In re J.H.

[Cite as In re J.H., 2017-Ohio-7070.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105078
IN RE: J.H.
Minor Child
[Appeal By L.H., Father]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 14911147
BEFORE: E.A. Gallagher, P.J., Boyle, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 3, 2017
ATTORNEY FOR APPELLANT
Judith M. Kowalski
333 Babbitt Road, Suite 323
Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115
MOTHER
L.W., pro se
2496 Morris Black Place, Apt. F
Cleveland, Ohio 44104
GUARDIAN AD LITEM FOR J.H.
Cynthia M. Morgan
2968 Meadowbrook Blvd.
Cleveland Heights, Ohio 44118
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant L.H. (“the father”) appeals from the decision of the
Juvenile Division of the Cuyahoga County Court of Common Pleas (the “juvenile court”)
granting permanent custody of his son, J.H., to the Cuyahoga County Department of
Children and Family Services (“CCDCFS” or “the agency”). For the following reasons,
we affirm the judgment of the juvenile court.
Factual and Procedural Background
{¶2} J.H. was born on August 24, 2014. Five days later, CCDCFS filed a
complaint for dependency and temporary custody. The complaint alleged that J.H. was
dependent because the child’s mother, L.W. (“the mother”), had a substance abuse
problem and an untreated mental health condition, was homeless and had six other
children who were not in her care due to her substance abuse. The complaint further
alleged that the father had failed to establish paternity and had failed to support, visit or
communicate with J.H. since his birth. CCDCFS requested that J.H. be placed in the
temporary custody of his maternal grandmother and also filed a motion for
predispositional temporary custody, requesting that J.H.’s maternal grandmother be
granted predispositional temporary custody of J.H.
{¶3} An emergency custody hearing was held on September 19, 2014. The
juvenile court granted CCDCFS’ motion for predispositional temporary custody and
appointed J.H.’s maternal grandmother as his temporary custodian. On September 30,
2014, CCDCFS filed a case plan that required the mother to complete a drug and alcohol
assessment and psychological evaluation, successfully complete any recommended drug
and alcohol treatment and aftercare, undergo random drug screens, engage in any
recommended mental health services and submit her DNA for paternity testing. The case
plan required the father to establish paternity.
{¶4} At the adjudicatory hearing on November 4, 2014, the mother and father
stipulated to the allegations of an amended complaint1 and J.H. was adjudicated to be
dependent. On November 7, 2014, the father filed a motion for legal custody of J.H.
The father asserted that he was “ready, willing, and able to take legal custody” of J.H.,
that he had resolved the concerns alleged by CCDCFS in the complaint, that he was in the
process of establishing paternity and was an appropriate caregiver who could meet J.H.’s
basic needs.
1
Specifically, the father and the mother stipulated:
1. Mother has a history of substance abuse and is currently enrolled in substance
abuse treatment. Mother has previously been referred for multiple drug treatment
programs.
2. Mother is diagnosed with depression and is in need of ongoing mental health
services in order to provide adequate care for the child.
***
4. Mother has six other children that are not in her care due to her substance abuse.
Three of the children are in the care of the maternal grandmother. One child is in the
legal custody of a family friend. CCDCFS obtained permanent custody of two other
children. * * *
5. Alleged father * * * is in the process of establishing paternity. Alleged father has
visited the child. * * *
{¶5} A dispositional hearing was held on January 16, 2015. On January 20, 2015,
CCDCFS filed an amended case plan based on the parents’ completion of paternity
testing, which established that L.H. was the father of J.H. No additional requirements or
services were added to the case plan. On February 9, 2015, the court approved the case
plan and J.H. was committed to the temporary custody of his maternal grandmother.
{¶6} On July 21, 2015, CCDCFS filed a motion to extend temporary custody six
months until February 29, 2016. CCDCFS also requested that the court issue findings of
facts that continued placement was in the best interest of J.H. and that CCDCFS had
made reasonable efforts to finalize a permanency plan for J.H. The agency
acknowledged that progress had been made on the case plan since the order granting
temporary custody but indicated that because all of the case plan objectives had not yet
been completed, the risk to J.H. had not been sufficiently reduced. The agency asserted
that it would seek to reunify J.H. with his mother following the six-month extension if she
achieved the remaining objectives of the case plan; otherwise, it would pursue a new,
permanent home for the child.
{¶7} At the September 22, 2015 hearing on the motion to extend temporary
custody, after discussing the mother’s level of engagement with case plan services, the
magistrate raised the issue of what was being done with respect to the father. The
CCDCFS social worker then assigned to the case indicated that the father had
“complete[d] a drug screen when asked” and that it was negative “[s]o we had no reason
to ask him again.” The magistrate further inquired about the agent’s efforts to reunify
J.H. with his father as follows:
THE COURT: So what are we doing about why the child’s not with the
father?
