In re S.B.

[Cite as In re S.B., 2021-Ohio-1091.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE S.B., ET AL. :
: Nos. 110016 and 110017
Minor Children :
:
[Appeal by S.J., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 1, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD18915344 and AD18915345
Appearances:
Edward F. Borkowski, Jr., for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
LARRY A. JONES, SR., P.J.:
Mother-appellant, S.J. (“Mother”), appeals from the trial court’s
judgments granting the motion of appellee, the Cuyahoga County Division of
Children and Family Services (“CCDCFS” or “the Agency”), for permanent custody
of Mother’s three minor children, M.B. (date of birth February 22, 2017), and twins
Se.B. and Sy.B. (date of births September 29, 2018).1 For the reasons that follow,
we affirm.
Procedural History
In mid-December 2018, approximately three months after the twins
were born and when M.B. was approaching two years of age, the children were
removed from Mother and Father’s2 care pursuant to an emergency ex parte order.
The Agency sought the order because Sy.B., one of the twins, had suffered a broken
arm and Mother was unable to explain how the injury had occurred. Mother was
charged with child endangerment as a result of the injury. See Cuyahoga C.P. No.
CR-18-635851-B.
The day following the emergency order, CCDCFS filed a complaint,
wherein it alleged that Sy.B. was abused, and all three children were dependent.
The Agency sought a disposition of temporary custody. After a hearing, the trial
court granted CCDCFS predispositional temporary custody of the children.
In March 2019, the trial court held a hearing, and Mother stipulated
to an amended complaint. The trial court adjudicated all three children to be
dependent; Sy.B. was also adjudicated abused. In July 2019, after a hearing, the
children were committed to the temporary custody of CCDCFS.
In December 2019, the Agency filed a motion to modify temporary
custody to permanent custody; an amended motion was filed in February 2020.
1The trial court issued three judgment entries; one for each child.
2Father’s parental rights were also terminated. He is not a party to this appeal, however,
and will therefore only be minimally discussed.
The hearing on the permanent custody motion was held in September 2020, after
which the trial court granted the Agency’s motion, terminated Mother’s parental
rights, and committed the children to the permanent custody of CCDCFS.
Trial Testimony
CCDCFS presented two witnesses at the hearing on its motion for
permanent custody: case worker Sherri Alvis (“Alvis”) and case worker Frank
Townsley (“Townsley”). They established the following facts.
Alvis testified that she had been involved with the family prior to
Sy.B.’s injury in December 2018. Specifically, she became involved with the family
in September 2018 when the twins were born because Mother tested positive for
drugs at their births.
After the December 2018 referral to the Agency about Sy.B.’s arm,
Alvis spoke with Mother about the injury. Mother told Alvis that she noticed
something was wrong with Sy.B.’s arm but did not think it was broken. Mother
was unable to tell Alvis how or when the injury occurred.
Alvis testified that a case plan was developed to address Mother’s
parenting, mental health, and substance abuse issues. Mother engaged in some
substance abuse services but was twice discharged for noncompliance. Thereafter,
CCDCFS referred Mother for a higher level of care. At the time of trial in
September 2020, Mother had been engaged in inpatient treatment substance
abuse services; she had started the treatment in late July 2020. Mother’s last drug
screen was taken on July 14, 2020; she testified positive for marijuana. At the
time, she was pregnant, and it was a week before her sentencing in the child
endangerment case.
A no-contact order was issued in the child endangerment case, and
Mother’s visitation with the children had to comply with that order; supervised
visitation was held at the Jane Edna Hunter building in Cleveland. When the
COVID-19 lockdown restrictions were implemented in March 2020, the visitations
were done virtually. Mother attended approximately 70-80 percent of all the
visits. According to both Alvis and Townsley, Mother’s interaction with the
children was appropriate.
At one point, Mother and Father were having “issues” and Mother
sought Alvis’s help in finding another place to live. Alvis helped Mother get
registered at a homeless shelter. Alvis testified that she had not seen Mother’s
residence; Mother told her that “it wasn’t appropriate,” so she and the children
were going to live with maternal grandmother. Eventually, Mother and Father got
a home together.
As of August 2020, Mother’s visitation with the children still had not
progressed beyond supervised visitation because she had not yet demonstrated
sobriety and was on probation for the child-endangerment case. Mother also still
had ongoing issues with housing and basic needs. The only case-plan service that
she had completed was the parenting component, which she completed at the
beginning of the case.
Townsley testified that when the case went to trial in September
2020, he was not aware that Mother had secured housing. He testified that
Mother and Father had told him that they were “just staying” at the house where
they were then living, implying that it was not permanent. Moreover, Mother and
Father told Townsley that they would meet him outside the house. Townsley
admitted that he never asked to go inside the house, however. Also, as mentioned,
Mother was engaged in inpatient-treatment-sobriety services at the time of trial.
She had started the treatment in mid-July 2020.
Since their removal from their parents’ care, the children had been
placed in foster care; the twins were placed together and M.B. was placed in a
different foster home. Townsley testified that the placements were positive and
appropriate, and the children had good relationships with their foster parents.
CCDCFS sought the change from temporary custody to permanent
custody based on Mother’s failure to establish sobriety and her inability to
maintain stable housing.
The children, who were three and almost two years old at the time of
trial and unable to express their wishes as to the outcome of the proceeding, had a
guardian ad litem (“GAL”). The GAL stated the following on their behalf:
These are extremely difficult cases for Guardian ad Litems because
we’re talking about severing parental rights and nobody ever wants to
do that, but yet I am charged with the responsibility of making an
investigation and a recommendation of what’s in the best interest of
the children, and based upon my investigation it is my
recommendation that the bests interests of the children is for this
Court to grant the motion that was filed by the Agency.
Trial Court’s Findings and Mother’s Assignment of Error
The trial court issued three judgments, one for each child, granting
CCDCFS’s motion for permanent custody, thereby terminating Mother’s parental
rights. As to each child, the court made a finding under R.C. 2151.414(B)(1)(a) that
the child “cannot be placed with one of the child’s parents within a reasonable time
or should not be placed with either parent.” In support of its findings, the court
included specific findings in relation to multiple factors set forth under R.C.
2151.414(C). The trial court further found that permanent custody was in each
child’s best interest under R.C. 2151.414(D).
Mother assigns the following sole assignment of error for our
review: “The trial court abused its discretion by granting permanent custody of
Appellant’s children to CCDCFS against the manifest weight of the evidence.”
Law and Analysis
We begin our discussion by recognizing that 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). This right is not absolute, however. 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).
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, and, therefore, 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).
The clear and convincing standard of review applies to permanent-
custody determinations. “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., 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.
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.
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 Prong: R.C. 2151.414(B)(1)(a)-(e)
First, the juvenile court must find by clear and convincing evidence
that one of the following 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.
Here, the trial court made a finding as to each child under
subsection (a) that the child “cannot be placed with one of the child’s parents
within a reasonable time or should not be placed with either parent.” The court
supported its findings with the following factors set forth under R.C. 2151.414(E):
failure to remedy (E)(1); lack of commitment (E)(4); pleaded guilty to child
endangerment charges (E)(6); and abuse of Sy.B. (E)(15).
Mother has not challenged the trial court’s finding under the first
prong of the test that each 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.” Our
review demonstrates that the finding was supported by some competent, credible
evidence. As Mother acknowledges, “she must concede that she was convicted of
one of the listed offenses in (E)(6) and thus under the statute the court had to
make the finding that it made.” Mother’s brief, p. 10. See R.C. 2151.414(E)(6) (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” if “one or
more of the following exist * * * the parent has been convicted of” child
endangerment “and the child or a sibling of the child was a victim of the offense.”).
Because there was no error with the court’s finding under the first prong, we
consider the court’s finding under the second prong.
Second Prong: R.C. 2151.414(D)
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(D). This court reviews a trial court’s best-interest
determination under R.C. 2151.414(D) for an abuse of discretion. In re J.F., 2018-
Ohio-96, 102 N.E.3d 1264, ¶ 55 (8th Dist.), citing In re D.A., 8th Dist. Cuyahoga
No. 95188, 2010-Ohio-5618, ¶ 47. In this regard, “‘[a] trial court’s failure to base
its decision on a consideration of the best interests of the child constitutes an abuse
of discretion.’” In re J.F. at id., quoting In re N.B., 8th Dist. Cuyahoga No. 101390,
2015-Ohio-314, ¶ 60.
In considering the best-interest determination, R.C. 2151.414(D)(1)
mandates that the juvenile court consider all relevant factors, including 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.
The juvenile court has considerable discretion in weighing these
factors. We review a juvenile court’s determination of a child’s best interest for
abuse of that discretion. In re D.A. at id. Although the juvenile court is required to
consider each factor listed in R.C. 2151.414(D)(1), no one factor is to be given
greater weight than the others. 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. Only one of the factors set forth in R.C. 2151.414(D)(1) needs to
be resolved in favor of permanent custody. In re A.B., 8th Dist. Cuyahoga No.
99836, 2013-Ohio-3818, ¶ 17.
Moreover, “the best interest determination focuses on the child, not
the parent.” In re K.Z., 8th Dist. Cuyahoga No. 107269, 2019-Ohio-707, ¶ 85,
citing In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 59. “A trial
court’s failure to base its decision on a consideration of the best interests of the
child constitutes an abuse of discretion.” In re N.B. at ¶ 60, citing In re T.W., 8th
Dist. Cuyahoga No. 85845, 2005-Ohio-5446, ¶ 27, citing In re Adoption of
Ridenour, 61 Ohio St. 3d 319, 574 N.E.2d 1055 (1991).
Here, the trial court found under subsection (a) that the children are
“bonded with foster parents and [have] a very positive relationship with them.”
Under subsection (b), the court noted that the children were too young to express
their wishes, but the GAL recommended permanent custody. The court further
found under subsection (c) that at the time of the September 2020 trial, the
children had been in CCDCFS’s custody since December 2018, which meant that
the twins had been in the Agency’s custody since they were three months old. The
court further found that they were doing well in their foster care placements.
In regard to the finding under subsection (d) relative to the
children’s need for a legally secure placement and whether that could be achieved
without a grant of permanent custody, the court found that the children “cannot be
placed with one of the child’s parents within a reasonable time or should not be
placed with either parent.” The court further made a specific finding as to each
child that the child
needs a safe and stable home where [the child’s] basic needs can be
met on a consistent basis as well as a home in which [the child] can
thrive. This cannot be achieved with Mother or Father as they do not
have stable housing and have continuously failed to address the issues
that led to the removal of the child.
Upon review, there is competent, credible evidence to support the
trial court’s best-interest finding; it did not abuse its discretion. In regard to the
children’s interaction with significant people in their lives, it is true that Mother
visited with the children 70 to 80 percent of her visitation time and that her
visitations were generally appropriate. However, because of the no-contact order,
the children’s young ages, and the Covid-19 restrictions, her ability to bond with
them was limited. They have spent the majority of their young lives in foster care
and have bonded with their foster families. To that end, the GAL noted the
children’s young ages and recommended permanent custody.
Mother contends that because she made progress on her case plan,
the children’s need for secure placement could have been achieved without
granting permanent custody to the CCDCFS. But this court has held that after
making a “cannot or should not” finding under R.C. 2151.414(E), the trial court is
required to place the child with someone other than the parent. In re Mayle, 8th
Dist. Cuyahoga Nos. 76739 and 77165, 2000 Ohio App. LEXIS 3379, 20-21 (July
27, 2000). As mentioned, Mother conceded that one of the findings under R.C.
2151.414(E) existed here; that is, that she had been convicted of child
endangerment of one of her children.
We recognize the impediments the Covid-19 restrictions interjected
in this case. But those restrictions were not imposed until 15 months into the case.
An order extending temporary custody would have only lasted until December
2020, because the court may not maintain a child in temporary custody beyond
two years. See R.C. 2151.353(G); R.C. 2151.415(D)(4). There is no indication in
the record that Mother would have been able to comply within that deadline.
In light of the above, the trial court’s best-interest determination
was supported by some competent, credible evidence and the trial court did not
abuse its discretion in making it. 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). The record here demonstrates that the trial court sought to fulfill
that goal.
Mother’s sole assignment of error is overruled.
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 issue out of this court directing the
common pleas court, 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.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR