In re R.D.

[Cite as In re R.D., 2022-Ohio-4519.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE R.D., ET AL. :
Minor Children : No. 111798
[Appeal by R.K., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 15, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD20907351 and AD20907352
Appearances:
Judith M. Kowalski, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ashley R. Lockemer and Joseph C. Young,
Assistant Prosecuting Attorneys, for appellee.
EILEEN A. GALLAGHER, J.:
Appellant-mother R.K. (“Mother”) appeals the judgment of the
Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court”),
that terminated her parental rights and granted permanent custody of her minor
children — Ran.D. and Rai.D. — to appellee, the Cuyahoga County Division of
Children and Family Services (“CCDCFS” or the “agency”). Mother contends that
the juvenile court’s determination that permanent custody was in the children’s best
interest was not supported by clear and convincing evidence and that the juvenile
court, therefore, erred and abused its discretion in granting permanent custody of
the children to the agency. For the reasons that follow, we affirm.
I. Factual Background and Procedural History
On August 31, 2020, CCDCFS filed a complaint for neglect and
temporary custody of Ran.D. (d.o.b. July 31, 2014) and Rai.D. (d.o.b. January 15,
2017) along with a motion for predispositional temporary custody. The complaint
alleged that Mother “lacks appropriate decision making to provide for the children,”
that on or about January 6, 2020, Mother had “left Ran.D. home alone while she
went to work” with “[t]he oven * * * turned on to heat the home,” that “the home
was in a deplorable condition” and that Mother was homeless and did not have
stable housing in which to provide for the children. The complaint further alleged
that the children’s father, Rah.D., (“Father”) had been recently convicted of drug
possession and that Father had physical limitations that precluded him from caring
for the children.1 CCDCFS case worker Gabrielle Uhrin attested to the allegations of
the complaint. In her affidavit in support of the agency’s motion for predispositional
custody, Uhrin further averred that the agency had made a referral for parenting
1A prior complaint for neglect and temporary custody of the children was filed on
January 7, 2020 (Cuyahoga J.C. Nos. AD20900140 and AD20900141) and the children
were committed to predispositional temporary custody of the agency on that date. The
case was not resolved within statutory time limits and was dismissed. The children have
remained in the uninterrupted custody of the agency since that time.
classes and a CMHA housing referral but that Mother was “without housing” and
that, although Mother was “currently engaged in services,” she had not “yet
demonstrated that she’s benefitted from services.”
On August 31, 2020, the magistrate granted the agency’s motion for
predispositional temporary custody and committed the children to the emergency
temporary care and custody of the agency. In granting the motion, the magistrate
noted, “[M]other is currently engaged in services but has not yet demonstrated she
has benefitted from the services and additional services must be completed to
alleviate the risk to the child[ren].”
A. Adjudication of Neglect and Temporary Custody
An adjudicatory hearing was held on November 23, 2020. Mother
stipulated to the allegations of an amended complaint,2 and the children were
2 The amended complaint alleged:
1. A complaint for Neglect and Temporary Custody was previously filed on
January 7, 2020 and the children were committed to the emergency temporary
custody of CCDCFS since that time. That matter was not resolved within the
statutory guidelines and was dismissed. See Case Nos. AD20900140-41.
2. Mother lacks appropriate decision making to provide for the children. On or
about January 6, 2020, Mother left Ran.D. home alone while she took child
Rai.D. to daycare.
3. An individual arrived at the home and discovered that the child was without
supervision. The oven was turned on to heat the home and the home was in
deplorable condition.
4. Mother does not have stable housing in which to provide for the children.
Mother is currently homeless.
5. Father was recently convicted of drug possession. See Case No. CR-19-641817-
A.
6. Father has physical limitations which currently preclude him from caring for
the children.
adjudicated to be neglected. The parties agreed to proceed immediately to
disposition. Mother agreed to a disposition of temporary custody and the children
were committed to the temporary custody of the agency.
The agency then filed a case plan with the juvenile court. As it related
to Mother, the case plan required Mother to complete a mental health assessment
and comply with any recommended services, to attend a parenting program and
learn proper parenting skills to make sound decisions in caring for and protecting
her children, to obtain and maintain safe, clean and appropriate housing and to
ensure the presence of an adequate and appropriate food supply in the home daily.
As it relates to Father, the case plan required Father to maintain a relationship with
his children and to financially support them as much as possible. The stated
permanency goal of the case plan was reunification with Mother. The juvenile court
approved the case plan but ordered the agency to submit an amended case plan that
included substance abuse services for Father. The agency filed an amended case
plan that required Father to undergo an alcohol and drug assessment and to comply
with any recommendations.
On December 22, 2020, the state filed a motion for a first extension
of temporary custody. The state asserted that progress had been made on the case
plan but that, because all of the case plan objectives had not yet been met, the risk
to the children had not been sufficiently reduced and extension of temporary
Reasonable efforts were made by Cuyahoga County Division of Children and
Family Services to prevent the removal of the children from the home and removal is in
the best interest of the children.
custody was in the children’s best interest. With respect to Mother, the agency
indicated that Mother had “completed parenting services” and a substance abuse
and mental health assessment but needed to “follow through on mental health
recommendations, complete intensive out-patient treatment, and obtain stable and
appropriate housing.” With respect to Father, the agency indicated that Father had
been visiting with the children and “needs to continue to develop his relationship
with them.” Mother agreed to the first extension of temporary custody.
