In re L.J.R.

[Cite as In re L.J.R., 2022-Ohio-1074.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE L.J.R. :
Minor Child : Nos. 110836 and 110847
:
[Appeal by Father, R.R., and :
Mother, B.W.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-17-908686
Appearances:
The Goldberg Law Firm and Adam Parker, for appellant
R.R.
Brian A. Smith Law Firm, LLC, and Brian A. Smith, for
appellant B.W.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Appellants, R.R. (“Father”) and B.W. (“Mother”), unmarried, filed
these consolidated appeals of the trial court’s termination of their parental rights to
their minor child L.J.R. and the award of permanent custody to the Cuyahoga
County Department of Children and Family Services (“CCDCFS”). We affirm the
judgment of the trial court.
I. Facts and Procedural History
L.J.R. had been previously adjudicated neglected, removed from
Mother’s custody, and committed to the legal custody of Father in September 2010.
In re L.R., Cuyahoga C.P. No. AD-10-910510. On June 2, 2017, CCDCFS filed a
motion for predispositional temporary custody and a complaint for temporary
custody based on neglect.
Preadjudicatory temporary custody was awarded to CCDCFS at the
August 18, 2017 hearing. The parties appeared represented by counsel at the
January 3, 2018 hearing and stipulated to an amended complaint to adjudicate the
child as dependent under R.C. 2151.04. The period of temporary custody was
extended on August 8, 2018, and December 4, 2018.
CCDCFS moved for permanent custody on April 24, 2019, and on
October 1, 2020, filed an amended motion to award legal custody to paternal
grandfather, H.R. (“Grandfather”). On April 26, 2021, the agency modified the
motion seeking permanent custody. On July 21, 2021, Father moved to grant legal
custody to Father or Grandfather.
The case was tried on August 3, 2021. The state presented two
witnesses: social worker Angela Scott (“Scott”) of Mohican Young Star Academy
(“Mohican”) and social worker Stacey Johnson (“Johnson”) with CCDCFS. L.J.R.’s
paternal aunt L.R. (“Aunt”), Grandfather, Father and social worker Keara Mullen
(“Mullen”) testified as Father’s witnesses. The guardian ad litem (“GAL”) provided
a recommendation.
A. Social Worker Johnson
L.J.R.’s case was assigned to Johnson in September 2020, and she
was familiar with the case history and file. L.J.R. was 12 years old at the time of the
trial. Johnson testified that L.J.R. was removed from Mother’s custody in 2010 and
custody was granted to Father due to Mother’s inability to meet the child’s medical
needs, provide stable housing, and address her own mental health issues.
L.J.R. had been diagnosed with attention deficit hyperactivity
disorder (“ADHD”), post-traumatic stress disorder (“PTSD”), oppositional defiant
disorder (“ODD”), and reactive attachment disorder (“RAD”). In 2017, L.J.R. was
still wearing training underwear and exhibited aggression and inappropriate
sexually aggressive behavior toward others. Father was also caring for another son,
C.R., who was one-year older than L.J.R.
Johnson stated Father “was overwhelmed with L.J.R.’s behaviors,
was demonstrating excessive discipline, and showing unstable mental health within
himself.” (Tr. 38.) The agency was concerned with Father’s inability to manage his
anger and sought removal of L.J.R. from his care. Mother was not consistently
involved with L.J.R. and the agency was not sure that Mother’s mental health issues
had been resolved. The agency determined that Father was able to meet the needs
of C.R. who did not have special needs issues and C.R. was allowed to remain with
Father.
CCDCFS’s placement attempts for L.J.R. were difficult. A family
member’s placement was unsuccessful after six weeks because they could not meet
L.J.R.’s treatment needs. A 13-month placement in specialized foster care ended
due to charges of neglect and abuse of L.J.R. and the other foster children in the
home. (Tr. 41.) An 18-month placement in specialized care ended when L.J.R. was
placed with Grandfather. Placement with Grandfather ended 64 days later when
L.J.R. became angry with Grandfather and pushed him over a coffee table after
Grandfather confronted him for inappropriately touching the grandmother.
