In re E.W.

[Cite as In re E.W., 2014-Ohio-2534.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100473 and 100474
IN RE: E.W. and M.W.
Minor Children
[Appeal By A.L., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 11917562 and AD 11917563
BEFORE: Kilbane, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: June 12, 2014
ATTORNEY FOR APPELLANT/MOTHER
Betty C. Farley
17316 Dorchester Drive
Cleveland, Ohio 44119
ATTORNEY FOR APPELLEE/C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
Amy L. Carson
Assistant County Prosecutor
C.C.D.C.F.S.
8111 Quincy Avenue
Cleveland, Ohio 44104
MARY EILEEN KILBANE, J.:
{¶1} Appellant-mother, A.L., appeals from the order of the juvenile court that
denied a family member’s motion for legal custody of the children and awarded
permanent custody to the Cuyahoga Department of Children and Family Services
(“CCDCFS”).
{¶2} Having reviewed the trial court record, transcripts, and relevant case law,
we affirm.
{¶3} On October 4, 2011, following the receipt of information on the KIDS
telephone hotline, CCDCFS social worker, Cassandra Jones (“Jones”), went to A.L’s
home and found her to be intoxicated and unable to pick up her children, E.W. (d.o.b.
8-18-06) and M.W. (d.o.b. 8-12-07), who were at school. The social worker assisted her
with picking up the children and scheduled an emergency staffing.
{¶4} On or about October 5, 2011, an emergency staffing was held in the matter.
However, A.L.’s mother and the children’s maternal aunt, Z.A., walked out of the
staffing. No suitable relatives were available to care for the children, and CCDCFS
obtained an ex-parte telephonic order removing the children from the home in accordance
with R.C. 2151.31(A)(3). Also on October 5, 2011, CCDCFS filed a complaint for
neglect and temporary custody, alleging that
1. On October 4, 2011, the social worker went to the mother’s home
and found her under the influence of drugs and alcohol. The mother
was so intoxicated that the social worker had to assist her in walking
to the school to pick up her daughter.
2. Mother has a severe substance abuse problem, specifically
marijuana, alcohol, and PCP, that prevents her from providing
appropriate care to her children.
3. The mother has been unable to maintain stable housing.
4. Mother has had 3 other children removed from her care and placed in
legal custody of relatives due to her substance abuse problem. (See
AD 00901894-95 & AD 05900890).
5. The father of the children does not support or visit with his children.
6. The father has an extensive criminal history and is currently
incarcerated on charges of grand theft. He is scheduled to be
released on April 30, 2012. (See CR-10-544234-A).
{¶5} The children were committed to the emergency custody of CCDCFS on
October 6, 2011, and were placed in foster care. At a hearing on December 21, 2011, the
allegations were amended to provide that the social worker found A.L. to be intoxicated
on October 4, 2011, she is in need of substance abuse treatment, and three of her other
children are in the legal custody of other family members. A.L. admitted the amended
allegations of neglect. The components of A.L.’s case plan for reunification were also
read into the record, including that she obtain chemical dependency assessment and
treatment and a mental health evaluation.
{¶6} On December 22, 2011, the trial court concluded as follows:
The Court finds that the CCDCFS has made reasonable efforts to prevent
placement. Father is incarcerated. Mother has received mental health and
substance abuse evaluation. Mother is currently in an intensive out-patient
treatment program. Mother attends AA meetings. Mother has random
urine screens. Mother’s last urine screen was positive for marijuana.
***
The Court finds that [the children’s] continued residence in or return to the
home would be contrary to [their] best interests and welfare.
The Magistrate finds that [the children] cannot be placed with relatives for
the following reasons:
No relatives are willing and able to provide substitute care.
The children were placed in the temporary custody of the CCDCFS.
{¶7} On January 10, 2012, the court appointed a guardian ad litem (“GAL”) for
the children. A.L.’s family subsequently approached T.G. to become the children’s
foster mother. The family considered T.G. to be a close family member, although not a
blood relative. T.G. agreed to do so and completed the requirements to become a kinship
care provider. On June 7, 2012, the CCDCFS placed the children with T.G. as a kinship
caregiver. On September 5, 2012, the GAL submitted a report stating that the children
were happy and healthy in the placement with T.G., and recommended that this placement
could become permanent if A.L. did not complete her case plan services. The GAL also
urged the court to extend the order of temporary custody because A.L. was in substance
abuse treatment and working on her case plan. On October 9, 2012, the trial court held a
review of the matter and extended the order of temporary custody.
{¶8} On January 17, 2013, CCDCFS filed a motion to modify the temporary
custody award to permanent custody. CCDCFS asserted that A.L. has failed to obtain
and maintain sobriety, is not consistent in obtaining treatment for her depression, has no
income, relies on family for housing, and lacks the ability to provide for the basic needs
of the children. CCDCFS also asserted that the father lacks stable and appropriate
housing, has no source of income, and fails to visit consistently with his children. On
March 12, 2013, the GAL submitted a report recommending continuing the order of
temporary custody and that the children undergo counseling.
{¶9} On August 12, 2013, A.L. filed a motion for the trial court to award legal
custody of the children to Z.A., asserting that she is a suitable relative who is ready,
willing, and able to care for the children and it would be in their best interest for her to do
so. This motion was filed 22 months after Z.A. walked out of the staffing, and 14
months after T.G. became a kinship care provider at the request of A.L.’s family. A.L.
maintained that Z.A. signed a statement of understanding acknowledging the
responsibilities of legal custody and is prepared to undertake them, she has safe and
appropriate housing, and is able to provide for the children. The matter proceeded to
hearing before a judge on August 19, 2013.
{¶10} For its evidence, CCDCFS presented the testimony of social worker Kina
Crowder (“Crowder”) who testified that A.L.’s mother and Z.A. attended the emergency
staffing but walked out as issues were being discussed. The children were then placed in
emergency custody with foster parents. The trial court outlined the terms of the case
plan at the adjudication hearing. The father, who was incarcerated, was offered various
services through a jail liaison with additional services upon his release. Ultimately,
however, he did not obtain stable housing, did not consistently visit the children, and did
not complete his case plan requirements.
{¶11} Crowder further testified that A.L. has three other children but is not raising
any of them. The case plan required her to obtain stable housing, address her mental
health needs, and obtain treatment for her drug and alcohol dependency. According to
Crowder, in September 2012, A.L. started to address her case plan services, and
therefore, CCDCFS asked the trial court to extend the order of temporary custody.
Ultimately, however, she did not attend treatment as required, failed to appear for some
random drug screens, and continued to test positive for drug use. She was no longer in
treatment as of the date of the hearing. In addition, she does not consistently keep her
weekly visitation schedule.
{¶12} Crowder next stated that A.L. asked if the children could be placed with
T.G. who is a relative (but not related by blood) and a certified foster care provider. T.G.
completed the kinship caregiver approval process and the children were placed with her
on June 7, 2012. According to Crowder, the children have special needs, are acting out,
and they are in counseling. They have some struggles at school and both have been
diagnosed with post-traumatic stress disorder. Their behavior has improved significantly
while with T.G., and they have bonded with her. T.G. initially supervised A.L.’s
visitation with the children, but by February 2013, A.L.’s visitation became inconsistent,
and the visits were moved to CCDCFS. A.L. stopped visiting with the children in June
2013, but resumed visitation again in August 2013.
{¶13} Crowder additionally testified that Z.A. has also asked for legal custody of
the children; however, during the emergency staffing, she walked out as issues were
being discussed. Z.A. expressed an interest in legal custody again in April 2013, but she
did not follow through with meeting the various requirements until June 2013. In
addition, at the inspection conducted on April 16, 2013, Crowder determined that Z.A.’s
house could not accommodate the children because she had no beds for them, no fire
extinguisher, no smoke alarms, and no posted emergency information.
{¶14} T.G. testified that she grew up with A.L.’s family, and they are cousins but
not related by blood. T.G. testified that Z.A. asked her to take custody of the children so
that they would not have to stay in foster care. T.G. testified that she agreed and became
a licensed kinship care provider for the children on June 7, 2012. Following that
placement, T.G. supervised A.L.’s visits, but stopped because she did not want to monitor
A.L.’s behavior during the visits. At that point, visitation was moved to CCDCFS. T.G.
denied telling A.L. and Z.A. that they are forbidden from visiting the children, and if she
is permitted to adopt them, she will allow them to have continued contact with their
family. T.G. also testified that A.L. recently bought them school uniforms and also
bought them toys for their birthdays. However, the father does not visit or provide
support for the children. With regard to Z.A.’s care of the children, T.G. stated that she
is concerned about who might be watching them because there is a lot of activity at her
home.
{¶15} Z.A. testified that she has five children and lives in a two-bedroom
apartment. She is employed full time by University Hospital. She asked Crowder about
obtaining legal custody of the children and was informed that she would have to be
fingerprinted. She acknowledged that she delayed doing so, but she stated that Crowder
told her that required paperwork had not yet been completed. The required home study
was completed on August 16, 2013. Z.A. acknowledged that she had not visited the
children since February 2013, but she explained that her work schedule interfered with
her attempts to visit. If awarded legal custody, she would arrange for appropriate
childcare.