The juvenile court granted the first extension of temporary custody.
As related to Mother, the juvenile court found that “Mother was referred for
parenting classes, basic needs (housing), and substance abuse services” and that
Mother had made “significant progress on the case plan.” As related to Father, the
juvenile court stated, “Father shall build a relationship with the child[ren]. Father
is engaged in case plan services. Substance abuse services were added to the case
plan for Father.” The juvenile court ordered that both parents submit to “monthly,
random drug testing by urinalysis,” as requested by the agency.
In April 2021, the agency filed an amended case plan removing Father
from the case plan because he had not been “participating in case plan service, drug
screens, etc.” The magistrate approved the amended case plan.
In May 2021, CCDCFS filed a motion for a second extension of
temporary custody. The agency asserted that although “substantial additional
progress” had been made on the case plan, because all the case plan objectives had
not yet been met, the risk to the children had not been sufficiently reduced to return
the children to Mother’s care. The agency further asserted that it had “reasonable
cause to believe reunification is expected during this period of extension if granted”
and that a second extension of temporary custody was in the children’s best interest.
With respect to Mother, the agency stated that Mother had maintained her sobriety
since November 2020 and “remains engaged in after care to address substance
abuse,” that she “consistently visits with her children” and that she had completed
parenting classes and was “working to obtain independent housing through
CMHA.” With respect to Father, the agency stated that Father was not engaged in
case plan services, did not visit or communicate with his children and had not made
himself available to become engaged in case plan services. Mother agreed to a
second extension of temporary custody. An amended case plan was approved
permitting Mother to have unsupervised visits with the children.
On June 30, 2021, the juvenile court granted the motion for a second
extension of temporary custody, finding that there had been “substantial additional
progress on the case plan by Mother” since the first extension of temporary custody,
that there was reasonable cause to believe that the children would be reunified with
one of the parents or permanently placed within the period of extension and that the
continuation of temporary custody was necessary and in the best interest of the
children. The juvenile court indicated that the permanency plan for the children
was legal custody to Mother with no restrictions. The juvenile court once again
ordered Mother to submit to “monthly, random drug testing by urinalysis,” as
requested by the agency.
On August 19, 2021, CCDCFS filed a motion to terminate temporary
custody without protective supervision (“motion to terminate temporary custody”),
seeking an order granting legal custody of the children to Mother with no
restrictions, on the grounds that Mother had “successfully completed the case plan
services,” i.e., securing housing and completing parenting education and substance
abuse treatment, and had “remedied the risks that initially caused the children to be
removed.”3 The agency requested an “immediate hearing” on the motion “so that
the children can be returned to their mother prior to the start of the 2021-2022
school year.” Less than a month later, however, the agency began having difficulty
contacting Mother and the guardian ad litem was unable to complete a home visit.
Mother also failed to appear for the October 5, 2021 hearing on the agency’s motion
to terminate temporary custody. In November 2021, the agency withdrew its
motion to terminate temporary custody, without objection, and filed an amended
case plan requiring that Mother’s visits with the children, once again, be supervised.
The magistrate approved the amended case plan.
On December 20, 2021, the agency filed a motion to modify
temporary custody to permanent custody. In her supporting affidavit, Uhrin (who
had been assigned to the case since February 2020) averred that Mother “does not
have stable and appropriate housing in which to provide for the children,” that
Mother had “completed a mental health assessment which recommended substance
3 No affidavit or other evidence was submitted in support of the motion to
terminate temporary custody.
abuse treatment services for cannabis dependency” but had “failed to successfully
complete” the recommended substance abuse treatment services and that Mother
had “failed to submit to drug testing on a consistent basis” and continued to use
marijuana. Uhrin further averred, with respect to Father, that Father had “not
submitted to drug testing as required,” had medical issues that prevented him from
providing full-time care for the children and had failed to support the children on a
consistent basis.
Multiple continuances were requested due, in part, to difficulties in
perfecting service on Mother. At a pretrial conference on March 2, 2022, it was
noted that Mother “has been linked for [intensive outpatient] at Ohio Northern and
is making progress on housing.” At a pretrial conference on April 12, 2022, a
continuance was requested “so that the Mother can secure housing.” At a pretrial
conference on May 16, 2022, the juvenile court ordered Mother to submit to a hair-
follicle test.
On May 31, 2022, Mother was indicted by a Cuyahoga County Grand
Jury on felony charges of robbery and theft relating to an April 3, 2020 incident in
which Mother allegedly stole the victim’s credit card, handbag, keys and/or license
or services. See Cuyahoga C.P. No. CR-22-670501-A. The criminal case was
unresolved at the time of the hearing.
B. The Permanent Custody Hearing
On June 21, 2022, the juvenile court held a hearing on the agency’s
motion for permanent custody (the “permanent custody hearing”). At the time of
the hearing, Ran.D. was seven years old and Rai.D. was five years old.
At the hearing, the agency argued that it should be awarded
permanent custody of the children because they had been in the custody of CCDCFS
for more than 12 months of the 22-month period specified in R.C. 2151.414(B)(1)(d)
and could not or should not be placed with Mother or Father within a reasonable
period of time. The agency further argued that it was in the best interest of the
children that they be placed in the permanent custody of the agency pursuant to R.C.
2151.414(D)(1)(a)-(e) and (D)(2) because the children had been in the custody of the
agency for more than two years, they were not eligible for a planned permanent
living arrangement due to their ages, no other interested person had sought legal
custody of the children and the factors specified in R.C. 2151.414(E)(1), (2), (4), (14)
and (16) applied.
Mother argued that the agency’s motion should be denied because
Mother loves her children “very much,” she, “at one point in time,” was “actually
very, very close to reunification” and she had “been working very hard to get back to
that point in time” and remedy the conditions that led to the removal of her children.
CCDCFS caseworker, Nicole House, was the sole witness to testify at
the hearing. House stated that she had been assigned to the case in April 2022 but
that she was familiar with the history of the case based on discussions with the
previously assigned case worker (Uhrin) and her independent review of the file.
House testified that the agency first became involved in the case in January 2020,
after it was reported that Mother had left Ran.D., who was then five years old, at
home alone with the stove on and the home in a “deplorable condition.” She
indicated that a police officer brought Ran.D. to the agency and the agency later
learned that there was a second child in the home, Rai.D. She indicated that it had
been reported that the children had been “home alone like this a lot of times.”
House testified that, at the outset of the case, the permanency goal
was reunification of the children with Mother. She stated that the agency developed
a case plan to assist Mother in addressing issues with parenting, mental health,
substance abuse4 and housing. She testified that Mother had been referred for
parenting services due to her failure to appropriately supervise the children and her
poor parenting decisions, e.g., “leaving the kids home alone,” and that Mother had
completed parenting classes through Northern East Neighborhood Center, a
Community Collaborative, in 2021.
House stated that, based on the assessments Mother received and her
discussions with Uhrin, it was her understanding that Mother was a “chronic
marijuana user,” who put her marijuana use ahead of taking care of her kids, i.e.,
4 House testified that Mother’s issues with substance abuse “came out” during
Mother’s mental health assessment and Mother’s conversations with the prior CCDCFS
case worker. For that reason, they were not among the issues identified in the complaint.
House indicated that case plan services were added to address Mother’s substance abuse
issues once documented by the service providers and case worker.
continuing to use marijuana while struggling with basic needs and leaving her home
in a deplorable condition. House explained:
To my understanding, I think mom minimizes it and a lot of
people do. That’s common because they look at marijuana as a
recreational drug. I’m just having fun. (Inaudible) legal. So they don’t
take it real serious. So I told her that a lot of her situation as far as
history of lack of housing, could have possibly came from that because
this is the thing.
If you’re using marijuana, it’s your first choice. You could at times don’t
take care of your kids. Not on purpose. I don’t know how you want to
define it, but it’s a concern because if you make it first and you’ve got to
have it – * * *.
House testified that because Mother had minimized her marijuana
use and was “so adamant” in denying that she had a substance abuse problem, the
agency initially thought Mother might have mental health issues. She indicated that
it was later determined Mother did not have mental health issues and that mental
health services “was taken off the case plan.”
House stated that, in an attempt to address Mother’s marijuana use,
the agency had referred Mother to four different substance abuse treatment
providers but that Mother was “not consistent with drug treatment,” i.e., she would
“start and then drop it and then she will start back up again with something and then
stop and then back and forth,” and failed to complete substance abuse treatment
programs at New Visions, Recovery Resources and The Centers.
House stated that there had been two extensions of temporary
custody and that because Mother had been making some progress on her case plan
and “was headed in the right direction,” in or around August 2021, the children
began having overnight visits with Mother and the agency filed a motion to
terminate temporary custody. House stated that, based on her conversations with
Uhrin, Uhrin, at that time, “went off a lot of what [Mother] told her,” including
Mother’s statement that she had completed substance abuse treatment services,
when the agency filed the motion to terminate temporary custody. House indicated
that the agency soon learned that Mother did not, in fact, complete substance abuse
treatment services when Mother’s drug test results came back and “it was not what
it was supposed to be,” i.e., “one day [Mother] was negative for something and then
she was positive,” so Uhrin “recanted her statement” in the motion to terminate
temporary custody that Mother had completed services.
House testified that in or around October and November 2021,
“things kind of unraveled” for Mother: Mother failed to appear at a court hearing for
reunification; Mother had a positive drug screen and then “stopped dropping urine
screens” for the agency; Mother lost her housing and began staying with various
friends (the names and addresses of which were not provided to the agency) and
Mother’s overnight visits with her children stopped. Because “things ha[d]
changed,” the agency withdrew its motion to terminate temporary custody and
made referrals for a new assessment for substance abuse treatment services. House
indicated that Mother was, at that time, referred to Recovery Resources and then to
The Centers for substance abuse treatment services but that Mother did not
complete substance abuse treatment services.
House testified that Mother began reengaging in substance abuse
treatment services at NORA House in March 2022. According to House, Mother
then “got a little lost, but she picked it up back up” in May 2022 and that she had
been participating in an intensive outpatient treatment program for the last three
weeks. House indicated that Mother had failed to comply with the agency’s requests
for random urine screens and a hair-follicle test,5 but that Mother was submitting to
weekly, scheduled urine screens at NORA House. House reported that, according
to the services provider, Mother “was still testing positive” for marijuana and had “a
long way to go” but that “her numbers were going down,” indicating that she was
“trying to stop it.” House stated that regularly scheduled urine screens were not a
substitute for the agency’s random urine screens or a hair-follicle test because
certain substances stay in a person’s system for only a few days and if a person knows
when a test is scheduled, they can avoid testing positive for those substances.
With respect to housing, House stated that the agency had made
multiple referrals for Mother for housing services but that Mother had not obtained
stable and appropriate housing for the children and was currently homeless and
living in a shelter, which House believed did not allow children. House indicated
that although there are other shelters that would allow children, the agency would
“never promote a shelter” as an appropriate living arrangement for a child. House
5 With respect to the court-ordered hair-follicle test, House testified that Mother
originally told her that she could not submit to a hair-follicle test because she had gotten
into an accident and “couldn’t cut her hair because her hair was injured.” She stated that
Mother later told her that she had completed a hair-follicle test on her own; however, the
results of that test were never provided to the agency.
stated that she did not know the condition of the area of the shelter in which Mother
was staying but indicated that no one from the shelter had informed her of any
concerns regarding the cleanliness or condition of the shelter “by virtue of
[Mother’s] actions.”
House testified that the agency had referred Mother to the Cuyahoga
Metropolitan Housing Association (“CMHA”) and FrontLine for housing assistance
but that Mother had missed multiple appointments with CMHA and had issues with
her paperwork. House stated that when she took over the case, Mother was staying
with a friend who “didn’t want a social worker in their house.” House indicated that
she recommended that Mother go to a shelter because after thirty days at the shelter,
Mother could receive a housing voucher. Although Mother went to a shelter and
obtained a housing voucher, she never secured a home. House testified that
Mother’s difficulties in obtaining housing had been further complicated by Mother’s
May 2022 indictment on felony robbery and theft charges. House indicated that
she spoke with Mother about the charges but that Mother minimized them, stating
“it’s nothing, nothing’s going to happen,” “I’m going to get out of this free, I ain’t do
anything.” House stated that the pending criminal charges would affect Mother’s
ability to obtain housing through CMHA.
House testified that there was a “good bond” between Mother and the
children and that Mother had been consistent with weekly visitation, usually held at
a fast-food restaurant or a park. She stated that Mother engaged with the children
appropriately during visits, i.e., she was attentive to the children, purchased food for
the children and disciplined them appropriately when warranted. House indicated
that she had never observed Mother to be under the influence during her visits with
the children. According to House, the only problem with Mother’s interaction with
the children was her tendency to give the children “false hope,” i.e., telling the
children that they would be returned to her care on a particular date or that she
would buy them gifts without following through. House stated that she could not
fully assess whether Mother was appropriately supervising the children during visits
because House was there “supervising [Mother] with her kids,” i.e., she could not
give Mother “the opportunity to do it by herself” due to the uncompleted case plan
services. House indicated that Mother told her she was working but House had not
been able to verify Mother’s employment and income. House stated that the
“emotional” and “discipline piece[s] were there,” but that Mother could not meet the
basic needs of the children.
With respect to whether any additional services could be put in place
to assist Mother, House stated, “maybe” a parenting coach, but that the “biggest
thing with [Mother’s] basic needs, was her lack of consistency with basic needs and
her failure to understand the importance of basic needs.” House explained:
Kids need to know when they going to wake up in the morning,
that they have a place to lay their head down and get up in the morning
and go to sleep. I mean, they’re not staying all over the place, going to
different school districts, 50,000 people[’s] addresses.
Turning to Father, House testified that the case plan originally
included substance abuse treatment services for Father but that he was removed
from the case plan because he was not participating in case plan services, was not
reporting information to the case worker, was “not dropping urine screens” as
ordered by the juvenile court and had “gotten into some trouble again.” House
stated that it was her understanding that Father was currently in jail for a probation
violation and new charges of trafficking fentanyl and cocaine, having weapons while
under disability and “different things of [that] nature.”
House testified that since 2020, the children had been in three
different placements. She stated that the children were originally placed with their
maternal grandmother but that the grandmother disrupted the placement because
she was not getting along with Mother and refused to continue to care for the
children. House indicated that the children were then placed with a family friend
but the caregiver disrupted the placement due to issues managing the oldest child’s
behavior. The children were then placed in their current foster placement, an
adoptive foster placement, where, according to House, the children were “doing
good.” House testified that the children got along “really, really good” with their
foster parent, that the foster parent was meeting the children’s basic needs, that
there were no safety concerns and that the foster parent had been working on
identifying and engaging tutoring services to assist Ran.D. with her educational
difficulties. House indicated that both children were receiving basic counseling
through Cleveland Charities and that they planned to seek an IEP to address
Ran.D.’s learning disabilities in the following school year.
House testified that Father had identified his mother and another
family friend as possible placements for the children but that neither was approved
as an appropriate placement. She indicated that the children’s paternal
grandmother had stated that, although she loved the children, she was unable to
care for them due to her age and health issues and that the family friend never made
herself available to CCDCFS to become an approved placement.
House stated that the agency believed permanent custody was in the
children’s best interest because Mother had “had a lot of time to do a lot of things”
and had been “given a lot of opportunities to fix” her situation, but “she’s taken this
long not to do it.” Despite having more than two-and-one-half years to obtain stable
housing and even after obtaining a housing voucher, Mother never secured housing
for the children. With respect to her substance abuse, Mother failed to comply with
agency requests and court orders requiring her to submit to random urine screens
and a hair-follicle test. House indicated that although Mother was “starting back
doing everything now” by attending an intensive outpatient drug treatment
program, not enough progress had been made and the “last-minute” nature of
Mother’s latest efforts caused the agency to question whether Mother would
“actually truly benefit from what she's doing right now.” House stated that there
was nothing to indicate that Mother or Father could provide permanency for the
children within the next several months or “in the near future.” House indicated
that Mother still needed to secure a home and show “consistency” with her
substance abuse treatment. She stated that the current program in which Mother
was enrolled was eight to 12 weeks long followed by six to seven weeks of aftercare.
House indicated that Mother’s pending criminal case, involving serious charges, was
also a concern regarding her ability to provide permanency and stability for the
children even if her housing and substance abuse issues were resolved.
Mother did not testify and did not present testimony of any other
witnesses at the permanent custody hearing.
C. The Guardian Ad Litem’s Report and Recommendation
On June 21, 2021, the guardian ad litem filed a written report and
recommendation. Based on a review of records filed with the court and visits or
interviews with Mother, the children’s foster mother, House and the children, he
recommended that the children be placed in the permanent custody of the agency
to “enable the children to flourish and develop in a safe and stable environment.”
The guardian ad litem reported that Mother had had “mixed results”
with her case plan. He noted that although Mother had been able to get extended
visits with the children, she had lost her housing and was now living in a shelter –
which he considered to be a “tenuous” placement because the program in which
Mother was participating did not allow participants to have criminal cases and a
capias had been issued for Mother’s arrest. He indicated that Mother’s failure to
submit to urine screens requested by the agency, her failure to comply with the
court-ordered hair-follicle test and her recent criminal charges “raises concerns
about [Mother’s] ability to stop using drugs.” He further stated that “[w]hile
[Mother] clearly loves her children, and has consistently visited her children,” she
had “failed to take the necessary long-term steps (quit spending money on drugs and
use it to pay the rent) for reunification” and that “[h]er present homeless situation,
continued drug use, and now pending felony criminal matters make her unable to
care for the children.”
With respect to Father, the guardian ad litem reported that Father
had just started visiting with the children and had not yet had time to develop a
strong relationship with them, that Father’s case plan objectives “remain
incomplete” and that Father was not available to care for the children due to three
pending criminal matters, including a probation violation and new charges related
to drug possession and trafficking and having weapons while under disability.
The guardian ad litem reported that the children were “doing well” in
their foster placement, that the children’s basic needs were being met and that the
foster placement provided the children a “loving, safe, and secure place to live.”
At the permanent custody hearing, the guardian ad litem reiterated
his recommendation that permanent custody be granted to the agency. He stated
that, at first, he believed this case was one that was “going for reunification,” but
that, in the last couple of months, it had “taken a huge turn downwards.” He noted
that Mother had picked up felony charges for robbery, involving thefts of bank cards
or credit cards, “showing an immediate need for cash” and that, during that same
period, Mother had refused to comply with the random drug screens requested by
the agency and the court-ordered hair-follicle test. The guardian ad litem explained
that he had requested the hair-follicle test out of concern that Mother might be using
more than marijuana after Father “picked up” a probation violation and two new
cases involving weapons charges and trafficking in fentanyl and cocaine. He stated
that Mother’s failure to submit to these drug tests “raise[d] grave concerns for [him]
regarding [Mother’s] substance abuse” “because it’s something that you can’t hide”;
“[o]nce you’ve used it, it will show up.”
The guardian ad litem indicated that he was also concerned that
Mother “still finds herself residing in a shelter,” unable to obtain stable housing. He
indicated that there were points in time in which Mother had stable housing, “but
then her income was obviously going into other activities,” because Mother has not
“consistently over the two-year period [been] able to meet the basic needs of the
children.”
D. The Juvenile Court’s Decision to Grant Permanent Custody of
the Children to CCDCFS
Following consideration of the evidence presented at the permanent
custody hearing and the recommendation of the guardian ad litem, the juvenile
court granted the agency’s motion for permanent custody, terminating the parental
rights of Mother and Father as to Ran.D. and Rai.D. On June 23, 2022, the juvenile
court issued written journal entries, setting forth its findings (the “permanent
custody order”). The juvenile court found, “by clear and convincing evidence,” that
the children had been in the temporary custody of the agency for 12 or more months
of a consecutive 22-month period pursuant to R.C. 2151.414(B)(1)(d), that, pursuant
to R.C. 2151.414(E)(1),(2), (4), (14) and (16), the children could not be placed with
either parent within a reasonable time or should not be placed with either parent
and that, pursuant to R.C. 2151.414(D)(1) and (2), it was the children’s best interest
that permanent custody be granted to the agency.
Mother appealed, raising the following sole assignment of error for
review:
The Cuyahoga County Juvenile Court erred and abused its discretion
in finding that clear and convincing evidence supported granting
permanent custody of the subject children to the Cuyahoga County
Department of Children and Family Services.
II. Law and Analysis
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); see also In re Murray, 52
Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990) (a parent has a “‘fundamental liberty
interest’ in the care, custody, and management” of his or her child), quoting
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This
right is not absolute, though. 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., 2017-
Ohio-1037, 86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio
St.2d 100, 106, 391 N.E.2d 1034 (1979).
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, approved “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 the 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).
A. Standard for Terminating Parental Rights and Granting
Permanent Custody to CCDCFS
An agency may obtain permanent custody of a child in two ways. In
re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 44 (8th Dist.), citing In re E.P., 12th Dist.
Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An
agency may first obtain temporary custody of the child and then file a motion for
permanent custody under R.C. 2151.413, or an agency may request permanent
custody as part of its abuse, neglect or dependency complaint under R.C.
2151.353(A)(4). In re J.F. at ¶ 44. In this case, the agency obtained temporary
custody and then filed a motion for permanent custody of the children.
R.C. 2151.414(B)(1) establishes a two-part test for courts to apply
when determining whether to grant a motion for permanent custody. A juvenile
court may grant a public child services agency’s motion for permanent custody if it
determines, by clear and convincing evidence, that (1) permanent custody is in the
best interest of the child and (2) any of the following applies:
(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.
R.C. 2151.414(B)(1)(a)-(e). “Clear and convincing evidence” is that “measure or
degree of proof” that “produce[s] in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; In re M.S., 2015-Ohio-
1028, at ¶ 8. 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 G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-
1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
Mother does not dispute that CCDCFS met its burden of establishing
that one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (e) exists.
Mother contends only that the juvenile court erred and abused its discretion in
determining that granting permanent custody to the agency was in the children’s
best interest.
B. Best-Interest Determination
R.C. 2151.414(D)(1) states that in determining whether permanent
custody is in a child’s best interest, the court “shall 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 * * *;
(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 [R.C. 2151.414(E)(7) to (11)] apply in
relation to the parents and child.
The best interest determination focuses on the child, not the parent.
In re N.B., 2015-Ohio-314, at ¶ 59. A juvenile court has considerable discretion in
weighing the factors set forth in R.C. 2151.414(D)(1). Although the juvenile court is
required to consider each statutory factor in determining what is in a child’s best
interest under 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. Further,
only one of the factors set forth in R.C. 2151.414(D)(1) need be resolved in favor of
permanent custody to support a finding that permanent custody is in a child’s best
interest and to terminate parental rights. In re J.C.-A, 8th Dist. Cuyahoga No.
109480, 2020-Ohio-5336, ¶ 80; In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-
Ohio-3818, ¶ 17; In re N.B. at ¶ 53. We review a juvenile court’s determination of a
child’s best interest under R.C. 2151.414(D)(1) for abuse of discretion. In re P.B., 8th
Dist. Cuyahoga Nos. 109518 and 109519, 2020-Ohio-4471, ¶ 76, citing In re D.A.,
8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47; see also 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.”). A juvenile
court abuses its discretion where its decision is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). A decision is unreasonable if there is ‘“no sound reasoning process that
would support that decision.’” In re C.D.Y., 8th Dist. Cuyahoga No. 108355, 2019-
Ohio-4987, ¶ 8, quoting Baxter v. Thomas, 8th Dist. Cuyahoga No. 101186, 2015-
Ohio-2148, ¶ 21. A decision is arbitrary if it is made “‘without consideration of or
regard for facts [or] circumstances.’” In re C.D.Y. at ¶ 8, quoting Black’s Law
Dictionary 125 (10th Ed.2014).
In addition to the best interest factors identified in R.C.
2151.414(D)(1), 2151.414(D)(2) sets forth a list of circumstances that, if all are found
to exist, mandates a finding that permanent custody is in the best interest of the
child. R.C. 2151.414(D)(2) states:
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 [R.C. 2151.414(E)] 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.
See also In re H.C., 7th Dist. Harrison Nos. 13 HA 5 and 13 HA 6, 2013-Ohio-5871,
¶ 32 (“[T]he R.C. 2151.414(D)(2) best interest test requires the court to find
permanent custody is in the child’s best interest and commit the child to permanent
custody of the agency if the four listed conditions are met.”).
R.C. 2151.414(D)(1) and 2151.414(D)(2) are “alternative means” for
determining whether permanent custody is in a child’s best interest. In re J.P., 10th
Dist. Franklin No. 18AP-834, 2019-Ohio-1619, ¶ 39-40 (“In determining the best
interest of a child, a juvenile court may apply one of two different tests. Under R.C.
2151.414(D)(1), the juvenile court weighs multiple factors * * * to decide whether
granting an agency permanent custody of a child is in that child’s best interest. On
the other hand, under R.C. 2151.414(D)(2), if the juvenile court makes the four
enumerated findings, permanent custody is per se in the child’s best interest and the
court ‘shall’ commit the child to the permanent custody of the agency.”); see also In
re M.P., 10th Dist. Franklin No. 10AP-478, 2010-Ohio-5877, ¶ 35 (“R.C.
2151.414(D)(2) sets forth the circumstances under which a trial court is required to
grant permanent custody, while the court employing the factors in R.C.
2151.414(D)(1) considers them to determine whether the best interests of the
children are served in granting the permanent custody motion.”). Where a juvenile
court determines that permanent custody is in a child’s best interest under R.C.
2151.414(D)(1), the court “need not also conduct [a] R.C. 2151.414(D)(2) analysis.”
In re J.P. at ¶ 40, citing In re T.P., 11th Dist. Ashtabula No. 2018-A-0001, 2018-
Ohio-1330, ¶ 27-28. If, however, any of the circumstances enumerated in R.C.
2151.414(D)(2) does not exist, then the juvenile court must proceed to a weighing of
factors set forth in R.C. 2151.414(D)(1) to determine what is in the child’s best
interest. See, e.g., In re K.H., 2d Dist. Clark No. 2009-CA-80, 2010-Ohio-1609, ¶ 54.
C. The Juvenile Court’s Best-Interest Determination
In this case, the juvenile court determined that CCDCFS had proven
by clear and convincing evidence that it was in the children’s best interest to be
placed in the permanent custody of the agency both after weighing the best interest
factors specified in R.C. 2151.414(D)(1) and because it found that all the enumerated
circumstances specified in R.C. 2151.414(D)(2) existed.
In its June 23, 2022 journal entries, the juvenile court identified, as
to each child, the factors it considered in determining that an award of permanent
custody to the agency was in the child’s best interest and set forth specific factual
findings explaining its evaluation of those factors. With respect to its findings under
R.C. 2151.414(D)(1), the juvenile court stated:
With respect to the best interest of the child, the Court has considered
the following factors under O.R.C. 2151.414(D)(1):
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, and foster caregivers and out-of-home
providers, and any other person who may significantly affect the child.
The child has a relationship with mother.
(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. GAL recommends permanent custody.
(c) The custodial history of the child, including whether the child has
been in temporary custody of a public children services agency or
private child placing agency under one or more separate orders of
disposition for twelve or more months of a consecutive twenty-two
month period. The child has been in the uninterrupted custody of
CCDCFS since January 2020.
(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. Child deserves a safe and stable
home/environment where her needs can be met and she can thrive.
The mother has failed to complete and benefit [from] case plan
services that led to the removal of the child. Father has failed to
engage in case plan services. No other relative or family member has
been identified as willing or appropriate to care for the child.
(e) Whether any factors in [R.C. 2151.414(E) (7) to (11)] apply in
relation to the parents and the child.
(Emphasis sic.)
With respect to its findings under R.C. 2151.414(D)(2), the juvenile
court stated:
Additionally, with respect to the best interest of the child, the Court
finds that pursuant to O.R.C. 2151.414(D)(2) that all of the following
apply:
(a) The Court determines by clear and convincing evidence that one or
more of the factors in [R.C. 2151.414(E)] 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 the 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 Ohio 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 Ohio 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 [c]ustody.
In determining that the children could not be placed with one of their
parents within a reasonable time or should not be placed with their parents under
R.C. 2151.414(D)(2)(a), the juvenile court further found, as to each child, that the
following factors set forth in R.C. 2151.414(E) applied:
The Court finds by clear and convincing evidence 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, pursuant to O.R.C.
2151.414(E):
(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.
(2) The chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the parent
(Mother) 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 (Mother and Father) 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.
(14) The parent (Mother and Father) for any reason is unwilling to
provide food, clothing, shelter, and other basic necessities for the child
or to prevent the child from suffering physical, emotional, or sexual
abuse or physical, emotional, or mental neglect.
(16) Any other factor the Court finds relevant: Mother has a pending
criminal case involving Robbery. Father has a pending criminal case
alleging Having Weapons While Under Disability. Father has never
made an appearance in court on this case.
Mother does not specifically challenge any of the particular factual
findings made by the juvenile court under R.C. 2151.414(D)(1), (D)(2) or (E).
Rather, she argues, generally, that “the record in this case does not contain
competent, credible, clear and convincing evidence to support a grant of permanent
custody” and that the juvenile court, therefore, abused its discretion in determining
that permanent custody was in the children’s best interest. Mother contends that
because (1) she has a good relationship with the children, (2) she completed most of
her case plan services and (3) she was taking steps to address her substance abuse
issues and obtain stable housing at the time of the permanent custody hearing, the
record did not support a finding, by clear and convincing evidence, that granting
permanent custody to the agency was in the children’s best interest.
In support of her argument, Mother points to the fact that the agency
had filed a motion to terminate temporary custody in August 2021, stating that she
had “completed case plan services” and that “the children should be reunified with
her.”6 Although Mother acknowledges the “unfortunate” “change in [her]
6
As detailed above, it appears that the agency’s statement (in its August 2021
motion to terminate temporary custody) that Mother had, at that time, “successfully
completed the case plan services,” including “substance abuse treatment,” was incorrect.
House testified that although Mother had completed an assessment, she had not, in fact,
completed substance abuse treatment services by August 2021. House indicated that
there was “a mix up,” that the prior CCDCFS case worker had relied on Mother’s self
reporting, which turned out to be incorrect, and that the prior CCDCFS case worker later
circumstances in December 2021,” she contends that “it was not something that
could not be rectified” and that the evidence presented at the permanent custody
hearing showed that she was “working hard” to do “exactly that.” Mother also points
out that, although she was still homeless at the hearing, she had obtained a housing
voucher, and that, although she was still testing positive for marijuana, she was
actively engaged in substance abuse treatment, “getting really involved with it really
deep” within “the last three weeks,” and that her marijuana “levels were going
down.”
Following a thorough review of the record in this case, we find that
competent, credible, clear and convincing evidence supports the juvenile court’s
findings under R.C. 2151.414(D)(2)(a)-(d) and (E)(1), (2), (4), (14) and (16),
mandating a finding that permanent custody was in the children’s best interest
under R.C. 2151.414(D)(2). Further, even if there had not been sufficient evidence
to mandate a finding that permanent custody was in the children’s best interest
under R.C. 2151.414(D)(2), we cannot say, based on the record before us, that the
juvenile court abused its discretion in concluding, based on its weighing of the
relevant factors under R.C. 2151.414(D)(1), that an award of permanent custody to
the agency was in the children’s best interest.
Although Mother completed certain of the services specified in her
case plan — i.e., parenting classes and a mental health and substance abuse
“recanted” this statement. No evidence was presented at the permanent custody hearing
contradicting House’s testimony regarding this issue.
assessment — and claimed to be “working hard” to complete others — i.e., engaging
in substance abuse services and obtaining a housing voucher — even “substantial
compliance with a case plan” is not, in and of itself, “dispositive” and “does not
preclude a grant of permanent custody to a social services agency.” In re J.B., 2013-
Ohio-1704, at ¶ 90, citing In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932
N.E.2d 360, ¶ 25 (8th Dist.). ‘“The issue is not whether the parent has substantially
complied with the case plan, but whether the parent has substantially remedied the
conditions that caused the child’s removal.’” In re J.B. at ¶ 90, quoting In re
McKenzie, 9th Dist. Wayne No. 95CA0015, 1995 Ohio App. LEXIS 4618, 11 (Oct. 18,
1995).
The record reflects that Mother was unable to consistently maintain
her sobriety and unable to consistently obtain and maintain suitable and
appropriate housing for her children. Although, by the summer of 2021, Mother had
made progress on her case plan objectives, it was when she was close to being
reunified with her children in the fall of 2021 that Mother’s progress derailed —
Mother again lost her housing, tested positive for substance use, stopped submitting
to urine screens and failed to appear for the hearing on the motion to terminate
temporary custody. Although, as of the time of the permanent custody hearing —
nearly nine months later and nearly two-and-a-half years after the children had been
first placed in agency custody — Mother was, once again, engaging in substance
abuse treatment services, she had “a long road” ahead of her. She was still using
marijuana (although her “levels” were reportedly declining) and had failed to
comply with repeated agency requests and court orders requiring her to submit to
random urine screens and a hair-follicle test. Likewise, although Mother had
recently obtained a housing voucher, she had not yet obtained housing, there was
no evidence in the record that Mother had taken any steps to seek appropriate
housing and, due to her recent felony charges for robbery and theft, she had
reportedly become ineligible for CMHA housing and the FrontLine housing
program in which she had been participating.
This is a difficult case. Mother clearly cares for her children and her
children care for her. However, in determining what is in a child’s best interest, the
existence of a biological relationship or even a “good relationship” or “bond” with a
parent is not controlling in and of itself. In re J.B. at ¶ 111, citing In re T.W., 8th
Dist. Cuyahoga Nos. 86084, 86109 and 86110, 2005-Ohio-6633, ¶ 15. “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. Although “[f]amily
unity and blood relationship are vital factors to carefully and fully consider,” the
“paramount consideration” is always the best interest of the child. In re J.B. at ¶ 111.
While Mother loves her children, has visited with them regularly and has a “good
bond” with them, two-and-a-half years after the children were removed from her
care, Mother continues to struggle with substance use, has not completed a
treatment program and is unable to provide stable, appropriate housing for her
children. Further, there is nothing in the record to indicate that Mother would be
able to consistently meet her children’s basic needs at any reasonable time in the
future.
Following a thorough review of the record, we find that competent,
credible, clear and convincing evidence presented at the permanent custody hearing
supports the juvenile court’s findings under R.C. 2151.414(B)(1), (D)(1)-(2) and (E).
We cannot say that the juvenile court erred or abused its discretion in determining
that an award of permanent custody to CCDCFS was in Ran.D. and Rai.D.’s best
interest.
Mother’s assignment of error is overruled.
Judgment affirmed.
It is ordered that the appellee recover from the appellant the costs herein
taxed.
The court finds that 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, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MARY EILEEN KILBANE, J., CONCUR