[CCDCFS SOCIAL WORKER]: We’ve discussed that.
THE COURT: If he has nothing else on his case plan to do.
[CCDCFS SOCIAL WORKER]: Right. We’ve discussed that in an SAR
and the reason being is that dad and mom live together and dad works
second shift.
THE COURT: Okay.
[CCDCFS SOCIAL WORKER]: And there [were] no arrangements for
child care.
THE COURT: Okay.
{¶8} Prior to the hearing, the GAL submitted a report in which she indicated that
J.H. was “successfully residing with his maternal grandmother,” was being “well cared
for” and was seeing his parents regularly while in placement. She recommended that
temporary custody be continued because “neither parent has sufficiently participated with
case plan services to be able to appropriately parent their toddler son.” She made a
similar recommendation at the hearing to “giv[e] mom more time.” The parents agreed
to the extension of temporary custody and the juvenile court granted the motion. The
court indicated that although “[t]here has been significant progress on the case plan by the
mother and by the father and progress has been made in alleviating the cause for the
removal of the child from the home,” extension of temporary custody was “necessary and
in the child’s best interest.” The juvenile court further found that the agency had made
reasonable efforts to finalize the permanency plan of reunification for J.H. by offering
drug treatment and mental health services.
{¶9} On February 5, 2016, CCDCFS filed a motion to modify the order granting
temporary custody to the maternal grandmother to an order granting permanent custody of
J.H. to CCDCFS (“motion for permanent custody”). As grounds for its motion, the
agency asserted that J.H. could not or should not be placed with either parent within a
reasonable time, citing R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E), and that permanent
custody was in the best interest of J.H. under R.C. 2151.414(D)(1). In support of the
motion, the agency submitted an affidavit from CCDCFS social worker, Barbara
Solomon, in which she stated that the mother had failed to complete substance abuse
treatment, had failed to consistently provide drug screens and that her parental rights had
been terminated as to six other children. With respect to the father, Solomon indicated
that he had established paternity and completed drug screening, but did not have
“separate, suitable housing to provide for the care of the child.” An evidentiary hearing
on the motion was scheduled for June 6, 2016.
{¶10} On March 28, 2016, the GAL submitted an updated report reflecting a
recent visit she had had with the father in which he advised her that he “intends to find
housing with his aunt” and no longer reside with the mother. In her report, the GAL
indicated that the father was employed, had provided negative urine screens consistently,
had no need for substance abuse treatment or psychological services and had established
paternity. The GAL further indicated that both parents “attend consistent visitation with
their son * * * minimally every other week” at the residence of his daycare provider “so
bonding and attachment to parents is continuing.” Based on these facts, the GAL
recommended that J.H. “continue in Temporary Custody, pending the filing of [an]
Amended Motion to Modify Temporary Custody to Maternal Grandmother to a Motion
for Permanent Custody to CCDCFS, or in the alternative [an] Amended Motion to
Modify Temporary Custody to Legal Custody to Father if [a] new residence not located
with the mother is able to take place, as father will have met all of his case plan
requirements and this will be in the best interests of my ward.”
{¶11} On May 27, 2016, the father filed a second motion for legal custody and
CCDCFS moved for a continuance of the June 6, 2016 hearing on the ground that both
the social worker who had been assigned to the case and her supervisor were no longer
employed by CCDCFS. The juvenile court granted the motion for continuance and the
hearing was continued to August 17, 2016.
{¶12} Before the hearing commenced, CCDCFS advised the court that it (1) had
recently learned that the father was allegedly no longer residing with the mother and had
moved in with the paternal grandmother and (2) had received a report from the mother
that the father had assaulted her. The agency requested a continuance to complete a
home visit of the father’s new residence and to investigate the mother’s domestic violence
allegations. The GAL joined in the agency’s motion for a continuance. The father
indicated that he had no objection to a continuance and the mother offered “no opinion”
as to the request for continuance. The juvenile court denied the motion and proceeded
with the hearing on CCDCFS’ motion for permanent custody and the father’s motion for
legal custody.
Testimony by social workers
{¶13} At the hearing, CCDCFS presented testimony from two of the three social
workers who had worked on the case — Barbara Solomon, the social worker who had
been assigned to the case from January 2016 until May 2016, and Shauntaya Howard, the
social worker assigned to the case beginning on May 27, 2016.