{¶16} Lawrence Glenn (“Glenn”), a social worker with the Juvenile Division of
the Cuyahoga County Public Defender’s Office, testified that he conducted an inspection
of Z.A.’s house on August 16, 2013. Proceeding from a standard checklist that examines
safety concerns, financial status, utility service, and proof of residency. He then advised
her to obtain beds for the children, smoke detectors, and outlet plugs.
{¶17} In an order dated August 23, 2013, the trial court awarded permanent
custody of the children to CCDCFS. The court noted that they had been in the temporary
custody of CCDCFS for more than 12 months, the GAL recommended that the CCDCFS
be awarded permanent custody, and there is clear and convincing evidence that the
children cannot be placed with their parents within a reasonable time. The court also
found:
Mother has a chemical dependency that is so severe that it makes the
mother unable to provide an adequate permanent home for the child at the
present time, and as anticipated, within one year * * *.
Mother has had parental rights terminated involuntarily with respect to a
sibling of the child.[1]
A maternal Aunt was proposed as a legal custodian. This proposed
1Although
the record indicates that three of A.L.’s children are in the legal
custody of other family members, there is no basis in the record from which to
conclude that she has lost permanent custody of them. Therefore, we interpret this
statement to mean that A.L.’s parental rights have been terminated as to both E.W.
and M.W.
custodian has no beds, no fire extinguishers, no smoke detectors, no posted
escape plan and no posted emergency phone numbers. The home is not
suitable for the child.
{¶18} Appellant assigns three errors for our review:
The CCDCFS failed to show by clear and convincing evidence that
permanent custody is in the minor children’s best interests.
The CCDCFS failed to comply with R.C. 2151.412(G) in that the children
were not placed in the legal custody of a suitable family member.
The trial court’s decision to deny A.L.’s motion for legal custody of the
children to [Z.A.] was not based on a preponderance of the evidence and,
therefore, constitutes an abuse of discretion.
Award of Permanent Custody
{¶19} An appellate court will not reverse a juvenile court’s termination of parental
rights and award of permanent custody to an agency if the judgment is supported by clear
and convincing evidence. In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440,
¶ 24.
{¶20} In order to terminate parental rights and grant permanent custody to
CCDCFS, the court must apply a two-prong test. In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 23. First, the court must find by clear and
convincing evidence one of the factors set forth in R.C. 2151.414(B)(1). Second, the
court must determine, by clear and convincing evidence, that it is in the best interest of
the child to terminate parental rights. R.C. 2151.414(B)(2).
{¶21} The factors under R.C. 2151.414(B)(1) include: (a) the child cannot be
placed with either parent within a reasonable period of time or should not be placed with
either parent; (b) the child is abandoned; (c) the child is orphaned and no relatives are
able to take permanent custody of the child; or (d) the child has been in the temporary
custody of one or more public or private children services agencies for 12 or more months
of a consecutive 22-month period. This court has “consistently held that only one of the
factors set forth in R.C. 2151.414(D) needs to be resolved in favor of the award of
permanent custody in order for the court to terminate parental rights.” In re Z.T., 8th
Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 56. See also In re P.C., 8th Dist. Cuyahoga
Nos. 90540 and 90541, 2008-Ohio-3458, ¶ 31, citing In re C.H., 8th Dist. Cuyahoga Nos.
82258 and 82852, 2003-Ohio-6854, ¶ 34; In re R.M., 8th Dist. Cuyahoga Nos. 99809,
99810, and 99811, 2013-Ohio-4928, ¶ 13.
{¶22} In addition, R.C. 2151.414(E) sets forth the elements necessary to satisfy an
R.C. 2151.414(B)(2) determination, by clear and convincing evidence, that the child
cannot or should not be placed with his parents within a reasonable time, and provides in
relevant part:
(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 parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home. In
determining whether the parents have substantially remedied those
conditions, the court shall consider parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative
services and material resources that were made available to the
parents for the purpose of changing parental conduct to allow them
to resume and maintain parental duties.
(2) Chronic * * * chemical dependency of the parent that is so severe
that it makes the parent unable to provide an adequate permanent
home for the child at the present time and, as anticipated, within one
year * * *.
***
(4) The parent has demonstrated a lack of commitment toward the child
by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for the child.
***
(9) The parent has placed the child at substantial risk of harm two or
more times due to alcohol or drug abuse and has rejected treatment
two or more times or refused to participate in further treatment two
or more times after a case plan issued * * *.
***
(16) Any other factor the court considers relevant.
