In re K.G.

[Cite as In re K.G., 2020-Ohio-6744.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE K.G., ET AL. :
: No. 109590
Minor Children :
:
[Appeal by Mother, D.G.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 17, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD18904261 and AD18904262
Appearances:
Timothy R. Sterkel, for appellant
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Rachel Matgouranis, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Appellant D.G. (hereinafter referred to as “Mother”) appeals the
determination of the Juvenile Division of the Cuyahoga County Court of Common
Pleas that it is in the best interest of her children K.G. and K.W. to be placed in the
permanent custody of the Cuyahoga County Department of Children and Family
Services (“CCDCFS”). Mother asks that this court reverse the juvenile court’s
decision and remand for further proceedings.1
As required by App.R. 11.1(D), this court has expedited the hearing
and disposition of this appeal. We affirm.
I. Background
On March 29, 2018, CCDCFS filed a complaint that alleged K.G. and
K.W. to be neglected children and moved for temporary custody of K.G. and K.W.
based in part on Mother’s lack of safe, stable housing, and substance abuse issues.
CCDCFS moved for emergency predispositional temporary custody on April 16,
2018, when police found Mother passed out in her vehicle that was parked on
railroad tracks with the children inside. Mother failed the field sobriety test. Three
weeks prior to that incident, Mother crashed into a tree with the children in the
vehicle but there was no police report. The agency learned of the incident when one
of the children appeared at school with $230 provided by Mother in exchange for
the child’s secrecy about the crash and Mother’s intoxication. The motion was
granted at the emergency hearing the same date.
The adjudication and disposition hearing was held on June 20, 2018.
The children were adjudicated neglected and were committed to the temporary
1 The older sibling of the children, who attained the age of 18 years old shortly after
the permanency proceeding, was also committed to permanent custody during the
proceedings. J.C. No. AD18902287. Pursuant to Mother’s amended notice of appeal in
this case, the instant challenge relates only to custody of the two younger children.
custody of CCDCFS. Mother was represented by counsel at all proceedings. The
motion was amended on December 6, 2019, to add an alleged father of K.W.
CCDCFS moved for permanent custody on February 11, 2019, and on
April 2, 2019,2 Mother was arraigned, advised of her legal rights, and executed a
waiver of service. The matter was tried on February 4, 2020. Mother was
represented by counsel, A.L., father of the elder child was represented by counsel
and a guardian ad litem (“GAL”), L.R., alleged father of K.G., was represented by
counsel, and the children were represented by counsel and a GAL. W.W., the father
by affidavit of K.W., did not respond to or participate in any of the agency activities
or court proceedings. Another individual, S.F., was identified as the potential
biological father of K.W. immediately prior to the permanent custody trial but had
not taken a paternity test.
Social Worker Linda Yeldell (“Social Worker Yeldell”) testified on
behalf of CCDCFS. The children’s GAL also addressed the court. The trial court
determined that Mother and the fathers of the children were unable to care for the
children, cited the facts underlying the determination, and acknowledged that no
other interested person had filed or been identified in a motion for legal custody.
The children desired to remain in the foster home where they have been happy and
thriving. The case worker and GAL for the children recommended permanent
custody and adoption, and the trial court granted permanent custody to CCDCFS.
2 The transcript is erroneously dated April 12, 2019.
Mother appeals.
II. Assignments of Error
Mother proffers the following assignment of errors:
I. The trial court committed error when it failed to comply with the
mandatory requirements of Juv.R. 37 and R.C. 2151.35.
II. The trial court committed error when it proceeded with the
permanent custody hearing without complying with 25 U.S.C.
1912.
III. The trial court committed error when it denied Appellant’s
request to continue.
IV. The trial court committed error when it terminated Appellant’s
parental rights and granted permanent custody to CCDCFS.
III. Discussion
A. Juv.R. 37 and R.C. 2151.35
Mother argues in the first assigned error that the trial court
committed error when it failed to comply with the mandatory requirements of
Juv.R. 37 and R.C. 2151.35.
Juv.R. 37(A) provides in relevant part:
(A) Record of proceedings.
The juvenile court shall make a record of adjudicatory and dispositional
proceedings in abuse, neglect, dependent, unruly, and delinquent
cases; permanent custody cases; and proceedings before magistrates.