{¶14} The social workers established that four of the mother’s seven children,
including J.H., resided with the maternal grandmother and that CCDCFS had been
awarded permanent custody of two of those children in 2010 and 2013. The social
workers further established that the mother had been diagnosed with a major depressive
disorder and cannabis dependency and that the mother’s case plan required her to engage
in mental health and substance abuse treatment and services. Solomon testified that,
initially, the mother received mental health and substance abuse services through the
Women’s Recovery Center but was released in March 2015 for noncompliance with
treatment requirements. Solomon stated that the mother then enrolled in another
substance abuse treatment and mental health program at Connections and completed an
intensive outpatient program in December 2015. Solomon testified that when she took
over the case in January 2016, the mother was doing well with the program but that her
attendance then began “falling off.”
{¶15} Howard offered similar testimony. She testified that the records received
from Connections indicated that the mother’s compliance with required case plan services
was “kind of sporadic” and showed that, in 2016, the mother had failed to attend
numerous scheduled substance abuse sessions and psychotherapy appointments.
{¶16} The social workers testified that the mother was also inconsistent in
providing requested drug screens. Solomon tested that the mother’s drug screens in May
and June 2015 were positive for marijuana and that a September 2015 drug screen was
positive for PCP. Although the mother’s urine screens in February and March 2016 were
negative, Howard testified that the mother failed to appear for a urine screen in July 2016
and repeatedly refused to provide hair samples for drug testing. The results of a urine
screen the mother provided in August 2016 were pending at the time of the hearing.
{¶17} With respect to the father, the social workers testified that J.H. was the
father’s only child and that the father had promptly established paternity of J.H. as
required under the case plan. The social workers indicated that the father was employed,
had no criminal record and no substance abuse or mental health issues but that he had
never established stable housing. As such, Solomon stated that she did not believe the
father could meet J.H.’s basic needs. Howard indicated that “other investigations” would
need to be done before the father could be considered a suitable caregiver for J.H.
{¶18} Solomon testified that shortly after she took over the case in February 2016,
she asked the father whether he would be interested in gaining custody of J.H. She
indicated that he responded, “absolutely not” because “he didn’t want to break his family
apart and * * * take his son away from his mother.”
{¶19} Two months later, after the mother’s progress with the case plan declined,
Solomon and the father spoke again. Solomon testified that the father told her that he
had changed his mind and wanted custody of J.H. According to Solomon, the father told
her that he knew the mother was not engaged in her case plan services, that he was
planning on leaving the mother and moving in with an aunt who would allow him and
J.H. to live with her and that he wanted to gain custody of J.H. because J.H. was his only
son. Solomon testified that she asked the father to undergo another urine screen, to
submit a hair sample for drug testing and to provide the aunt’s name and address so she
could schedule a home visit and determine whether the aunt’s home would be
appropriate. Solomon stated that the father completed the urine screen, which was
negative. However, he refused to submit the hair sample and never provided the aunt’s
contact information. Solomon testified that she called the father “maybe a couple weeks
later” in an attempt to follow up but was unable to reach him.
{¶20} Howard testified that she first spoke with the father approximately a week
before the hearing, after she realized that he had filed a motion for legal custody.
Howard testified that she had not attempted to contact the father sooner because, in
speaking with the prior social workers who had handled the case, the father was not
considered to be a suitable caregiver for J.H. She indicated that the father was not
considered to be a suitable caregiver because he was still in a relationship with the mother
and was unwilling to leave her and the mother’s continued substance abuse and failure
to comply with mental health services was “a barrier” in the case.
{¶21} Howard indicated that when she spoke with the father a week before the
hearing, he informed her that he was now living with his mother, J.H.’s paternal
grandmother, and that he had filed the motion for legal custody because “he wants his
son.” Howard testified that they discussed the father’s relationship with the mother and
that the father said “he understands that now he needs to stay away from mom.” When
asked about the mother’s recent domestic violence allegations, the father denied them,
claiming that he just “took her some food because she was hungry.” Howard and the
father also discussed his job and income. According to the father, he had been employed
at the same company for three years and was able to provide for J.H. Howard told the
father that before he could be considered for custody, he would need to submit to a urine
screen and provide a hair sample for drug testing and the agency would need to conduct a
home visit. Howard testified that she did not independently verify the father’s
employment or income at that time but that she expected to see a paystub or other
documentation of his employment and income during the home visit.
{¶22} According to Howard, the father said he would appear for a urine screen and
provide a hair sample the next day, but failed to do so. Howard testified that they also
made arrangements for Howard to conduct a home visit the following Monday. Howard
testified that, on Monday morning, she appeared at the address she was given and
knocked on the door but no one answered. Howard stated that she did not immediately
contact the father regarding the missed appointment because she did not have his number
with her. Instead, when Howard returned to the office, she spoke with her supervisor.