{¶23} The existence of one factor alone will support a finding that the child cannot
be reunified with the parents within a reasonable time. See In re William S., 75 Ohio
St.3d 95, 99, 1996-Ohio-182, 661 N.E.2d 738; In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 50.
{¶24} With regard to the requirement that it is in the best interest of the child to
terminate parental rights, R.C. 2151.414(D)(1)(a) through (e) set forth the relevant factors
a court must consider in determining the best interest of the child, and include, but are not
limited to, the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers, and
any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶25} Only one of these enumerated factors needs to be resolved in favor of the
award of permanent custody. In re D.W., 8th Dist. Cuyahoga No. 98717,
2013-Ohio-272; In re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d
Dist.1993); In re C.H., 8th Dist. Cuyahoga Nos. 82258 and 82852, 2003-Ohio-6854.
{¶26} In this case, the trial court found, by clear and convincing evidence, that it is
in the best interest of the children to grant permanent custody to CCDCFS, they cannot be
placed with their parents within a reasonable time or should not be placed with either
parent, and determined that permanent custody is in the children’s best interest.
{¶27} The court found that the children have been in temporary custody for over
two years. The court further determined that they cannot be placed with either parent
within a reasonable period of time or should not be placed with either parent. In relevant
part, the court concluded that the evidence established that A.L. has not completed case
plan services, has severe chemical dependency, does not have her own housing, is not
employed, has not addressed her mental health issues, and is unable to provide an
adequate permanent home for the children. The court also outlined each parent’s
difficulties with parenting and with completing their case plan requirements and
concluded that A.L. failed continuously and repeatedly to substantially remedy those
conditions and demonstrated a lack of commitment to provide an adequate permanent
home for the children. In addition, the record demonstrates that although the children
were brought to CCDCFS for weekly visitation with A.L., from February 2013 forward,
she had visited with the children only twice, on June 12, 2013 and August 13, 2013, and
otherwise failed to meet with them or call CCDCFS to say that she would not attend
visitation. The court also noted the children’s psychological issues, and that the foster
mother is taking them to counseling.
{¶28} Based upon all of the evidence of record, the juvenile court’s termination of
parental rights and award of permanent custody to CCDCFS is supported by clear and
convincing evidence and meets the requirements of R.C. 2151.414. Although A.L. has
visited with her children and has a genuine desire for the children to remain within her
family, the evidence clearly and convincingly indicates that she cannot provide a legally
secure permanent placement for E.W. and M.W. and that they cannot be placed with her
within a reasonable time. Therefore, based upon our thorough review of the record, the
trial court properly terminated parental rights and awarded permanent custody of E.W.
and M.W. to CCDCFS. Accordingly, the first assignment of error is without merit.
Suitable Family Member
{¶29} In ruling upon a motion for permanent custody under R.C. 2151.414, the
trial court must weigh of all the relevant factors in determining a child’s best interests.
R.C. 2151.414(D)(1). Although family unity and “blood relationship” are important
factors in determining the best interest of a child, neither of these factors is controlling.
In re T.W., 8th Dist. Cuyahoga Nos. 86084, 86109, and 86110, 2005-Ohio-6633, ¶ 15.
Further,
[t]he statute does not make the availability of a placement that would not
require a termination of parenting rights an all-controlling factor [and] does
not even require the court to weigh that factor more heavily than other
factors.
In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 63. See also In
re J.B., 8th Dist. Cuyahoga Nos. 98518 and 98519, 2013-Ohio-1703, ¶ 31. Rather, this
court has recognized that a child’s best interests require permanency and a safe and secure
environment. In re T.W., 8th Dist. Cuyahoga Nos. 86084, 86109, and 86110,
2005-Ohio-6633, citing In re T.W., Cuyahoga App. No. 85845, 2005-Ohio-5446.
{¶30} In this matter, the trial court considered Z.A.’s motion for legal custody
and stated:
A maternal aunt was proposed as a legal custodian. This proposed
custodian has no beds, no fire extinguishers, no smoke detectors, no posted
escape plan and no emergency phone numbers. The home is not suitable
for the [children.]
{¶31} The record also indicates that Z.A. left the emergency staffing, did not seek
custody of the children until after they had already been in foster care and kinship care
with T.G., had not visited with the children since February 2013, was not prompt in
completing the screening requirements for legal custody, and did not have beds for the
children. Although family unity and “blood relationship” are, in general, important
factors in determining the best interest of a child, and Z.A. clearly expressed care for the
children, this factor was not controlling herein. The award of permanent custody to
CCDCFS was not an abuse of discretion as it met the goals of providing permanency and
a safe and secure environment.
{¶32} The second and third assignments of error lack merit.
{¶33} 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.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA A. BLACKMON, J., CONCUR