Johnson also testified that Father and L.J.R. told her that a named female raped
him, and that two other people were involved during the period of an earlier
placement.
Johnson advised that L.J.R. received group and independent therapy
during his placements and was enrolled in a program for at-risk children with sexual
behaviors shortly before placement with the paternal grandparents. At the
recommendation of Fairview Hospital, L.J.R. was placed at Mohican in January
2021, for a more restrictive therapeutic environment where L.J.R. receives one-on-
one supervision due to his impulsive behaviors and multiple therapies. (Tr. 91.)
Johnson receives incident reports from Mohican of L.J.R.’s inappropriate sexual
behavior or aggression “once, twice, maybe three times a day” and received 17
reports the month before trial. (Tr. 46.)
1. Visitation
For the first few months after the agency received temporary custody
in 2017, the parents consistently visited L.J.R. for biweekly two-hour periods
accompanied by a visitation coach who assisted with managing L.J.R.’s behaviors.
The parents’ attendance remained constant when the schedule was changed to
weekly visits with visit coach assistance. By December 2018, the parents were
allowed weekly unsupervised visits for up to four hours at Father’s home or in the
community. Johnson advised that the parents participated wholeheartedly and
were patient with L.J.R. with the guidance of the visit coach.
By February 2019, L.J.R.’s aggressive behaviors began to increase,
and Father’s visitation was terminated.
The visits stopped for the reasons of L.J.R.’s behavior, dad’s irregular
mood swings, aggressive behavior, and those [sic] and they were
stemming from those unsupervised visits. And also at the time, the
therapist had expressed to dad that with L.J.R.’s inappropriate sexual
behavior, he needed to constantly have someone to supervise him, and
dad was not in agreement to that level of supervision for his son.
***
[Father’s] anger was escalated to uncontrollable heights. There were
aggressive threats that were being made.
***
Threats to Children and Family Services staff, to the foster dad, and to
the school representatives who were there at the meeting.
(Tr. 51-52.)
Mother was allowed to continue weekly two-hour visits in the
community. In April 2020, Mother’s visits stopped, and the agency was unable to
contact her. Johnson was able to establish contact with Mother in February 2021
when Father provided a telephone number. Based on the file, it did not appear to
Johnson that Mother attempted to contact the agency during that period.
Weekly two-hour supervised visits were granted to Father when
L.J.R. was placed at the home of the paternal grandparents in November 2020.
Johnson observed during visits that the family was bonded but Father still struggled
with L.J.R.’s behaviors.
L.J.R. was placed at Mohican in January 2021. Due to COVID, Father
and Grandfather visited L.J.R. by Zoom every other Sunday and each was allowed
one telephone call per week. In-person visitation was reinstated in March 2021, and
Father and Grandfather visited every other Sunday under staff supervision.
Arrangements were made for Mother to begin visits in February, but Mother’s sole
visit occurred the Sunday prior to trial.
2. Case-Plan Objectives
a. Father
Father’s case objectives were anger management, parenting,
psychiatric evaluation, a recommendation to follow all prescribed services, and
suitable housing.1 Father completed anger management in 2017. Johnson stated:
1 Father indicated to the agency at the time the plan was prepared that he was
moving to a new residence and was compliant with the housing requirement at the time
of trial.
Taking over the case originally, my first encounter was over the
telephone during an SAR meeting with [Father]. He was very upset,
yelling, would not let us get words in edgewise during the conversation,
whenever the conversation was going in a direction that he was not
comfortable with. He was shouting, he was loud, he was angry, he — it
took — there was a social worker * * * that would calm him down and
refocus him and engage him back in the conversation where he could
engage with us appropriately.
(Tr. 61.) “It made me concerned for L.J.R. and his behaviors in [Father’s] care
because they can become very challenging.” Id. Johnson added that as of the time
of trial, she believed Father “has his anger management in a place that he is trying
very hard to manage it. I cannot say he has completely overcome it.” (Tr. 63.)