According to Howard, once she determined that the father had not completed the urine
screen, her supervisor told her to “hold off” on any further communications with the
father due to the upcoming permanent custody hearing.
{¶23} With respect to the father’s relationship with J.H., Solomon testified that
she did not know whether there was a bond between the father and J.H. because she had
never the seen the father interact with J.H. Solomon testified that the father was not
present during her monthly home visits with the maternal grandmother or when she
visited J.H. at the daycare facility he attended. Solomon indicated that the maternal
grandmother told her that she took J.H. to visit the mother about once a month and that,
according to the maternal grandmother, the father was present for some of these visits, but
that she had no information regarding how often the father was there.
{¶24} Howard testified that she was aware that the father saw J.H. when J.H.
visited with his paternal grandmother but that she had never personally observed the
father interact with J.H. The social workers testified that J.H. visited his paternal
grandmother on a regular basis and that she and the maternal grandmother had a “good
relationship.” Solomon testified that she had asked for the paternal grandmother’s
contact information but was informed that the paternal grandmother did not want to get
involved. There were no reports of any harm to J.H. while he was in the care of his
paternal grandmother.
{¶25} With respect to permanency plan for J.H., the social workers stated that the
maternal grandmother had informed them that she wanted to adopt J.H. and was willing
to maintain “connections with [his] paternal grandmother and dad and different things of
that nature” if the agency were to be granted permanent custody of J.H.
Recommendations of GAL
{¶26} The juvenile court also considered the recommendations of the GAL. On
the date of the hearing, the GAL filed an updated report in which she recommended that
the maternal grandmother be granted legal custody of J.H. or, alternatively, that
permanent custody be granted to CCDCFS and J.H. placed with his maternal
grandmother. Specifically, with respect to the father, the GAL indicated in her report:
GAL attempted to spend time at residence of Mr. Harris, who was going to
be housed with his aunt, who owns her residence. Father, however,
continues to resides [sic] with mother * * *. Father is employed part-time,
has provided negative urine screens consistently, has had no treatment
ordered through CCDCFS, has no need of psychological services, has
established paternity. [Father] has no criminal background and no family
history of mental illness. Father inconsistently visits with his son[.]
{¶27} The GAL further noted that J.H. was “successfully residing” with his
material grandmother, “on target physically” and “being well cared for in placement.”
Whereas in prior reports, the GAL had indicated that parents regularly visited with J.H.
and acknowledged continuing bonding and attachment between J.H. and his parents, the
GAL now indicated that J.H. “sees his parents irregularly while at placement, so bonding
and attachment to parents is tenuous.”
{¶28} The GAL also made a statement at the hearing and was cross-examined by
counsel for the father.
{¶29} At the hearing, the GAL stated that it was “with deep regret” that she was
not recommending that legal custody be awarded to the father. She noted that the father
was employed with income ranging between $700 and $1000 per month and that he had
complied with the agency’s requests for random urine screens — all of which were
negative. She indicated, however, that, until recently, the father’s position had been that
he wanted J.H. to be reunited with the mother — i.e., saying to the GAL, “I want mom to
get better and then we’re all going to be a family” — and that he had never demonstrated
that he had secured suitable housing for himself and J.H. She acknowledged that there
was a point at which she had recommended that legal custody be awarded to the father,
but that given that J.H. had now been living with his maternal grandmother for nearly two
years, “the dependency of the two is too much.” She, therefore, recommended that
permanent custody of J.H. be awarded to CCDCFS so that he could be adopted by his
maternal grandmother.
{¶30} When asked whether she had any concerns regarding the father’s ability to
parent J.H., the GAL replied that she was not sure whether he had appropriate housing
and that, although the father himself had never tested positive for substance abuse, the
fact that he continued to remain with someone who was a drug abuser was, in her view,
cause for concern. She also questioned whether a mental health assessment was
warranted but acknowledged that she had never requested that such an assessment be
included as part of the father’s case plan. The GAL stated that she had last spoken with
the father in April 2016 and had not attempted to contact the father since that time. She
had not received any information indicating that the father had moved from the mother’s
home and now resided with his mother, but indicated that the father had had two years to
“remove himself [from the mother] and do all the things that the Agency was asking him
to do” and that given that J.H. had spent the past two years living with his half-siblings in
a stable environment, “it’s just too little too late.’”
{¶31} Neither the mother nor the father testified or offered any witnesses or other
evidence at the hearing. However, the mother advised the court that she was “not in
favor of legal custody to the father.”
Ruling on motion for permanent custody
{¶32} On September 21, 2016, the juvenile court denied the father’s motion for
legal custody and granted the agency’s motion for permanent custody, terminating the
parental rights of both parents and awarding permanent custody of J.H. to CCDCFS.