In all other proceedings governed by these rules, a record shall be made
upon request of a party or upon motion of the court. The record shall
be taken in shorthand, stenotype, or by any other adequate mechanical,
electronic, or video recording device.
R.C. 2151.35(A)(2) provides:
A record of all testimony and other oral proceedings in juvenile court
shall be made in all proceedings that are held pursuant to section
2151.414 of the Revised Code or in which an order of disposition may
be made pursuant to division (A)(4) of section 2151.353 of the Revised
Code, and shall be made upon request in any other proceedings. The
record shall be made as provided in section 2301.20 of the Revised
Code.
The record includes: (1) the April 16, 2018 transcript of proceedings
on the complaint and emergency motion for predispositional temporary custody;
(2) the June 20, 2018 adjudication and disposition hearing where the children were
declared neglected and temporary emergency custody awarded to CCDCFS; (3) the
April 12, 2019 proceedings to advise Mother of her constitutional rights and to
ensure Mother’s understanding of the motion to modify temporary custody to
permanent custody; and (4) the February 5, 2020 permanent custody proceedings.
The complete transcripts for the adjudicatory and dispositional
proceedings are in the record. “Neither Juv.R. 37 nor R.C. 2151.35 make any
mention of recording pretrials or scheduling conferences.” In re D.H., 177 Ohio
App.3d 246, 2008-Ohio-3686, 894 N.E.2d 364, ¶ 53 (8th Dist.).
The first assignment of error is overruled.
B. 25 U.S.C. 1912
Mother argues that the trial court failed to comply with the Indian
Child Welfare Act (“ICWA”), 25 U.S.C. 1912.
In order to invoke the provisions of the ICWA, there must be a
preliminary showing that a custody proceeding involves an “Indian
child.” In re Williams, 9th Dist. [Summit] Nos. 20773 and 20786,
2002-Ohio-321, ¶ 22. An “Indian child” is defined as “any unmarried
person who is under age eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe[.]” 25 U.S.C.
1903(4). The party who asserts the applicability of the ICWA bears the
burden of proving that a child meets the statutory definition of an
“Indian child.” Williams at ¶ 22. To meet this burden, the party
asserting the applicability of the ICWA must do more than raise the
possibility that a child has Native American ancestry. See In re B.S.,
184 Ohio App.3d 463, 2009-Ohio-5497, 921 N.E.2d 320, ¶ 63 (8th
Dist).
In re: A.C., 8th Dist. Cuyahoga No. 99057, 2013-Ohio-1802, ¶ 41.
The record reflects multiple inquiries by the trial court.
Court: And since you’ve had the case has mother reported any
Native American ancestry for herself of the children?
Agency: No.
Court: Have you discovered any Native American ancestry for
either of the fathers?
Agency: No.
(Tr. 15-16.)
CCDCFS also addressed ICWA during direct examination of the
CCDCFS intake and extended social workers respectively:
Counsel: Have any of the parents reported any Native American
Ancestry?
Witness: No.
Counsel: For themselves or the children?
Witness: No.
Counsel: Have they been asked?
Witness: In the staffing they were asked.
Counsel: And what did they say?
Witness: No.
***
Counsel: Have you learned through the course of your investigation
whether any of the parents have Native American
Ancestry?
Witness: No.
(Tr. 13, 36.)
As further clarification, the trial court inquired:
Court: [Counsel for Mother], just so the record’s clear, does your
client have any Native American Ancestry?
Counsel: No, your honor.
(Tr. 42.)
The trial court asked Mother directly at the April 2, 2019 hearing:
Court: Okay. And final question, to the best of your knowledge
do you or your children have any Native American
ancestry?
Mother: No.
(Tr. 8.)
Finally, the trial court’s journal entry and findings of fact for
permanent custody of each child provides that “the child is not a member of a
federally recognized Indian tribe, and is not in the custody of an Indian custodian.”
Journal entry Nos. 0913175575 and 0913175557, pg. 3 (Feb. 18, 2020).
The second assigned error is overruled.
C. Continuance
Mother also cites as error the trial court’s refusal to continue the trial
due to the alleged delivery of approximately 400 plus pages of discovery the day
before trial. We do not find error here.