Father also completed a parenting class in 2017 and a nurturing class
in 2018. Johnson observed Father exercise restraint and attempting to talk things
through with L.J.R. but remained concerned due to L.J.R.’s intellectual age of six to
eight years and continued inappropriate behaviors. Father, Grandfather, Mother
and Mother’s fiancé were to be included in a parenting class that had been
specifically designed for L.J.R. by Rainbow Babies and Children’s Hospital
(“Rainbow Hospital”) just a few months prior to trial.
Father attended the first class that was held on July 30, 2021. The
class was scheduled to continue until L.J.R. could also participate and Father could
learn a “discipline pyramid * * * can utilize in connection with L.J.R. and his
behaviors” once L.J.R. could be released to Father. (Tr. 82.) The class was expected
to continue indefinitely based on the unique design and unpredictable period of
assimilation between the parents and L.J.R.
Father’s 2017 mental health evaluation was inconclusive, and the
2018 evaluation recommended individual psychiatric counseling for anxiety and
depression. Father has been attending the appointments and takes his medication.
Johnson conceded that the second extension for temporary custody was due to the
child’s behavior and not due to Father’s failure to comply with his case plan.
b. Mother
Mother’s case plan was for her to submit for psychiatric evaluation
and to develop a relationship with L.J.R. Mother attended the evaluation but
Johnson could not discern from the case file why Mother did not follow up for the
assessment. Mother was diagnosed with a bipolar disorder in 2010 that was not
being treated. Mother denied shortly prior to trial that she has mental health
concerns.
The requirement to develop a relationship with L.J.R. was imposed
due to gaps during L.J.R.’s childhood where Mother was not involved and the
unexplained lack of visitation or communication in 2020 to early 2021. In addition
to the single Mohican visit the Sunday before trial, L.J.R. initiated contact with
Mother on her birthday in February or March 2021. Mother participated in agency
meetings regarding L.J.R. between 2017 to early 2019.
After Johnson reestablished contact with Mother in February 2021,
she visited Mother at home on February 20, 2021, and several times thereafter.
Johnson informed Mother that she had been placed on the visitation list right away,
though Mother called Johnson several times after that meeting and asked whether
she was on the Mohican list. Johnson confirmed that Mother could have attended
Rainbow Hospital sessions but did not attend the first and only meeting held prior
to the trial.
c. Best interest of L.J.R.
Johnson testified that the grant of permanent custody to the agency
was in L.J.R.’s best interest:
L.J.R.’s mental health and his behaviors are — are so complex, and
right now he is in a treatment facility that is providing all of those needs
and that supervision for L.J.R. And even being in the midst of this
facility with all of this certified staff, they still have to employ one
person that is actually with L.J.R. and to provide L.J.R. with the
supervision that he needs to keep himself safe and other — and his
peers in that facility safe.
(Tr. 74.)
Johnson did not believe the parents could provide a safe and
permanent home for him in the foreseeable future.
Where [Father] is concerned, we had an evaluation that was done by
Rainbow Babies & Children’s [Hospital] that spelled out everything
that L.J.R. would need, and instead of following going to those
providers, dad has gone and found providers that he feels that could do
better for L.J.R. without them seeing the information, the referrals, or
the recommendations, so it leads me to believe that he would not carry
out the things that are actually giving L.J.R. the progression that he’s
having today. His structured environment, the therapeutic therapy
that he needs, and provide those needs for him.
(Tr. 75.)
Johnson also opined that Father did not seem to understand the level
of care that L.J.R. required and that Father had not arranged for doctors and a
school for L.J.R. as he claimed.
Because none of those doctors or even that school has reached out to
Children and Family Services or myself to find out the details or any
recommendations or contact anyone at Mohican to find out exactly
L.J.R.’s diagnosis and his help that is — his treatment that is needed.
(Tr. 47.)
As to Mother, Johnson said:
[Mother] has only been involved shortly — a short time, so I can’t really
make a prediction because I don’t see the interaction between her and
L.J.R. I don’t see her involved in his treatment plan to be able to say
one way or the other, but since she’s not aware of these behaviors one-
on-one, I find it — I feel that it would be very difficult for her to provide
for him.