The juvenile court found “by clear and convincing evidence” that J.H. had been removed
from the mother’s custody on September 23, 2014 and had been out of the parents’
custody continuously since that time, that J.H. could not be placed with the parents within
a reasonable time or should not be placed with the parents and that it was in J.H.’s best
interest to grant permanent custody to the agency. Specifically, with respect to the
father, the juvenile court found:
The father has not remedied the conditions causing removal.
The current social worker made an appointment to see where the father
lives, but when she showed up, no one answered the door. The father
made no effort to contact the current social worker. The father was asked
to provide a urine screen and a hair sample for drug testing on the Thursday
before the trial date and he failed to show up for this testing.
The father has moved in with his mother, the child’s paternal grandmother.
In order for the child to be reunified with the father, the paternal
grandmother would have to be fingerprinted. The paternal grandmother
had no contact with the former social worker, Ms. Solomon, because she
did not want to be formally involved.
Ms. Solomon testified that when she talked to the father in February 2016,
he did not want custody. He wanted the mother to have custody. In April
2016, 18 months after the child was removed and with the permanent
custody [motion] pending, the father said he did want custody and that he
was moving in with an aunt. The social worker asked for the aunt’s
address but the father never gave it to her.
Ms. Solomon tried to contact the father with no success and he made no
other efforts to contact her. The father refused to provide a hair sample in
April 2016 when she requested it. The father cannot meet the basic needs
of the child. His employment has never been verified and he has had no
independent housing over the course of this case.
{¶33} The juvenile court further found that CCDCFS had made reasonable efforts
to prevent placement and/or to make it possible for the child to remain in or return to the
home and to finalize the permanency plan for the child with a permanency goal of
adoption.
{¶34} The father appealed,2 raising the following four assignments of error for
review:
First Assignment of Error: The juvenile court abused its discretion in
determining that clear and convincing evidence supported its decision to
award permanent custody to the Cuyahoga County Department of Children
and Family Services.
2
The mother also appealed the juvenile court’s award of permanent custody to CCDCFS.
In In re J.H., 8th Dist. Cuyahoga No. 105055, 2017-Ohio-940, this court dismissed the mother’s
appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and
Loc.App.R. 16(C), concluding that there was no merit to the appeal and that “[t]he record as a whole
clearly and convincingly demonstrates that J.H. cannot be placed with either parent, and it is in the
best interest of J.H. to grant permanent custody to the agency.”
Second Assignment of Error: The decision to award permanent custody
was against the manifest weight of the evidence.
Third Assignment of Error: The trial court abused its discretion in finding
the award of permanent custody was in the best interests of the child.
Fourth Assignment of Error: When the trial court is required to make a
determination that a public service agency made reasonable efforts to
reunify children with their family, the trial court erred by ruling in favor of
permanent custody when the record shows a failure to provide diligent case
planning.
{¶35} The father’s assignments of error are interrelated and will be addressed
together where appropriate.
Law and Analysis
{¶36} 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).
{¶37} Because 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, it is “an alternative [of] last resort.” 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).
Standard for terminating parental rights and awarding permanent custody to
CCDCFS
{¶38} Before a juvenile court can terminate parental rights and grant permanent
custody of a child to CCDCFS, it must apply the two-prong test set forth in R.C.
2151.414. First, the juvenile court must find by clear and convincing evidence that one
of the 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.
{¶39} Second, the juvenile court must find by clear and convincing evidence that
granting permanent custody to the agency is in the best interest of the child. R.C.
2151.414(B)(1). In this case, the record reflects that both prongs of the test have been
satisfied.
Determination that J.H. could not be placed with the father within a
reasonable time or should not be placed with him
{¶40} In his first and second assignments of error, the father argues that the
juvenile court’s determination under R.C. 2151.414(B)(1)(a) and (E) that J.H. could not
be placed with the father within a reasonable time or should not be placed with him is not
supported by clear and convincing evidence and is against the manifest weight of the
evidence.3
{¶41} “Clear and convincing evidence” is that measure or degree of proof that is
more than a “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 M.S.,
2015-Ohio-1028, at ¶ 8. It “produces in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.” Id.3
The juvenile court also explicitly found that J.H. “was removed from the
mother’s custody on September 23, 2014 and has been out of the custody of the
parents continuously since then.” The record reflects that temporary custody was
awarded to the maternal grandmother on September 23, 2014, and that she
maintained temporary custody of J.H. continuously through the hearing date.
CCDCFS asserts that “[t]his set of facts alone is sufficient to satisfy the first prong
of the permanent custody statute” under R.C. 2151.414(B)(1)(d), “leaving only the
best interest finding to be decided.” However, a review of CCDCFS’ permanent
custody motion shows that CCDCFS did not move for permanent custody based on
R.C. 2151.414(B)(1)(d). With respect to the first prong of the permanent custody
test, it asserted only that “the condition listed at R.C. 2151.414(B)(1)(a) exists and
that one or more of the factors listed in R.C. 2151.414(E) apply to the parent of the
child at issue.” Because the evidence supports the juvenile court’s determination
under R.C. 2151.414(B)(1)(a), we need not decide, under the facts and circumstances
here, whether the juvenile court could have also properly granted permanent
custody to CCDCFS based on R.C. 2151.414(B)(1)(d). See, e.g., In re B.P., 3d Dist.
Marion No. 9-16-57, 2017-Ohio-2919, ¶ 16 (“‘[t]he factors contained within R.C.
2151.414(B)(1)(a)-(e) are alternative findings, and only one must be met in order for
the first prong of the permanent custody test to be satisfied”), quoting In re S.G.,
9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 11.
{¶42} In determining whether a juvenile court based its decision on clear and
convincing evidence, 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). 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 A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶
16.
{¶43} R.C. 2151.414(E) lists factors for determining whether a child cannot be
placed with either parent within a reasonable period of time or should not be placed with
his or her parents. If the court determines, by clear and convincing evidence, that one or
more of the factors listed exist as to each of the child’s parents, R.C. 2151.414(E) directs
that “the court shall enter a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent.”
{¶44} In this case, as it relates to the father, the juvenile court found that the
factors set forth in R.C. 2151.414(E)(1) and (4) applied. As the juvenile court explained:
Pursuant to R.C. 2151.414(E), the Court finds the child cannot be placed
with either parent within a reasonable period of time or should not be
placed with the parents because one or more of the following exist:
(1) Following the placement of the child outside the child’s 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 parents have failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the home.
(4) The parents have shown a lack of commitment toward the child.
{¶45} The father contends that these findings under were not supported by clear
and convincing evidence because (1) the father is employed, has housing and completed
the only requirement in his case plan by establishing paternity, (2) all of the father’s
requested drug screens were negative, (3) the agency and the GAL “did almost no
investigation of the father,” including failing to verify his employment and waiting until
“almost the 11th hour to schedule a home visit” and (4) the two social workers who
testified observed no interaction between the father and J.H. and could not state whether
he and J.H. were bonded. He also contends that the juvenile court’s permanent custody
decision should be reversed on manifest weight grounds because the “credibility of the
state’s witnesses” was “at best questionable.” We disagree.
{¶46} Simply because a parent complies with the requirements of his or her case
plan does not mean that the parent has sufficiently remedied the conditions that caused
the child to be removed from the parent’s custody:
“A parent can successfully complete the terms of a case plan yet not
substantially remedy the conditions that caused the children to be removed
— the case plan is simply a means to a goal, but not the goal itself. Hence,
the courts have held that the successful completion of case plan
requirements does not preclude a grant of permanent custody to a social
services agency.”
In re J.H., 8th Dist. Cuyahoga No. 105073, 2017-Ohio-1564, ¶ 41, quoting In re C.C.,
187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.).
{¶47} As the social workers explained, this case was unique in that the father
advised the agency early on that “he didn’t want to break his family apart and * * * take
his son away from his mother,” i.e., that he did not want custody of his son separate and
apart from the mother. The GAL offered similar testimony. Rather than independently
seeking to establish himself as a suitable caregiver for J.H., the father chose — heedless
of the consequences his decision would have on his child and his relationship with his
child — to bind his fate with that of J.H.’s mother. It was, therefore, the mother’s
substance abuse and mental health issues — and not any issues independently involving
the father — that presented the primary “barrier” that needed to be remedied before J.H.
could be reunified with his parents. The father does not dispute that the mother failed to
substantially remedy the substance abuse and mental health issues that caused J.H. to be
removed from his parents’ custody. The father lived with the mother and knew what she
was doing and not doing, including that she was not complying with the requirements of
the case plan.
{¶48} The record reflects that, once he established paternity, the father took no
steps to pursue custody in his own right until the spring of 2016 — after J.H. had been
living with his maternal grandmother and his two half-siblings for more than 18 months.
In April 2016, the father advised the social worker that he was leaving the mother and
wanted to gain custody of his child. However, he failed to take the steps necessary to
enable the agency and the GAL to investigate his circumstances and determine whether
he would be an appropriate caregiver for J.H.
{¶49} The social workers testified that although the father provided urine screens
in 2015 and 2016 that were negative, he refused to provide a hair sample for drug testing.
Further, although the father indicated in April 2016 that he was living with an aunt, he
never provided her name and address to the agency so that a home visit could be
conducted. When shortly before the hearing on the motion for permanent custody, the
father advised Howard that he had established a permanent residence with his mother,
J.H.’s paternal grandmother, he once again failed to provide the information the agency
requested so that it could determine whether J.H. could be properly placed with him.
Although the agency did not give the father much lead time — both the updated drug
testing and home visit were requested days before the hearing on the motion for
permanent custody — there is nothing in the record to indicate that the father objected to
the timing of these requests. To the contrary, Howard testified that the father had agreed
to (1) provide a urine screen and hair sample for drug testing the Friday before the
hearing and (2) be available for a home visit of the paternal grandmother’s residence the
Monday before the hearing. The father nevertheless inexplicably failed to comply with
the agency’s requests as agreed. When the agency and GAL requested a continuance of
the hearing date to complete these tasks and further investigate the father as a suitable
caregiver, the father did not join in the motion; he indicated only that he had no objection
to a continuance.
{¶50} The father argues that the agency “tacitly acknowledged” that it lacked
sufficient evidence to support its request for permanent custody when it moved for a
continuance on the morning of the hearing. However, simply because the agency sought
a continuance to investigate new information it had received regarding the father does not
mean the evidence, as presented, did not clearly and convincingly support the juvenile
court’s findings. Following a thorough review of the record, we conclude that the
juvenile court’s determination that J.H. could not be returned to his father within a
reasonable time or should not be returned to his father under R.C. 2151.414(B)(1)(a) and
R.C. 2151.414(E) was supported by clear and convincing evidence and was not against
the manifest weight of the evidence. The father’s first and second assignments of error
are overruled.
Determination that permanent custody was in the best interest of the child
{¶51} In his third assignment of error, the father challenges the juvenile court’s
determination that granting permanent custody to CCDCFS is in the best interest of J.H.
The father argues that a “legally secure placement” for J.H. “could have been found with
[him]” because he had been employed at the same job for three years and had established
a permanent residence with his mother, J.H.’s paternal grandmother, with whom J.H. had
a good relationship. He further argues that because the agency was “focused on the
mother” and was “ignoring the father,” CCDCFS failed to “support its claim that the best
interests of the child are served by severing all parental rights.”
{¶52} In determining whether permanent custody is in the best interest of the child,
the juvenile court consider 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, 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;
(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).
{¶53} The juvenile court has considerable discretion in weighing these factors.
See In re J.B., 2013-Ohio-1704, at ¶ 97 (“[T]he discretion that a trial court has in custody
matters should be accorded the utmost respect, given the nature of the proceeding and the
impact the court’s determination will have on the lives of the parties concerned.”). The
best interest determination focuses on the child, not the parent. In re N.B.,
2015-Ohio-314, at ¶ 59. Although the juvenile court is required to consider each factor
listed in R.C. 2151.414(D)(1), no one factor is given greater weight than the others
pursuant to the statute. In re T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶
23, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
Further, only one of the enumerated factors needs to be resolved in favor of an award of
permanent custody. In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-Ohio-3818, ¶ 17; In
re N.B. at ¶ 53.
{¶54} The juvenile court’s September 21, 2016 journal entry reflects that it
considered all of the relevant factors under R.C. 2151.414(D)(1) in determining that an
award of permanent custody to the agency was in the best interest of J.H. The juvenile
court explained its evaluation of these factors as follows:
The Court finds the factors of (D)(1) weigh in favor of permanent custody.
This child is living with the maternal grandmother who has both physical
and temporary legal custody. The maternal grandmother wants to adopt the
child. The paternal grandmother helps and supports the maternal
grandmother on an informal basis. This child is living with his siblings.
The GAL for the child recommends permanent custody as being in the
child’s best interest. The GAL was cross-examined and stated under oath
that her recommendation is based on the length of time the child has been in
custody. The father knew how the mother was doing because he lived with
her and his failure to pursue custody to himself eighteen months or two
years after the removal is too late. The best interest of the child must drive
the case, not the case plan. See 2151.414(C) which states that in making
the determinations required by this section * * * a Court shall not consider
the effect the granting of permanent custody would have on any parent of
the child.
{¶55} The record supports the juvenile court’s findings. As the testimony of the
social workers and GAL established, at the time of the hearing, J.H. was nearly two years
old. Virtually his entire life had been spent in the care and custody of his maternal
grandmother. The award of permanent custody to the agency would allow the maternal
grandmother to adopt J.H. and would allow him to stay in a familiar, stable, secure
environment where he had been living as a family unit with his maternal grandmother and
two of his adopted half-siblings, receiving appropriate care and thriving since shortly
after his birth.
{¶56} Although the father’s counsel asserted at the hearing that the father had
been living with his mother, J.H.’s paternal grandmother, for the last seven weeks, the
father did not offer any evidence in support of that assertion at the hearing. Nor did the
father offer any evidence establishing that the paternal grandmother’s residence was a
place he and J.H. could reside permanently. Further, although the social workers
testified that the paternal grandmother had been a regular presence in J.H.’s life, assisting
the maternal grandmother with babysitting and providing diapers and clothing for J.H.,
there was no evidence that she was willing to have J.H. reside with her on a permanent
basis. Solomon testified that when she attempted to reach out to the paternal
grandmother, she was informed that the paternal grandmother did not want to get
involved.
{¶57} Every parental rights termination case involves the difficult balance between
maintaining a natural parent-child relationship and protecting the best interests of a child.
Although “[f]amily unity and blood relationship are vital factors to carefully and fully
consider,” we also recognize that the paramount consideration is always the best interest
of the child. In re J.B., 2013-Ohio-1704, at ¶ 111. “[A] child’s best interests require
permanency and a safe and secure environment.” In re E.W., 8th Dist. Cuyahoga Nos.
100473 and 100474, 2014-Ohio-2534, ¶ 29.
{¶58} On the facts and evidence before us, we cannot say that the juvenile court
erred in determining that an award of permanent custody to the agency was in J.H.’s best
interest. There is sufficient competent, credible evidence in the record to support the
juvenile court’s determination. Accordingly, we overrule the father’s third assignment of
error.
Reasonable efforts to reunify father and child
{¶59} In his fourth assignment of error, the father challenges the juvenile court’s
finding that CCDCFS made reasonable efforts to reunify him with J.H. Citing R.C.
2151.414(E) and 2151.419, the father argues that the agency failed to provide “diligent
case planning” to facilitate J.H.’s return to him and that the agency could have found a
less restrictive placement for J.H. by amending the family’s case plan and working with
the father, verifying his employment, observing the father with J.H. and conducting a
home visit.
{¶60} In In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, the
Ohio Supreme Court explained that even though R.C. 2151.419, “by its terms,” does not
apply to motions for permanent custody, the agency “must still make reasonable efforts to
reunify the family during the child-custody proceedings prior to the termination of
parental rights.” Id. at ¶ 43; see also In re J.H., 2017-Ohio-1564, at ¶ 21. “If the agency
has not established that reasonable efforts have been made prior to the hearing on a
motion for permanent custody, then it must demonstrate such efforts at that time.” In re
C.F. at ¶ 43. Further, where, as here, the juvenile court relies on R.C. 2151.414(E)(1) to
support an award of permanent custody to the agency, the court must examine the
“reasonable case planning and diligent efforts by the agency to assist the parents” when
considering whether the child cannot be placed with the parents within a reasonable time
or should not be placed with the parents. See id.; R.C. 2151.414(E)(1).
{¶61} In this case, the record supports the juvenile court’s determination that
CCDCFS made reasonable efforts to reunify the family and engaged in “reasonable case
planning” and “diligent efforts” to assist the parents in remedying the problems that
caused J.H. to be taken from them. CCDCFS filed an initial case plan on September 30,
2014. It filed an amended case plan on January 20, 2015, after paternity had been
established. Throughout the case, the juvenile court regularly reviewed the case planning
services being offered by the agency and considered whether the agency was making
reasonable efforts to reunify J.H. with his parents. At the September 2015 hearing on
the motion for permanent custody, the magistrate made specific inquiries “about why the
child’s not with his father” given that he “had nothing else on his case plan he needs to
do” and the juvenile court’s journal entries dated October 20, 2015, March 4, 2016 and
April 15, 2016, all include express determinations that the agency was making reasonable
efforts to reunify J.H. with his parents, specifying exactly what was being done to achieve
that goal. At no point did the father challenge these findings or object to the case plan or
the services the agency was offering him. Although, as discussed above, virtually all the
agency’s efforts initially focused on the mother, the record supports the conclusion that
this was not unreasonable and was not attributable to a lack of “diligent case planning”
given that the father had informed the agency that he did not want custody of J.H.
separate and apart from the mother and it was the mother’s substance abuse and mental
health issues that precluded J.H. from being returned to his parents. The record reflects
that when the father advised the agency that he changed his mind and wanted to pursue
custody of his son, the agency took reasonable steps to further investigate the father’s
circumstances but that the father failed to cooperate with that investigation.
{¶62} The father’s contention that CCDCFS failed to provide “diligent case
planning” or otherwise failed to make reasonable efforts to reunify him with J.H. is
without merit. The father’s fourth assignment of error is overruled.
{¶63} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas, 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 A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR