In re C.J.

[Cite as In re C.J., 2014-Ohio-2403.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100532 and 100534
IN RE: C.J.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 11900672
BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: June 5, 2014
-i-
ATTORNEY FOR FATHER
Betty C. Farley
17316 Dorchester Drive
Cleveland, OH 44119
ATTORNEY FOR MOTHER
George Coghill
10211 Lakeshore Blvd.
Cleveland, OH 44108
ATTORNEYS FOR APPELLEE, STATE OF OHIO
Timothy J. McGinty
Cuyahoga County Prosecutor
BY:
Rachel V. Eisenberg
Assistant Prosecuting Attorney
3955 Euclid Avenue
Cleveland, OH 44115
Jennifer McPaul
Assistant Prosecuting Attorney
C.C.D.C.F.S.
8111 Quincy Avenue
Cleveland, OH 44104
ATTORNEY FOR CHILD
Suzanne Piccoreli
255 Falmouth Drive
Rocky River, OH 44116
-ii-
GUARDIAN AD LITEM FOR CHILD
Carla L. Golubovic
P.O. Box 29127
Parma, OH 44129
KENNETH A. ROCCO, J.:
{¶1} In these consolidated appeals, appellants N.J. and T.W., respectively, natural
father and natural mother of the subject child, each challenge the decision of the
Cuyahoga County Court of Common Pleas, Juvenile Division, to terminate his or her
parental rights and to grant permanent custody of their minor child to the Cuyahoga
County Department of Children and Family Services (“the agency”).
{¶2} Father presents three assignments of error. He claims that the juvenile
court’s decision should be reversed because the evidence presented did not demonstrate
that permanent custody was in the child’s best interest. Father further claims that the
award should be reversed for both the agency’s failure to determine that the child could
be placed with her paternal aunt and the juvenile court’s failure to grant legal custody of
the child to her paternal aunt.
{¶3} Mother presents two assignments of error. Like Father, she claims that the
juvenile court’s decision is unsupported by the evidence in the record. Mother
additionally claims that the juvenile court abused its discretion in admitting certain
evidence at trial because it constituted hearsay.
{¶4} Upon a review of the record, this court finds that none of appellants’ claims
have merit. Consequently, the juvenile court’s order is affirmed.
{¶5} Mother gave birth to the child on January 22, 2005. The agency obtained
emergency custody of the child when she was five years old, and eventually placed the
child in the same foster home as her older female sibling. Subsequently, the child’s
sister was placed into a separate foster home.
{¶6} On January 12, 2011, the agency filed a complaint in juvenile court seeking
temporary custody of the child. As amended, the complaint stated that the child was
dependent, the family had an “extensive history” with the agency, two older half-siblings
had mental health and behavioral problems, and Father neither visited nor supported the
child.
{¶7} On April 29, 2011, the matter proceeded to a hearing. Mother admitted the
allegations of the amended complaint. At the conclusion of the hearing, the juvenile
court granted the agency’s motion and placed the child in the agency’s temporary custody.
The court found that Mother was “to be involved in mental health evaluation and
services for child and for self.” The court also found that each parent “need[ed] stable
housing.” The court approved the agency’s case plan.
{¶8} The agency thereafter applied to the juvenile court for an extension of the
child’s temporary custody; the juvenile court granted the extension. On September 10,
2012, the agency filed a motion to modify temporary custody to permanent custody. The
agency asserted that the child had been in temporary custody for over 12 months of a
consecutive 22 month period, as set forth in R.C. 2151.414(B)(1)(d).
{¶9} Attached to the agency’s motion was the affidavit of Joyce Freeman, the
social worker of record for the case. Freeman averred that: (1) the case plan required
mother to “obtain emotional stability” and “appropriate parenting skills,” but that Mother
was not in compliance, having been charged in Euclid Municipal Court with child
endangering, (2) Mother failed on a consistent basis to appear at her time of private
visitation with the child, (3) Mother had failed to obtain an updated mental health
assessment and her “last assessments were obtained in 2008, wherein a history of
schizophrenia was referenced along with a diagnosis of personality disorder,” (4) none of
Mother’s four children was in her care and custody, and (5) Father was “a registered sex
offender with a conviction [for] Felony Gross Sexual Imposition from Cuyahoga County
in 2006.”
{¶10} While the agency’s motion was pending, the juvenile court conducted
several pretrial hearings. On March 19, 2013, Father filed a motion requesting that the
court grant him “or in the alternative a relative * * * to be name[d] later, legal custody of
the child.” In his supporting memorandum, Father asserted that he “will have
substantially complied and/or completed the case plan by time of trial” and that he had
“the ability to care for and support the child.”
{¶11} On May 10, 2013, Father amended his motion for legal custody to name his
sister Luretha Talbert as the “alternate” relative. Father asserted in his memorandum in
support of his amended motion that Talbert had complied with the child’s guardian ad
litem’s (“GAL”) and with the agency’s “custody investigation[s] and addressed any
alleged concerns.”
{¶12} On May 28, 2013, Talbert filed a “statement of understanding for legal
custody” pursuant to R.C. 2151.353(A) and R.C. 2151.42. Her signature had no attached
attestation.
{¶13} On August 29, 2013, the juvenile court called the matter for trial. Neither
Father nor paternal aunt attended. The agency presented the testimony of the two social
workers who had been assigned to the child’s case. Mother also testified.
{¶14} On September 17, 2013, the juvenile court issued a judgment entry that
granted the agency’s motion for permanent custody of the child. Both Father and Mother
have appealed from that judgment.
{¶15} In App. No. 100532, Father presents three assignments of error as follows.
I. The Cuyahoga County Department of Children and Family
Services failed to show by clear and convincing evidence that permanent
custody is in the minor child’s best interest.
II. The Cuyahoga County Department of Children and Family Services failed to
comply with Ohio Revised Code § 2151.412(G) in that the child was not placed in the
legal custody of a suitable family member.
III. The trial court’s failure to grant appellant’s motion for legal custody of the
child to a relative was not based on a preponderance of the evidence and therefore
constitutes an abuse of discretion.
{¶16} In App. No. 100534, Mother presents the following two assignments of error.
I. The trial court’s decision to award permanent custody to CCDCFS was against
the manifest weight of the evidence as it was not supported by clear and convincing
evidence.
II. The trial court abused its discretion by erroneously admitting prejudicial
hearsay testimony.
{¶17} Both Father and Mother argue in their first assignments of error that the juvenile court’s
decision is unsupported in the record. This court disagrees.
{¶18} In order to terminate parental rights and grant permanent custody to a county
agency, the record must demonstrate by clear and convincing evidence the following: (1)
the existence of one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (d);
and, (2) permanent custody is in the best interest of the child. In re: S.H., 8th Dist.
Cuyahoga Nos. 97992, 97993, and 97994, 2012-Ohio-4064, ¶ 27. “Clear and
convincing evidence” is that quantum of evidence that instills in the trier of fact a firm
belief or conviction as to the allegations sought to be established. In re Y.V., 8th Dist.
Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13, citing Cross v. Ledford, 161 Ohio St. 469,
477, 120 N.E.2d 118 (1954).
{¶19} In determining the child’s best interest, the relevant factors include the
following: (1) the interaction and interrelationship of the child with others; (2) the wishes
of the child; (3) the custodial history of the child; (4) the child’s need for a legally secure
placement and whether such a placement can be achieved without permanent custody;
and, (5) whether any of the factors in divisions (E)(7) to (11) apply. The “best interest
determination” focuses on the child, not the parent. R.C. 2151.414(C); In re Awkal, 95
Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994). The discretion that the juvenile
court enjoys in deciding whether an order of permanent custody is in the best interest of a
child should be accorded the utmost respect, given the nature of the proceeding and the
impact the court’s decision will have on the lives of the parties concerned. Id. at 316.
{¶20} In this case, the record demonstrated pursuant to R.C. 2151.414(B)(1)(d)
that the child had “been in the temporary custody of a public children services agency * *
* for twelve or more months of a consecutive twenty-two month period.” Neither Father
nor Mother can dispute that this requirement was met. The existence of that one factor
alone can support a finding that the agency should be granted permanent custody of the
child. In re S.G., 8th Dist. Cuyahoga No. 100441, 2014-Ohio-1088, ¶ 16, citing In re
William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996).
{¶21} In addition, R.C. 2151.414(D)(2) provides:
If all of the following apply, permanent custody is in the best interest
of the child and the court shall commit the child to the permanent custody
of a public children services agency or private child placing agency:
(a) The court determines by clear and convincing evidence that one
or more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable time or
should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or
longer, and no longer qualifies for temporary custody pursuant to division
(D) of section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned
permanent living arrangement pursuant to division (A)(5) of section
2151.353 of the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody of the
child.
(Emphasis added.)
{¶22} Putting aside the foregoing subsection (D)(2)(d) for purposes of the
discussion of Father’s and Mother’s first assignments of error, R.C. 2151.414(E)
provides:
(E) In determining at a hearing * * * whether a child cannot be placed with either
parent within a reasonable period of time or should not be placed with the parents, the
court shall consider all relevant evidence. If the court determines, by clear and convincing
evidence * * * that one or more of the following exist as to each of the child’s parents,
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 * * * .
{¶23} In this case, the juvenile court determined not one, but four, subsections of R.C.
2151.414(E) applied, viz., (1), (2), (4) and (11). The court determined that (1) in spite of planning and
diligent efforts by the agency to assist the parents in remedying the problems that initially caused the
child to be placed outside the home, the parents had failed continuously and repeatedly to substantially
remedy the conditions causing the child to be placed outside the home, (2) Mother displayed a chronic
mental or emotional illness so severe that it made her unable to provide an adequate permanent home
for the child at the present time and, as anticipated, within one year after the trial; (4) the parents
demonstrated a lack of commitment toward the child by failing to regularly support, visit, or
communicate with the child when able to so or by other actions showing an unwillingness to provide an
adequate home for the child, and (11) Mother had her parental rights involuntarily terminated with
respect to a sibling of the child and had failed to provide clear and convincing evidence to prove that,
notwithstanding the prior termination, Mother could provide a legally secure permanent placement and
adequate care for the health, welfare, and safety of the child.
{¶24} The juvenile court also found that the child’s best interest was served by
granting permanent custody to the agency. The juvenile court’s determinations and
findings were supported by clear and convincing evidence.
{¶25} As to Father, the record reflects that Father did not take any interest in the
child until late 2012. He never called the agency to inquire about the child’s welfare.
Moreover, he did not appear for his first supervised visit with the child, and could not
interact with the child at his next visit because the child refused to come near him.
{¶26} The record also reflects that, in the face of the child’s active aversion to him,
Father responded inappropriately; he told child to stop being afraid of him because she
was coming to live with him, which prompted only more fear in the child. Father did not
come to any visits with the child from February 2013 until June 2013. Father did not
have his own home; rather, he lived in his sister’s home. Father also had no verifiable
employment. Finally, Father did not find it necessary to attend the trial on the agency’s
motion for permanent custody.
{¶27} As to Mother, the record reflects that Mother failed to undergo qualified
assessments of her mental and emotional health, although she had been diagnosed in 2008
and 2010 with paranoid schizophrenia and a personality disorder. One social worker
testified that she was removed from the case because Mother had threatened her with
physical harm. Mother’s testimony at trial was disjointed and bizarre.
{¶28} The record also reflects that Mother was convicted of child endangering in
2012, Mother failed to utilize the services recommended by the social workers, and, at the
visitations with the child, she was chronically late and remained unfocused on the child.
Mother’s three older children had been permanently removed from her custody.
Mother’s claims that she could support the child because she had outside employment
were never substantiated. The child did not seem to have any affection for Mother;
indeed, Mother admitted that the child was usually “angry” during Mother’s visits.
{¶29} The child’s GAL recommended that the agency’s motion be granted. The
record supports a conclusion that, in light of the child’s lack of a bond with either her
Father or her Mother and the child’s own psychological and emotional problems, the
child had an urgent need for a legally secure placement.
{¶30} Based on the record, clear and convincing evidence supports the juvenile
court’s decision that granting permanent custody of the child to the agency was in her best
interest. Father’s and Mother’s first assignments of error, accordingly, are overruled.
{¶31} Father asserts in his second and third assignments of error that neither the
agency nor the juvenile court complied with its statutory duties under R.C. 2151.412(G)
and R.C. 2151.353(A) to ensure that the child was placed in the legal custody of a
relative. According to Father, his sister Luretha Talbert was a relative who was able to
appropriately provide for the child. Father misreads the statutes.
{¶32} R.C. 2151.412(G) governs case plans, not custody determinations. In re
M.W, 8th Dist. Cuyahoga No. 96817, 2011-Ohio-6444, ¶ 26. While the statute provides
that, in developing a case plan, the agency should consider that if parents are not suitable
custodians for their children then extended family members are next in priority, the
statute’s provisions are not mandatory. Id., citing In re Rollinson, 5th Dist. Stark Nos.
97CA00243 and 97CA00206, 1998 Ohio App. LEXIS 1984 (Apr. 27, 1998). The
statute provides in relevant part, moreover, that “[i]n the agency’s development of a case
plan and the court’s review of the case plan, the child’s health and safety shall be the
paramount concern.” Thus, other than parents, no preference exists for family members
in custody awards. In re M.W. at ¶ 27.
{¶33} Similarly R.C. 2151.353(A)(3) provides that a juvenile court “may” make an
order of disposition to
any other person who, prior to the dispositional hearing, files a
motion requesting legal custody of the child or is identified as a proposed
legal custodian in a * * * motion filed prior to the dispositional hearing by
any party to the proceedings. * * *
{¶34} In this case, the record reflects that the agency considered Talbert as a
possible placement alternative for the child. Upon investigation, however, the social
worker found that Talbert had been less than honest about her background; although
Talbert denied having any history of substance abuse, she had been charged with drug
trafficking. Talbert visited with the child only once, never called the agency to inquire
about the child’s welfare, and did not consider Father’s sexual offense conviction to be of
any concern. Like her brother, Talbert did not find it necessary to appear at the trial of
this case.
{¶35} Under these circumstances, neither the agency nor the court was required to
give preferential consideration to Father’s suggestion that Talbert be granted legal
custody of the child. In re P.T., 5th Dist. Tuscarawas No. 2012 AP 02 0009,
2012-Ohio-4034. Father’s second and third assignments of error, therefore, are also
overruled.
{¶36} Mother argues in her second assignment of error that the juvenile court
acted improperly in overruling her objections to the social workers’ testimony about
Mother’s psychiatric history; the social workers testified that Mother had been diagnosed
with schizophrenia and a personality disorder. Mother asserts the testimony was
inadmissible hearsay. Upon a review of the record, however, this court cannot find the
juvenile court erred.
{¶37} The rules of evidence apply to dispositional proceedings pursuant to R.C.
2151.35(I). Nevertheless, a trial court has broad discretion in admitting or excluding
evidence, and absent an abuse of discretion and a showing of material prejudice, a trial
court’s ruling on the admissibility of evidence will be upheld. In re J.T., 8th Dist.
Cuyahoga Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 67, citing State v. Martin, 19 Ohio
St.3d 122, 129, 483 N.E.2d 1157 (1985).
{¶38} The juvenile court judge is presumed to be able to disregard improper
testimony. In re J.T. at ¶ 70. The admission of hearsay evidence in termination of
parental rights cases, therefore, even if error, is not considered prejudicial unless it is
shown that the judge relied on improper evidence in making his decision. Id., citing In
re Lucas, 29 Ohio App.3d 165, 504 N.E.2d 472 (3d Dist.1985).
{¶39} In this case, the evidence Mother challenges was already properly a part of
the record. The case plan filed with the juvenile court indicated that a court-ordered
psychological test in 2010 “revealed that [Mother] is an individual who possibly meets
the criteria for having paranoid schizophrenia.” Thus, Mother’s mental status had
already been documented. In re J.T. at ¶ 71.
{¶40} The social workers’ testimony, therefore, was designed to report Mother’s
obligations under the case plan that they oversaw and whether there was compliance. Id.In order to be “current,” Mother was required to undergo another psychological
assessment within two years of the institution of the case plan, but she failed to obtain an
approved assessment.
{¶41} The record in this case does not establish that either the juvenile court erred
in allowing the social workers’ testimony about Mother’s previous diagnosis or that the
juvenile court relied upon hearsay in determining that a grant of permanent custody to the
agency was in the child’s best interest. Id. at ¶ 71-72. Consequently, Mother’s second
assignment of error is overruled.
{¶42} The juvenile court’s judgment is affirmed.
It is ordered that appellee recover from appellants 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.
_________________________________________
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR