 26; Miller v. Miller, 4th Dist. Athens No. 14CA6,
2014-Ohio-5127, ¶ 14-18.
Likewise, courts are “given latitude” in following their own local rules.
As such, enforcement of such rules is generally within the sound discretion of the
court. Citibank, N.A. v. Katz, 8th Dist. Cuyahoga No. 98753, 2013-Ohio-1041, ¶ 29.
“So long as a trial court’s failure to comply with or enforce its local rules does not
affect due process or other constitutional rights, ‘there is no error when, in its sound
discretion, the court decides that the peculiar circumstances of a case require
deviation from its own rules.’” Id., quoting Dodson v. Maines, 6th Dist. Sandusky
No. S-11-012, 2012-Ohio-2548, ¶ 47.
In this case, counsel for Mother and counsel for Father each objected
to the GAL report and requested a continuance so that they could properly
investigate the findings of the report. Counsel argued the report was not filed in
accordance with the court’s local rules or the rules of superintendence. Following a
brief discussion on the record, the trial court denied the motion to continue, stating
that a continuance would be a disservice to the children given their need for
permanency. The court further expressed that Mother and Father would have a
difficult time demonstrating that they have been “prejudiced by the fact that [the
GAL report] was filed three days before” the hearing.
On appeal, Mother reiterates her argument that the juvenile court
erred in proceeding with the permanent custody hearing and granting permanent
custody to CCDCFS because the GAL’s report failed to comply with Sup.R. 48(F) and
Loc.R. 18 of the Cuyahoga County Court of Common Pleas, Juvenile Division.
Mother contends she was unable to adequately investigate the GAL’s findings
because the report was not timely filed.
This court has previously rejected an argument analogous to the
circumstances presented in this case. In In re M.S., 8th Dist. Cuyahoga Nos. 102127
and 102128, 2015-Ohio-1847, the GAL submitted a report in which he
recommended that permanent custody be granted to CCDCFS. As in this case, the
GAL report was filed just three days before the dispositional hearing. At the
dispositional hearing, the parents objected to the GAL’s report on the ground that it
was not filed seven days before the hearing as required under Sup.R. 48(D) and
court’s local rules. The parties moved to continue the permanent custody hearing
based on the untimely filing. On appeal, the Father reiterated his argument that the
trial court erred in proceeding with the permanent custody hearing because the
GAL’s report was untimely. This court rejected Father’s position, stating, in relevant
part:
Although it is undisputed that the GAL report was filed three days
before the hearing instead of seven days before the hearing as specified
in Sup.R. 48 and Cuyahoga Cty. Juv. Loc.R. 20, there is nothing in the
record that suggests that appellant was prejudiced by the GAL’s
untimely submission of his report. Although appellant claimed that he
lacked adequate time to prepare for cross-examination of the GAL, he
failed to identify any new or surprising information in the GAL’s report
that he was not fully prepared to address. Appellant had the
opportunity to review the report before the hearing, an opportunity to
cross-examine the GAL regarding his report and recommendation at
the hearing and the trial court granted appellant leave to make a motion
to continue the proceedings to a second hearing date if he found
something surprising in the GAL’s report or testimony as the hearing
progressed. However, appellant never made such a motion.
* * * Because appellant has not established any prejudice resulting
from the delay in the filing of the GAL’s report * * *, we find that the
trial court did not abuse its discretion in proceeding with the hearing
over these objections.
Id. at ¶ 38-39.
After careful review, we find Mother has failed to establish any
prejudice resulting from the delay in the filing of the GAL report. As in In re M.S.,
counsel for Mother had the opportunity to review the report before the hearing and
thoroughly cross-examined the GAL regarding her report and recommendation. In
fact, counsel’s cross-examination proved effective, as the GAL admitted that certain
findings rendered in her report were inconsistent with the social worker’s testimony.
For instance, the GAL conceded that her report inaccurately states that Mother “is
currently on probation due to arson charges,” as the evidence established that
Mother successfully completed her probation in May 2018. In addition, the GAL
admitted that although Mother had been inconsistent with her mental health in the
past, she had demonstrated consistency with her mental health services since the
agency’s complaint was filed in December 2017.
Under these circumstances, it is evident that counsel had adequate
time to prepare for the cross-examination of the GAL, and was not surprised by the
information contained in the report or the GAL’s testimony during the permanent
custody hearing. Because the timing of the report’s filing did not preclude Mother
from presenting an adequate defense, we find the trial court did not abuse its
discretion in proceeding with the permanent custody hearing. See In re S.S., 10th
Dist. Franklin No. 17AP-682, 2018-Ohio-1249.
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 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR