In re T.M.

[Cite as In re T.M., 2016-Ohio-4964.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103899
IN RE: T.M.
A Minor Child
[Appeal By T.M., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 15906440
BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEY FOR APPELLANT
Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Tamara M. Reeves
Assistant Prosecuting Attorney
Cuyahoga Jobs and Family Services
8111 Quincy Avenue
Cleveland, Ohio 44104
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Appellant-mother (“mother”), appeals from the judgment of the Cuyahoga
County Common Pleas Court, Juvenile Division, granting permanent custody of her
minor child, T.M., to appellee, the Cuyahoga County Department of Children and Family
Services (“CCDCFS”). For the reasons that follow, we affirm.
{¶2} In October 2013, mother pleaded guilty to drug possession and was sentenced
to two years of community control sanctions. In June 2014, after testing positive for
PCP, her community control was revoked and she was ordered to serve nine months in
prison. At the time of the revocation, mother was pregnant; on November 10, 2014, she
gave birth to T.M. while incarcerated.
{¶3} On November 13, 2014, the juvenile court issued an emergency custody
order that placed T.M. in the predispositional temporary custody of CCDCFS. T.M. was
placed in the same foster home as her younger twin sisters, who were previously removed
from mother’s care in 2013 when the twins were born at 24 weeks.
{¶4} In July 2015, the trial court held an adjudication hearing where mother was
present. Mother admitted to the allegations in the amended complaint and the trial court
adjudicated T.M. a dependent child.
{¶5} On November 13, 2015, the trial court held a joint dispositional hearing for
T.M. and her twin sisters. Following the hearing, the trial court granted permanent
custody of all three children to CCDCFS and terminated the parental rights of both
mother and father.
{¶6} Mother appeals, raising three assignments of error challenging only the
permanent custody disposition of T.M.1
Consolidation
{¶7} In her first assignment of error, mother contends that the trial court erred in
consolidating all of the cases and interchanging evidence between cases to arrive at a
determination of permanent custody. She claims she was denied due process of law.
{¶8} First, we note that the record does not indicate that the cases were ordered
consolidated pursuant to Civ.R. 42. Each case retained its own case number and case
name. The record reflects that the court held a joint disposition hearing for all three
children. No objection was raised regarding the court considering these cases together
prior to the court conducting the hearing.
{¶9} In the event that the cases were implicitly consolidated, we find no abuse of
discretion by the trial court. Just as there is no juvenile rule that specifically allows
consolidation, there is no juvenile rule that prohibits such consolidation. Civ.R. 42(A)(1)
provides that “if actions before the court involve a common question of law or fact, the
court may, (a) join for hearing or trial any and all matters at issue in the actions; (b)
consolidate the actions; or (c) issue any other orders to avoid unnecessary cost or delay.”
{¶10} As the Ohio Supreme Court noted,
[T]he thrust of Civ. R. 42(A) is to vest discretion in the Court of Common
Pleas to determine whether consolidation of cases is to be permitted where
Father is not a party to this appeal. Therefore, no facts will be discussed regarding father’s
1
participation, or lack thereof, in his case plan or with the children.
the circumstances specified in the rule exists. The purpose of the rule is to
avoid unnecessary costs or delay in the interests of judicial efficiency. * * *
The management of cases lies within the discretion of the court, and not
with the parties so long as the rights of the parties are adequately protected.
(Quotes omitted). Dir. of Highways v. Kleines, 38 Ohio St. 2d 317, 319-320, 313 N.E.2d
370 (1974); Garrett v. Cook, 8th Dist. Cuyahoga Nos. 40879 and 40880, 1980 Ohio App.
LEXIS 11413, *6-7 (Apr. 17, 1980).
{¶11} In this case, the court had before it three cases where the children, all sisters,
were each adjudicated dependent and placed in the emergency custody and temporary
custody of CCDCFS. The parties to the cases were the same. Mother was the
biological mother of all three children, and the alleged father of T.M. was the established
father of the twins. Furthermore, the children resided with the same foster mother for
over a year, the guardian ad litem for the children was the same, and the social worker
assigned to mother and father’s case plan was the same. Accordingly, all cases had
interrelated factual situations and thus common questions of fact.
{¶12} Moreover, in these cases, the court was making a determination of
permanently terminating parental rights of both mother and father, and making the
determination of whether permanent custody should be granted to CCDCFS. Therefore,
the court also had common questions of law. Accordingly, because the trial court had to
determine common questions of law and fact, the court did not abuse its discretion by
considering the cases together for disposition.
{¶13} Furthermore, mother was not denied due process of law. She received
notice of the disposition hearing. She was represented by counsel who had an
opportunity to cross-examine the agency’s witnesses and call witnesses on her behalf.
No objection was raised regarding the consideration of the cases together for the
disposition, and the hearing transcript does not indicate any element of surprise indicating
that mother was unaware that the hearings would occur together.
{¶14} Finally, we note that, unlike on appeal where mother is only appealing the
trial court’s determination of permanent custody of T.M., mother was opposing the grant
of permanent custody for all three children. Therefore, the trial court was looking at all
the facts and circumstances in deciding whether mother would be able to care for three
infants, including two with severe medical issues and needs. The court could not
piecemeal the testimony when mother was opposing all three requests for permanent
custody.
{¶15} Accordingly, we find that the trial court did not abuse its discretion in
hearing the cases together at the disposition hearing. Mother’s first assignment of error
is overruled.
Manifest Weight of the Evidence
{¶16} In her second assignment of error, mother contends that the trial court’s
finding for permanent custody was against the manifest weight of the evidence.
{¶17} When reviewing a trial court’s judgment in child custody cases, the
appropriate standard of review is whether the trial court abused its discretion. Masters v.
Masters, 69 Ohio St. 3d 83, 85, 630 N.E.2d 665 (1994). An abuse of discretion is more
than an error of law or judgment; it 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). “When reviewing the trial court’s custody decision, an appellate
court must make ‘every reasonable presumption in favor of the lower court’s judgment
and finding of facts.’” In re M.S., 8th Dist. Cuyahoga No. 101693, 2015-Ohio-1028, ¶ 6,
quoting In re Brodbeck, 97 Ohio App. 3d 652, 659, 647 N.E.2d 240 (3d Dist.1994).
{¶18} Termination of parental rights is an alternative of last resort but is
sanctioned when necessary for the welfare of a child. In re Wise, 96 Ohio App. 3d 619,
624, 645 N.E.2d 812 (9th Dist.1994). Before a juvenile court may terminate parental
rights and award permanent custody of a child, it must find by clear and convincing
evidence that (1) the grant of permanent custody 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 twelve or more months of a
consecutive twenty-two month period. R.C. 2151.414(B)(1).
{¶19} “Clear and convincing” evidence is more than a mere “preponderance of the
evidence,” but does not rise to the level of certainty required by the “beyond a reasonable
doubt” standard in criminal cases. In re Awkal, 95 Ohio App. 3d 309, 315, 642 N.E.2d
424 (8th Dist.1994), citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St. 3d
176, 180-181, 512 N.E.2d 979 (1987). It produces in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be established. Id. Where clear and
convincing evidence 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 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); In re Starkey, 150 Ohio App. 3d
612, 2002-Ohio-6892, 782 N.E.2d 665, ¶ 16 (7th Dist.).
{¶20} In this case, the trial court determined that the second prong of R.C.
2151.414(B)(1) was satisfied because T.M. could not be placed with either parent within
a reasonable period of time or should not be placed with her parents. R.C.
2151.414(B)(1)(a). When making this determination, the court must consider the factors
contained in R.C. 2151.414(E). The existence of any one of these factors is sufficient to
determine that a child cannot be placed with a parent within a reasonable period of time.
In re C.C., 187 Ohio App. 3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 10 (8th Dist.), citing
In re William S., 75 Ohio St. 3d 95, 661 N.E.2d 738 (1996).
{¶21} Upon review of the trial court’s journal entry and findings of fact, we glean
that the court determined factors (1) and (4) of R.C. 2151.414(E) were applicable. These
factors apply equally to the twins and T.M.
{¶22} Under R.C. 2151.414(E)(1), the court must consider whether, despite
“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 failed continuously and repeatedly to substantially remedy the conditions causing
the child to be placed outside their home.” Additionally, under R.C. 2151.414(E)(4), the
court must consider whether the “parent has demonstrated a lack of commitment toward
the child by * * * other actions showing an unwillingness to provide an adequate
permanent home for the child.”
{¶23} In this case, the trial court found that mother had completed some mental
health counseling prior to being incarcerated; however, she did not re-engage in any
mental health counseling once released from prison. Furthermore, mother only recently
provided documentation to the agency that she was being treated by her primary care
physician for anxiety. She did not provide any documentation that she was linked to a
mental health provider or that she was taking medication for her diagnosis of
schizoeffective disorder.
{¶24} The court concluded that mother has housing. However, her residence was
found to have insufficient space for any additional children. The testimony provided that
mother has a three bedroom home, with two bedrooms occupied by her two older sons.
Specific to T.M., there was not enough space to add a crib.
{¶25} Regarding mother’s substance abuse history, the court noted that mother’s
relapse in May 2014 indicated that mother may have engaged in substance abuse while
pregnant with T.M. This was an important factor to consider because despite mother’s
completion of an intensive outpatient program through the ORCA House after being
released from prison, mother refused to engage in any follow-up counseling.
Additionally, the evidence showed that although mother would submit to drug tests, she
would not submit when requested, but only once a month or every other visit with T.M.
{¶26} Accordingly, there was clear and convincing evidence supporting the trial
court’s determination that T.M. cannot be placed with either parent within a reasonable
period of time or should not be placed with the parents — satisfying the second prong of
R.C. 2151.414(B)(1).
{¶27} Having made this determination, the trial court was then required under the
first prong of R.C. 2151.414(B)(1) to make a finding that permanent custody was in
T.M.’s best interest under the factors set forth in R.C. 2151.414(D)(1)-(5).
{¶28} When considering the best interest of a child in a permanent custody
hearing, the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant
factors, including, but not limited to: (a) the interaction and interrelationship of the child
with the child’s parents, siblings, relatives, foster parents, 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; (c) the custodial history of the child; (d) the
child’s need for a legally secured permanent placement and whether that type of
placement can be achieved without a grant of permanent custody to the agency; and (e)
whether any of the factors in R.C. 2151.414(E)(7) to (11) apply in relation to the parents
and child. Although a trial court is required to consider each of the R.C. 2151.414(D)(1)
factors in making its permanent custody determination, “[o]nly one of these factors needs
to be resolved in favor of the award of permanent custody.” In re A.B., 8th Dist.
Cuyahoga No. 99836, 2013-Ohio-3818, ¶ 17.
{¶29} In this case, the evidence before the juvenile court clearly and convincingly
demonstrated that upon consideration of the R.C. 2151.414(D)(1) factors, awarding
permanent custody to CCDCFS was in T.M.’s best interest. First, with respect to the
child’s relationship with her mother, siblings, and foster mother, testimony was provided
that mother visits with T.M. biweekly and the visits were appropriate. However,
Deborah Carr, CCDCFS social worker supervisor, testified that the bond between T.M.,
her sisters, and their foster mother is significant. Since birth, T.M. has been living with
her sisters and with the same foster mother, who has been her sole caregiver and provider.
{¶30} T.M.’s foster mother testified that T.M. is adjusting well, and all three
sisters care for and “love on” each other, and they miss each other when separated. She
further stated that T.M. does not have special needs, but noted that because she was born
about a month premature, there is a little delay in her milestones, like crawling and
standing. She stated that T.M. is on average where she should be and is progressing
well.
{¶31} Regarding the wishes of the child, the guardian ad litem for all three
children recommended that the court grant permanent custody. She was most concerned
that mother had not requested any visits beyond the scheduled time, including overnight
visits. She was also concerned about the probation violation related to the use of PCP.
{¶32} Carr testified that CCDCFS was seeking permanent custody because T.M.
was receiving proper care with foster mother. Carr still had concerns that mother had not
substantially addressed her mental health issues, or engaged in aftercare services for
substance abuse treatment. She found this important because mother had previously
relapsed after receiving treatment, and mother was not consistent in submitting to urine
screens.
{¶33} Finally, the evidence demonstrated that mother’s current living situation is
not conducive for additional children in the household. Carr testified that there was not
enough room for another crib or bed because mother’s two older sons live with her.
{¶34} Upon review of the record, we find that the trial court weighed all relevant
factors and made a decision in the best interest of T.M. This court finds clear and
convincing evidence supporting the trial court’s decision. Accordingly, the trial court
did not abuse its discretion in granting permanent custody of T.M. to CCDCFS.
Appellant’s second assignment of error is overruled.
Effective Assistance of Counsel
{¶35} In her third assignment of error, mother contends that the proceedings were
fatally flawed by mother’s ineffective assistance of counsel. Specifically, mother argues
that her counsel was ineffective for failing to object to the trial court consolidating the
two cases.
{¶36} To establish ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance fell below an objective standard of reasonable representation
and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St. 3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674. (1984). Prejudice is established when the defendant
demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland at 694.
{¶37} Having found that consolidation or joint consideration of the cases was
appropriate and that the trial court did not abuse its discretion in hearing the cases
together for disposition, we find that counsel was not ineffective for failing to object.
{¶38} Moreover, even if T.M.’s case was considered separately, there is not a
reasonable probability that the result would have been different. Mother’s household
could not even accommodate one additional bed or crib, she did not re-engage in mental
health care and counseling, and she did not seek any aftercare for substance treatment
after completing a 30-day program. These factors were a constant with all of mother’s
children. Therefore, whether the cases were considered separately or together, the result
would have been the same; mother’s repeated failure to remedy her own situation was the
cause of the grant of permanent custody. Accordingly, the assignment of error is
overruled.
{¶39} 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.
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
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR