In re C.C.

[Cite as In re C.C., 2011-Ohio-3357.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: C. C. C.A. No. 25835
M. C.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 08-09-736
DN 09-07-555
DECISION AND JOURNAL ENTRY
Dated: July 6, 2011
WHITMORE, Judge.
{¶1} Appellant, Jawanda C. (“Mother”), appeals from a judgment of the Summit
County Court of Common Pleas, Juvenile Division, that terminated her parental rights to two of
her minor children and placed them in the permanent custody of Summit County Children
Services Board (“CSB”). This Court affirms.
I
{¶2} Mother is the natural mother of four children, who ranged in age from two months
to twelve years at the time of the permanent custody hearing. Although Mother did not have
custody of any of her children, only the middle two were at issue in this case because her oldest
child was in the legal custody of her maternal grandmother and the youngest child was born after
CSB filed the motion for permanent custody. This appeal involves the termination of Mother’s
parental rights to C.C., born October 17, 2005, and M.C., born May 2, 2009.
2
{¶3} Mother has a history of involvement with CSB dating back to 2000. Mother and
the maternal grandmother had repeatedly accused each other of abusing and/or neglecting
Mother’s oldest child, J.C. Mother relied on the maternal grandmother and other relatives to
help care for J.C., and sometimes left her with the grandmother for months at a time while she
lived elsewhere. Despite Mother’s allegations about the grandmother, she continued to leave
J.C. in her care and eventually placed J.C. in the grandmother’s legal custody because the child
had behavioral problems and Mother could not handle her.
{¶4} Although Mother also left her younger child, C.C., with the grandmother for
temporary periods of time, she maintained legal custody of him until September 2008, when she
asked CSB to take him. Mother was homeless, suffering from mental health problems, and could
not meet the child’s basic needs. She had attempted suicide five months earlier and, although
she had been hospitalized and received mental health treatment at that time, she had not
continued with treatment. Consequently, on September 5, 2008, CSB filed a complaint, alleging
that C.C. was a dependent child. With the advice of counsel, Mother agreed to allow C.C. to
remain in CSB custody and later stipulated to an adjudication that that C.C. was a dependent
child.
{¶5} M.C. was born May 2, 2009. CSB did not immediately file a dependency
complaint because Mother and M.C. were living in suitable locations and Mother was meeting
the child’s basic needs. Two months after M.C. was born, however, Mother moved in with
M.C.’s father, who had serious mental health problems and a history of violence toward Mother.
CSB filed a dependency complaint, and M.C. was removed from Mother’s custody. M.C. was
later adjudicated a dependent child.
3
{¶6} During the first year of this case, Mother made little progress on the reunification
goals of the case plan. She lived in eight different locations during that time, and often lived
with people who posed a risk to her or her children. Although Mother initially told her
caseworker that her mental health issues were not a priority for her, she later obtained a mental
health assessment and engaged in counseling. She eventually obtained suitable, independent
housing and stable employment. Consequently, at the end of January 2010, the trial court
returned both children to Mother’s custody under an order of protective supervision.
{¶7} For the next few months, CSB believed that Mother was providing a suitable
home for her children. Unbeknownst to the agency, however, Mother was leaving the children
with inappropriate caregivers while she went to work. She first enlisted the help of the maternal
grandmother, who also suffers from mental health problems and with whom Mother had a
relationship that her counselor described as unstable and unhealthy. According to Mother, the
grandmother had a short temper and frequently had been verbally and physically abusive to her,
her sister, and her children. Despite the grandmother’s temper and abusive tendencies, Mother
continued to rely on her to care for her children. Mother briefly stopped relying on the
grandmother for child care after the she allegedly slapped eight-month-old M.C. because she was
crying. Less than two months later, however, Mother was allowing the grandmother to babysit
the children again.
{¶8} More significantly, unbeknownst to CSB, Mother started dating a man named
Rafael in February 2010 and allowed him to watch her children while she was at work. On May
22, 2010, Mother left both children in Rafael’s care during her eight-hour work shift. When she
returned home, M.C. was unresponsive, so she called 911. M.C. was transported to Akron
Children’s Hospital, where doctors determined that she had sustained a brain bleed and retinal
4
hemorrhaging that day and that she had sustained similar injuries approximately seven to ten
days earlier. An investigation revealed that M.C. had been violently shaken and that Rafael was
the perpetrator of the abuse. Both children were removed from Mother’s care and returned to the
temporary custody of CSB.
{¶9} For the next several months, Mother refused to believe that Rafael had harmed
M.C. She was pregnant with Rafael’s child and continued her relationship with him.
Eventually, Mother told her caseworker that she accepted that Rafael had abused M.C. and that
she had ended her relationship with him because she needed to protect her children. After her
youngest child was born in December 2010, however, Mother asked a friend to invite Rafael to
visit the baby at the hospital, even though she knew that his visit was in violation of a no contact
order. She even let him hold the baby because “it’s his daughter.” The caseworker expressed
disappointment that Mother had not learned from her recent months of counseling that she
needed to keep Rafael away from her children.
{¶10} Before the birth of Mother’s youngest child, CSB moved for permanent custody
of C.C. and M.C. Following a hearing on the motion, the trial court found that C.C. had been in
the temporary custody of CSB for more than 12 of the 22 months prior to hearing, that Mother’s
chronic mental illness was so severe that it prevented her from providing a suitable home for
M.C., and that permanent custody was in the best interests of both children. Mother appeals and
raises three assignments of error, which will be consolidated and rearranged for ease of
discussion.
5
II
Assignment of Error Number Two
“THE DECISION OF THE TRIAL COURT TO GRANT PERMANENT
CUSTODY TO [CSB] WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶11} Mother argues that the trial court’s permanent custody decision was against the
manifest weight of the evidence. We disagree.
{¶12} Before a juvenile court may terminate parental rights and award to a proper
moving agency permanent custody of a child, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the
temporary custody of the agency for at least 12 months of the prior 22 months, or that the child
cannot be placed with either parent within a reasonable time or should not be placed with either
parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent custody to
the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D). See
R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re William S. (1996), 75 Ohio St.3d 95,
99.
{¶13} The trial court found that the first prong of the test was satisfied for C.C. because
he had been in the temporary custody of CSB for at least 12 of the prior 22 months. Mother does
not contest that finding. M.C. had not been in the temporary custody of CSB for twelve months
when CSB filed its motion. The trial court found that the evidence satisfied the first prong of the
test to terminate Mother’s parental rights to M.C. because Mother had a chronic mental illness
that was so severe that it prevented her from providing M.C. an adequate permanent home at that
time or within the following year. See R.C. 2151.414(E)(2). The evidence before the trial court
supported that finding.
6
{¶14} Mother had been diagnosed with borderline personality disorder, which her
counselor described as chronic, enduring, and incurable. Her behavior exhibited many of the
characteristic symptoms of the disorder, according to the psychologist who diagnosed her and
another psychologist who counseled her. The psychologist who counseled her testified at the
hearing that Mother’s borderline personality disorder was characterized by her history of suicidal
behavior, unstable relationships, impulsivity, and inability to regulate her emotions.
{¶15} In addition to her suicide attempt shortly before this case began, Mother had
attempted suicide on two prior occasions. Although she received mental health treatment after
each suicide attempt, she had not continued with the ongoing mental health treatment that she
needed. Instead, she had seen several different counselors for brief periods for over a decade. At
the time of the permanent custody hearing, Mother had engaged in only nine sessions with her
current counselor. The counselor testified that she would need to continue to see Mother on a
weekly basis and that her progress in counseling had been only “adequate.”
{¶16} The psychologist who diagnosed Mother explained that she could not provide a
suitable home for her children unless and until she learned through counseling how to improve
her judgment and coping skills. Despite months of counseling, however, Mother had made little
progress toward those goals. Her behavior continued to demonstrate that she had made little
progress toward resolving her pattern of using poor judgment by engaging in unstable
relationships and placing her children at risk by exposing them to inappropriate people. M.C.
was twice removed from her care due to her failure to make appropriate decisions about whom
she exposed her children to.
{¶17} Mother continued to rely on the maternal grandmother to help care for her
children, despite the fact that they had a relationship that was admittedly strained and
7
dysfunctional. The grandmother had been diagnosed with major depressive disorder with
psychotic features and, according to Mother, she had a volatile temper. Mother told the
caseworker and her counselor that she did not have a good relationship with the grandmother
because she had physically and verbally abused both Mother and her sister when they were
children. Despite Mother’s allegations about the grandmother, Mother lived in her home with
her oldest two children at one time and frequently left the children with her for months at a time.
She later allowed the grandmother to take legal custody of her oldest child, although she believed
that the child was unhappy there. Even after the grandmother allegedly smacked eight-month-
old M.C. because she was crying, Mother allowed the grandmother to babysit her two young
children. At the time of the permanent custody hearing, the grandmother was expressing interest
in taking legal custody of the children. It was unclear whether Mother supported that placement,
as some witnesses said she did, but Mother’s testimony on that topic was ambivalent.
{¶18} In addition to her poor choice to leave her children in the care of the maternal
grandmother, Mother admitted that she had allowed her children to have close and repeated
contact with two violent men, the father of M.C. and Rafael, the father of her youngest child.
The father of M.C. was violent with Mother, but she lived with him with M.C. until CSB
removed the child from the home. Mother apparently continued living with M.C.’s father until
he threatened to kill her. She later allowed Rafael, whom she barely knew, to care for the
children. He violently shook M.C. on at least two occasions, causing bruising of the child’s body
and bleeding on the brain.
{¶19} CSB had serious concerns about Mother’s ability to protect her children from
harm because she continued to exhibit poor insight and judgment. After months of counseling,
Mother demonstrated her lack of progress by continuing her relationship with Rafael and inviting
8
him to visit and hold her newborn infant at the hospital, just one month before the permanent
custody hearing. Although Mother testified that she would not put any man ahead of her
children, her behavior continued to demonstrate otherwise.
{¶20} Mother had engaged in counseling to address her mental illness again and again
over the years, but her behavior demonstrated that she continued to lack the insight into making
appropriate decisions about how to protect her children. Mother had repeatedly exposed M.C. to
the risk of serious harm, and the child had actually suffered serious harm due to Mother’s poor
insight. It was apparent from her own testimony that she did not grasp the significance of the
risky choices she had made. The evidence before the trial court demonstrated that, due to her
chronic mental illness, Mother was unable to provide a safe home for M.C. at that time or within
the coming year.
{¶21} Mother also challenges the trial court’s finding that permanent custody was in the
best interests of the children. When determining whether a grant of permanent custody is in the
children’s best interests, the juvenile court must consider the following factors:
“(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[.]” R.C. 2151.414(D)(1)(a)-(d).1
1
The factor set forth in R.C. 2151.414(D)(1) (e) is not relevant in this case.
9
{¶22} Mother’s interaction with her children was limited throughout most of this case to
supervised visits at the visitation center. The caseworker testified that, although Mother
regularly attended visits during the early part of the case, her attendance later became a problem.
Mother told the caseworker that she did not want to visit the children at the visitation center, so
she did not attend visits regularly and eventually stopped coming. At the time of the hearing,
Mother had not seen her children for approximately three months.
{¶23} When the caseworker contacted Mother about missing visits, Mother told her that
as long as she could speak to the children on the phone (one of whom was less than two years
old), that was good enough for her. The guardian ad litem also noted that, although Mother
sometimes had medical reasons for missing visits with her children, she had made little effort to
regularly attend visits and repeatedly asked CSB to relocate the visits to a location that was more
convenient for her.
{¶24} Although C.C. had expressed to others that he did not want to return to Mother’s
home, because he was only five years old at the time of the hearing and M.C. was less than two,
the guardian ad litem spoke on behalf of both children. He opined that permanent custody to
CSB would be in the best interests of both children. He emphasized that, although Mother
appeared to love them, she lacked the ability to care for them without assistance from others and
she had repeatedly exposed them to serious risks of harm by selecting inappropriate caregivers
for them.
{¶25} At the time of the hearing, both children had been in the temporary custody of
CSB for most of their young lives. When the children did live with Mother, she repeatedly left
them in the care of inappropriate caregivers. M.C. had sustained serious injuries after twice
being abused by Rafael. She was also allegedly smacked by the maternal grandmother simply
10
because she was crying. Despite Mother’s acknowledgement that both Rafael and the
grandmother had put her children at risk of harm, she continued to allow them to be around her
children.
{¶26} Both children had been in and out of Mother’s home and were in need of a legally
secure permanent placement. Although CSB had considered the maternal grandmother as a
potential placement for the children, it concluded that she was not a suitable placement for these
young children, especially M.C. who had special needs following the trauma to her brain. The
grandmother took psychiatric medication that made her very sleepy and was already providing
fulltime care for Mother’s oldest child and her own sister, both of whom had special needs.
There were also allegations by Mother that the grandmother had a history of using inappropriate
physical and verbal discipline. CSB had found no other relatives who were able to take custody
of the children and Mother was not able to do so. Consequently, the trial court reasonably
concluded that a legally secure placement could only be achieved by placing the children in the
permanent custody of CSB.
{¶27} There was ample evidence before the trial court to support its conclusions that
C.C. had been in the temporary custody of CSB for more than 12 of the prior 22 months, that
Mother’s chronic mental illness prevented her from providing an adequate home for M.C., and
that permanent custody was in the best interests of both children. Mother’s second assignment of
error is overruled.
Assignment of Error Number One
“THE TRIAL COURT ERRED WHEN IT FAILED TO APPOINT A
PSYCHOLOGICAL EXPERT, AT STATE EXPENSE, FOR INDIGENT
MOTHER TO AID IN THE PREPARATION OF HER DEFENSE, WHEN HER
MENTAL HEALTH WAS CRUCIAL TO THE TERMINATION OF HER
PARENTAL RIGHTS. THIS FAILURE VIOLATED MOTHER’S
CONSTITUTIONAL RIGHT TO DUE PROCESS.”
11
Assignment of Error Number Three
“MOTHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
VIOLATING HER RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION
10, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶28} Mother’s first and third assignments of error will be addressed together because
they are closely related. Through her first assignment of error, Mother maintains that, because
CSB based part of its case against Mother on her chronic mental health problems, and the trial
court ultimately based its permanent custody decision regarding M.C. on her mental health
issues, the trial court should have appointed her an independent psychological expert to assist her
in preparing a defense. She concedes that she never requested the appointment of an
independent expert, and she does not argue plain error. As CBS correctly notes, Mother cites no
authority for her apparent argument that the trial court was required to appoint her an
independent psychological expert, despite her failure to request that it do so. Moreover, there is
nothing in the record to indicate that Mother or anyone else disagreed with the diagnosis of the
State’s expert, which was based in large part on Mother’s self-report and her prior history of
suicidal behavior and mental health treatment. This Court is not willing to hold that the trial
court had an obligation to sua sponte appoint an independent psychological expert under the facts
of this case, particularly given that there is nothing in the record to suggest that the outcome of
this case would have been any different if the court had appointed an independent expert for
Mother.
{¶29} In a related argument in her third assignment of error, Mother asserts that her trial
counsel was ineffective for stipulating to the admission of Mother’s parenting evaluation, which
was prepared by an expert who was not present to testify, and by failing to request that an
independent psychological expert be appointed on her behalf. To establish a claim of ineffective
12
assistance of counsel, Mother must demonstrate that her trial counsel’s performance was
deficient and that the deficient performance prejudiced her case. Strickland v. Washington
(1984), 466 U.S. 668, 687. A “deficient performance” is one that fell below an objective
standard of reasonableness. Id. at 687-88. To establish prejudice, Mother must show that there
is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have
been different. Id. at 694.
{¶30} To establish prejudice regarding the admission of the parenting evaluation,
Mother must demonstrate a reasonable probability that the trial court would have reached a
different conclusion about her chronic mental illness without the admission of the report.
Further, she must demonstrate that an independent expert would have disagreed with the
diagnosis in the expert report, testified favorably on her behalf, and, as a result, the trial court
would have concluded that R.C. 2151.414(E)(2) had not been demonstrated by the evidence.
See In re Ohler, 4th Dist. No. 04CA8, 2005-Ohio-1583, at ¶28. Mother has not made such a
demonstration on appeal.
{¶31} In fact, there was ample evidence aside from the parenting evaluation to
demonstrate that Mother had been properly diagnosed with borderline personality disorder. To
begin with, Mother seemed to accept that her diagnosis was correct, as she testified that she had
been diagnosed with borderline personality disorder and that she had been working with her
counselor to specifically target the behavioral symptoms of that disorder. Mother’s counselor,
who also has a Ph.D. in psychology and testified at the hearing, explained how Mother’s
behavior over the course of her lifetime, as reported to her by Mother, was entirely consistent
with the diagnosis of borderline personality disorder. As explained in detail already, the
evidence about Mother’s behavior throughout the hearing further supported the diagnosis of the
13
expert who prepared the parenting evaluation. Consequently, Mother has failed to demonstrate
that she was prejudiced by her trial counsel stipulating to the admission of the parenting
evaluation or by failing to request the appointment of an independent psychological expert.
Mother’s first and third assignments of error are overruled.
III
{¶32} Mother’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
14
CARR, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
MADELINE LEPIDI-CARINO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.