Absent an abuse of discretion, a trial court’s determination of whether
to grant a continuance is not subject to reversal. In re K.D., 8th Dist. Cuyahoga
No. 81843, 2003-Ohio-1847, ¶ 10. An abuse of discretion equates to an
unreasonable, arbitrary, or unconscionable decision. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Also,
[U]nder Juv.R. 23, “[c]ontinuances shall be granted only when
imperative to secure fair treatment for the parties.” In addition,
Loc.R. 35(C) of the Cuyahoga County Court of Common Pleas, Juvenile
Division, 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.
In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-Ohio-3373, ¶ 28.
The trial court thoroughly addressed this matter on the record. A
review of that record reveals that approximately 250 pages were erroneously
provided to Mother but were actually related to the eldest child’s father’s inability to
care for that child. Provision of the documents was delayed due to the father’s
refusal to sign a release.
Counsel for CCDCFS explained that the remaining documents were
duplicates of Mother’s treatment and counseling records that were originally
delivered in October:
With regards to the discovery, [Mother’s counsel] was provided with
Mother’s most recent treatment records in October.
I subsequently subpoenaed those records to see if she had re-engaged,
if there was anything additional, and they sent me the same exact
records again except with a certification page saying these are the
records from them.
I decided, although they were the exact same records that were already
provided, that I would drag those in and do it as one account just so
that — * * *
I would provide the children discovery just in case I decided to submit
the ones with the updated certification page as an exhibit instead of the
other ones.
He was provided with all of the records in October for Mother’s
treatment. * * *
I explained to him yesterday and I pulled it up and showed him that it
is the same records.
In fact, I believe there’s been no new things that (inaudible) I think it
was 2018.
I explained that to him. He seemed to understand at the time that
these were just updated and that he has had these records for months.
(Tr. 9-10.)
CCDCFS added that several pages of recent activity logs were
provided but denied Mother’s claim that the agency had an ongoing obligation to
supplement discovery. Mother last requested discovery in April 2018, and the
agency voluntarily updated the information “multiple times.” (Tr. 11.)
I was reviewing updated activity logs myself for preparation for trial
and out of courtesy I took the time to redact and send them to him.
He was not entitled to those documents. There has been no discovery
request, but I provided them recently as I was presenting them out of
courtesy.
(Tr. 12.)
CCDCFS is correct. “[T]here is no requirement that disclosures or
witness lists be updated pursuant to Juv.R. 24.” In re J.L., 8th Dist. Cuyahoga
No. 84368, 2004-Ohio-6024, ¶ 25. In fact, “‘[a]bsent a motion to compel, the trial
court in juvenile proceedings does not abuse its discretion in admitting evidence not
previously disclosed by the state.’” Id., quoting In re Gilbert, 12th Dist. Butler
No. CA86-10-144, 1987 Ohio App. LEXIS 8876, at *11 (Sept. 28, 1987).
In additional support for the continuance claim, Mother argued that
an alleged blood relative had recently come forward though no motion regarding the
purported relative was before the trial court. In fact, the existence of the individual
came to light on January 22, 2020, just days before trial. The trial court advised that
“all proceedings” do not stop “because at the last minute somebody found somebody
who could be a custodian?” (Tr. 24.) In addition, CCDCFS stated that the individual,
if eligible, would only be considered for custody of the eldest child.
Mother also offered that the defense had “relaxed preparation” for
the trial by “[n]ot going through all those documents” because the defense
understood that the proceedings were only going to move forward regarding the
older sibling. (Tr. 23.) Counsel for CCDCFS explained that Mother’s counsel
inquired about the agency moving forward at trial for the elder sibling who would
attain the age of eighteen years old approximately two weeks after the scheduled
trial. Counsel was advised that permission for a continuance for any of the children
required approval of the agency. CCDCFS declined.
CCDCFS counsel expounded that the cited discussion had just
occurred the previous afternoon:
It’s not like I cut off his ability to prepare for trial for months thinking —
I mean, this is just affecting a few-hour window the day before trial, so
it shouldn’t have had any effect on whether he could relax his
preparation.
(Tr. 26-27.) The trial court ruled. “Okay. I have heard enough. The motion for
continuance is denied. We will go forward on all three [children].” (Tr. 27.)
We do not find that the trial court abused its discretion.
The third assigned error is overruled.
D. Permanent Custody Award
Parents have a constitutionally protected, fundamental interest in the
management, custody, and care of their children. Troxel v. Granville, 530 U.S. 57,
66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). “We recognize, however, that
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.
A parent’s right to raise a child is not absolute and 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, ¶ 29 (8th Dist.), quoting
In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
CCDCFS filed for permanent custody on the ground that the children
have been neglected. A neglected child is one “[w]ho lacks adequate parental care
because of the faults or habits of the child’s parents, guardian, or custodian.”
R.C. 2151.03(A)(2). Under R.C. 2151.03(A)(3), a neglected child is one “[w]hose
parents, guardian, or custodian neglects the child or refuses to provide proper or
necessary subsistence, education, medical or surgical care or treatment, or other
care necessary for the child’s health, morals, or well-being.” R.C. 2151.03(A)(3).
R.C. 2151.353(A)(4) authorizes a trial court to grant permanent
custody to an agency where a child has been adjudicated neglected, dependent, or
abused. The trial court must determine by clear and convincing evidence that:
(1) “the child cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent” pursuant to R.C. 2151.414(E); and
(2) “permanent commitment is in the best interest of the child” pursuant to
R.C. 2151.414(D)(1). R.C. 2151.353(A)(4).
1. Standard of Review
To terminate parental rights and grant permanent custody to a county
agency, the record must demonstrate by clear and convincing evidence the
following: (1) the existence of one of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e); and (2) permanent custody is in the best interest
of the child. In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-
Ohio-4064, ¶ 27. “Clear and convincing evidence” is that quantum of evidence that
instills in the trier of fact a firm belief or conviction as to the allegations sought to be
established. In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13, citing
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
When determining the child’s best interest pursuant to
R.C. 2151.414(D)(1), courts analyze the following factors: (1) the interaction and
interrelationship of the child with others; (2) the wishes of the child; (3) the
custodial history of the child; (4) the child’s need for a legally secure placement and
whether such a placement can be achieved without permanent custody; and
(5) whether any of the factors in divisions R.C. 2151.414(E)(7) to (11) apply.
Also,
[a] juvenile court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence “if the
record contains some competent, credible evidence from which the
court could have found that the essential statutory elements for
permanent custody had been established by clear and convincing
evidence.”
In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62, quoting In re A.P.,
8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
The “best interest determination” focuses on the child, not the parent.
R.C. 2151.414(C); In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th
Dist.1994). The discretion that the juvenile court enjoys in deciding whether an
order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
decision will have on the lives of the parties concerned. Id. at 316.
Thus, 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 V.C., 8th Dist. Cuyahoga
Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 52, citing In re L.O., 8th Dist.
Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 22. “An abuse of discretion implies that
the court’s decision was unreasonable, arbitrary or unconscionable.” Id., citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
2. Discussion and Analysis
Mother argues that the custody award is in error because Mother
satisfied the case plan objectives. Social Worker Yeldell was the sole agency witness
at the permanency hearing. A number of certified exhibits that documented
pertinent facts were admitted and are not challenged here.
Social Worker Yeldell was assigned to the case in March 2018. The
agency received a report in January 2018, that Mother refused to take the elder
sibling home from the Juvenile Detention Center, and that the younger children had
been seen begging for money and were not being provided for. The agency had
concerns about the housing and Mother’s substance abuse as well as the danger
posed to the children during Mother’s two automobile accidents.
A case plan was formulated with the initial goal of reunification.
Mother was required to meet substance abuse, housing, parenting practice, and
mental health objectives. The substance abuse issues involved alcohol, cocaine, and
marijuana.
Mother failed to complete the intensive outpatient program
treatment plan. Intake occurred on March 29, 2018, and discharge on October 1,
2018. Mother continued to test positive for marijuana, alcohol, and cocaine during
the treatment period.
Mother was reassessed in April 2019 and referred for inpatient
treatment. Mother informed the inpatient agency that she had been using alcohol
and drugs for 20 years and was diagnosed with severe alcohol, severe cannabis, and
cocaine disorder. Mother refused to participate in the program “because she wanted
to work.” (Tr. 40.) Mother was next referred for partial hospital treatment but also
failed to complete the program and continued to test positive.
In December 2019, Mother gave birth to another child. Mother
abused substances throughout the pregnancy and custody of the infant was pending
in a separate action.
Mother was assessed by the mental health counseling service in
August 2018. The provider recommended psychotherapy for Mother’s moods,
relationship issues, unresolved trauma, and to build self-coping skills. A medication
management assessment was also recommended. Mother did not comply with
either recommendation.
Mother was referred to, and completed, parenting services. The
agency opined that Mother did not benefit from the services and questioned
Mother’s decision-making as exemplified by Mother’s decision to engage in
substance abuse through her pregnancy and childbirth.
The house where Mother previously resided with the children burned
down while she and the children were present. As of the trial date, Mother had not
secured housing for the children and was residing with the father of the newborn
who was convicted of assaulting Mother during the pregnancy. Mother visits with
the children under supervision due to the ongoing positive substance abuse tests.
The children have been placed together in a two-parent foster home
where they are thriving, doing well in school, and participating in school activities.
The couple is willing to adopt the children and two more foster children recently
joined the family. Based on Social Worker Yeldell’s personal observations, the
children and foster parents have a close bond and attend to the children’s needs.
The children have not expressed a desire to return to Mother.
Social Worker Yeldell acknowledged during cross-examination that
Mother stated that she completed a substance abuse program, parenting program,
and mental health counseling. Only the parenting class is documented, a fact
already acknowledged by the agency.
Social Worker Yeldell recommended that permanent custody is in the
best interest of the children. The fathers are unable to care for the children and
Mother is unable to remain sober or provide safe housing.
The GAL for the children testified that permanent custody is in the
best interest of the children. The children have been in what is their third foster
home for 18 months and are comfortable and doing well.
The evidence establishes for the “best interest” purposes of
R.C. 2151.414(D)(1), that the children have bonded with the foster family and
siblings and have resided with the family for 18 months. R.C. 2151.414(D)(1)(a). The
agency and GAL advised that the children did not express a desire to reunify with
Mother and recommended permanent custody. R.C. 2151.414(D)(1)(b).
The trial court further found that the children have not been in the
custody of a public children services agency or private child placement agency under
one or more separate orders of disposition for 12 or more months of a consecutive
22-month period. R.C. 2151.414(D)(1)(c). Journal entry Nos. 0913175575 and
0913175557, p. 3 (Feb. 18, 2020). In addition, the trial court determined that the
children could not be placed with Mother and required a legally secure placement
that could be accomplished without a grant of permanent custody.
R.C. 2151.414(D)(1)(d).
The trial court found that the children are not Native American for
purposes of ICWA. In addition, the trial court approved the permanency plan for
permanent custody and adoption and rejected the concurrent plan for reunification.
The trial court also held that R.C. 2151.414(E)(1), (2), and (4) factors
apply. “[T]he parent has failed to remedy the problems that initially caused the
child[ren] to be placed outside the home.” R.C. 2151.414(E)(1). “[T]he parent has
failed continuously and repeatedly to substantially remedy the conditions causing
the child[ren] to be placed outside the child[ren]’s home.” Id. See Journal entry
Nos. 0913175575 and 0913175557, p. 3 (Feb. 18, 2020).
The trial court also found that Mother’s “chronic mental illness,
intellectual disability, physical disability, or chemical dependency” “is so severe that
it makes the parent unable to provide an adequate permanent home for the
child[ren] at the present time and, as anticipated, within one year.”
R.C. 2151.414(E)(2). See Journal entry Nos. 0913175575 and 0913175557, p. 3
(Feb. 18, 2020).
In support of R.C. 2151.414(E)(4), the trial court determined that
Mother
has demonstrated a lack of commitment toward the child[ren] by
failing to regularly, support, visit, or communicate with the child[ren]
when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for the child[ren].
Journal entry Nos. 0913175575 and 0913175557, p. 3 (Feb. 18, 2020).
After a thorough review of the record, we agree with the trial court’s
conclusion that the allegations of the motion are supported by clear and convincing
evidence and that permanent custody is in the best interest of the children.
Mother’s fourth assignment of error is overruled.
IV. Conclusion
The trial court’s judgment is 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.
____
ANITA LASTER MAYS, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
MICHELLE J. SHEEHAN, J., CONCUR