Id.Due to the physical incident that required L.J.R.’s removal from
Grandfather’s residence and L.J.R.’s challenges, Johnson did not believe that
Grandfather would be able to meet L.J.R.’s needs. Johnson conceded that
residential treatment facility placement was recommended for L.J.R. in 2019 but
was deemed unfeasible due to his age. Mohican requested L.J.R.’s removal during
his first month for fear of influences of the older children regarding L.J.R.’s
behaviors. L.J.R. was still wearing training underwear and exhibited aggressive
sexual behaviors upon his arrival at Mohican.
Johnson did not believe that L.J.R. could be reunified with Father or
Grandfather for at least the next few years because L.J.R. needed to complete the
Mohican program. Johnson explained during cross-examination by Father that she
had applied for L.J.R. to receive assistance from the Board of Developmental and
Disability Services (“BOD”) due to his cognitive age of approximately six years old.
Johnson: I actually have a recommendation into them right now.
I’m waiting to get a full acceptance of what services could
be offered through them.
Counsel: Okay. And do you know why [L.J.R.] wasn’t connected to
the Board of DD prior to you being on this case?
Johnson: No, I do not.
Counsel: Do you know if that was ever even a discussion?
Johnson: To my knowledge, I do not.
Counsel: Okay. And the Board of DD can also provide services for
[L.J.R.]; is that correct?
Johnson: It is correct.
(Tr. 93-94.)
Johnson also testified that the agency requested that the trial court
hold the motion for permanent custody in abeyance to see how L.J.R. progressed at
Mohican. The agency filed the current motion for permanent custody after the trial
court refused to allow another continuance. (Tr. 96.) At the time of trial, L.J.R. had
been in agency custody for four years. Jackson could not say that L.J.R. would
complete the Mohican program by his 18th birthday.
B. Social Worker Scott
Scott was employed by Mohican and served as a therapist under
licensed therapist oversight. Scott provides individual counseling biweekly to L.J.R.
and group counseling weekly.
Scott testified that L.J.R. arrived at Mohican with a history of “quite
a bit of trauma in his past” and described L.J.R.’s behavior since his arrival at
Mohican. (Tr. 18).
[L.J.R.] has very ― very intense behaviors. His ― basically, he came to
us presenting with very sexualized behaviors, including sexually
inappropriate comments, suggesting sexual acts with ― or requesting
sexual acts with both peers and staff. He is — he often — He’s very
impulsive, so he will grab the genitalia of peers and staff, especially
female staff. It’s — he’s very impulsive and he has very sexualized
behaviors.
(Tr. 17.)
Also,
[w]hen [L.J.R.] was first admitted, he was demonstrating [the
behaviors] probably the majority of the day. I would say anywhere
from 25 to 50 times between the comments, the gestures, the — the
actual actions of grabbing people.
(Tr. 17-18.)
Scott added that L.J.R.’s undesirable behaviors have decreased to
some extent:
We do have incident reports here that we keep track of, and as I am
completing his monthly progress reports, I am finding that he is having
less of those incidents, but they are still definitely occurring still
numerous times a week.
***
He also does have some physical and verbal aggression, mostly in a
reactive state with his peers.
(Tr. 18-19.)
Scott also advised that L.J.R. has one-on-one supervision during
waking hours and constant night checks. Male staff members are assigned to reduce
the temptation to engage in sexual behaviors.
Regarding an estimated release date for L.J.R., Scott explained:
Typically, when we are still in the first couple phases of their treatment,
we — we push out the estimated date about nine months, six to nine
months, and the reason being is in the — Mohican is a five-phase
system, and the first phase is orientation, the second phase is learning,
and it often takes more than the typical amount to deal with all of the
past traumas and behaviors, so the end point is harder to determine or
make a guess.
***
Until they get on the third phase or even the fourth phase, it’s very
difficult to determine an estimated discharge date.
(Tr. 29-30.) L.J.R. “is on the learning phase.” (Tr. 34.)
C. Grandfather
Grandfather testified that he has a close relationship with L.J.R.
Father and L.J.R. lived at Grandfather’s home from 2010 until 2014 when they
moved nearby. Grandfather continued to remain closely involved including during
L.J.R.’s placements when allowed.
L.J.R. was on multiple medications when he was placed with
Grandfather in 2020 but Grandfather said that L.J.R. “was just not doing right.”
(Tr. 119-120.) Grandfather called Johnson who instructed him to take L.J.R. to the
Fairview Hospital psychiatric ward.
Grandfather stated the visits at Mohican have gone well. “[H]e has
settled down a whole lot, and he’s [calmer] now. They’ve got him on the proper
medications. And he seems to be doing pretty good.” (Tr. 121.) Grandfather also
testified that L.J.R. has a great relationship with Father and sibling C.R. and has
always wanted to live with Father. Grandfather added that Father called CCDCFS
for help with L.J.R. because he could not find it anywhere else. Grandfather opined
that granting permanent custody will “be the end of [L.J.R.]. He’ll have no hope
left.” (Tr. 122.) Grandfather offered to assume custody if Father was denied.
However, he admitted that he cannot provide the level of care that L.J.R. requires.
D. Paternal Aunt
Aunt confirmed L.J.R.’s attachment to Father and positive
relationship among family members. Aunt also said that L.J.R. has begged to go
home to Father and added, “I am in a position to be there for [Father] whenever he
needs me.” (Tr. 136.) Regarding L.J.R.’s behavioral problems, Aunt stated:
My understanding — L.J.R. went through a lot, and we didn’t know in
the beginning what was going on with him. And when we found out, it
all made sense. My heart goes out to him and we just want to be there
for him. And I just feel like the situation that he’s in now [with social
services], kids don’t do well in that situation, they don’t. They don’t
thrive. They need family. They need love. And we love him. We would
never do anything to hurt him.
(Tr. 135.)
Aunt also found fault with the agency.
They’ve never given our family a chance. I do not even know who [the
social worker] is. I have never met her. I talked to her one time on the
phone. I do not even know her name. But — and none of them have
given us a chance. If they were to get to know us, they would find out
we are not what is going on.
[Social services] have had him in every home that has beaten him,
verbally abused him, and sexually abused him. When he was with my
brother, none of that — my brother did none of that to him. But in
social service’s custody, he has been in multiple homes that have done
that to him.
(Tr. 137-138.)
Aunt admitted that part of L.J.R.’s trauma occurred before he was in
agency custody but stated that Father had been trying to get help for L.J.R. since
L.J.R. was three years old. Aunt also named the people that L.J.R. accused of
molesting him while in temporary custody.
E. Social Worker Mullen
Father’s final witness was Keara Mullen, a social worker for the
Cuyahoga County Office of the Public Defender. Mullen was assigned to Father’s
case in December 2018 while employed with the juvenile division and retained the
case thereafter. Mullen testified about the lack of cooperation by the agency prior
to Johnson’s assignment to the case, disruptions in the provision of medications and
therapy for L.J.R., and other difficulties encountered by Father up to the time of
trial.
The initial agency social worker failed to respond for several weeks to
a request from Mullen to schedule Father’s second psychological evaluation and the
email response that was finally received contained misinformation. Mullen called
the worker who agreed a psychological evaluation referral would be issued in March
2019. Mullen first learned that Father’s visitation was suspended at the agency’s
request when checking the court docket. A motion was filed to reinstate visitation.
Mullen attended the semiannual review (“SAR”) meeting for Father’s
case plan in May 2019. Father and Grandfather were present as well as the agency
social worker and her supervisor. Mullen stated the atmosphere was extremely
tense. The worker turned her back to the attendees at the meeting table and would
only address the facilitator or the agency supervisor.
Mullen inquired about the psychological evaluation referral, and the
agency worker announced to the facilitator that Father refused to sign a release. The
agency worker handed the release to the supervisor to hand to Mullen to hand to
Father though all were sitting at the same table. The evaluation was finally
conducted in July.
Mullen cited additional perceived deficiencies in the way the case was
being conducted and decided to become more active. Mullen referenced as an
example of particular concern that the handwritten record of the SAR meeting
distributed by the facilitator and signed by the attendees was “drastically different
than the typed SAR that was filed that still had my name attached to it as a signature,
because that was certainly not what happened at the SAR.” (Tr. 157.) “[I]n the
typewritten one that was filed, there was mention of allegations against the father of
comments that were made that were never discussed in the SAR.” Id.Mullen discovered that L.J.R.’s therapies and medications were
disrupted during the multiple placements. For example, no therapy was
administered from the April 2019 foster home removal to at least August 2019.
After the initial social worker was replaced, Mullen reached out to the agency
supervisor to see whether supervised visitation could be arranged for Father.
Mullen also discovered that a forensic interview with L.J.R. was conducted at the
Domestic Violence Child Advocacy Center in December 2019 regarding the alleged
sexual abuse of L.J.R. As of the time of trial, Mullen was unable to find out the status
of the investigation.
The interaction with the agency improved when Johnson took over
L.J.R.’s case. Mullen found Johnson and her supervisor to be capable and
compassionate toward Father. At the March 2021 meeting with the agency, Mullen
learned of the pending withdrawal of the motion to grant legal custody to
Grandfather and reactivation of the permanency motion. Mullen stated she was told
the change was due to the family’s inability “to afford the residential care that the
child was receiving.” (Tr. 175.)
At the May 2021 meeting with the Rainbow Hospital’s medical team,
Mullen, Father, and Grandfather learned that L.J.R. had been misdiagnosed.
Mullen: I have a mental health background, and so my
understanding of it was the ADHD symptoms were
misinterpreted, and so he was misdiagnosed with the
ADHD. And, in fact, those symptoms usually stereotyped as
ADHD were more actually trauma responses, from his
trauma history, and so he — like his RAD diagnosis, ADHD
diagnosis, that kind of stuff was ruled out by the providers
and there was a more accurate diagnosis of PTSD.
(Tr. 176.) Thus, the medication and therapy protocols that L.J.R. had been receiving
were not designed for PTSD.
Mullen participated in the SAR conference all that month and stated
the participants were calm and cooperative. “It was my impression that, obviously,
the family wanted to be reunified, but [the family] also understood that * * * the
child needed continued services.” Id.Mullen and Johnson continued to pursue options for custody to
remain with the family:
So after the SAR, it came to my attention from a conversation I had with
[Johnson], as well as my own research into options for both child
welfare and delinquent kids who need residential [treatment], like how
do people afford it, but it is actually an option through the Board of
Developmental Disabilities to have people maintain custody — parents
maintain custody while their child’s necessary services are continued if
they’re involved with the Board of DD. And so I had a conversation
with [Johnson] in June about how she was going to explore that
possibility.
(Tr. 177.)
During cross-examination, Mullen was asked whether the agency
considered less restrictive options prior to filing for permanent custody. Mullen
responded, “Not the least restrictive, no. * * * They never considered Father.”
(Tr. 182.)
F. Guardian Ad Litem
The GAL recommended awarding permanent custody to the agency.
[L.J.R.] does have massive needs, he does. And no one person that I
have seen can adequately address them. He has been in foster homes,
and there have been a couple of them that were good people and
capable and they have had kids that have had a lot of needs before, but
this was a little different thing all together.
There was testimony that he needs to be supervised morning, noon and
night, 24 hours a day. And that is 100 percent certain.
(Tr. 187.)
The GAL’s testimony and reports reveal that L.J.R. is incapable of
“coherently expressing his wishes and desires in regard to his legal situation.” GAL
report, p. 1 (July 6, 2021). “The minor child has serious behavioral issues and very
low intellectual functioning but also an understanding of sexual activity well beyond
his years.” Id. The GAL added that L.J.R. did not disclose to the Cuyahoga County
prosecutor’s office that any sexual abuse had occurred.
The GAL concluded that both parents have limited intellectual
abilities and would not be able to address L.J.R.’s needs if L.J.R. was to “return
home.” Id. at p. 3.
My first thought is that kids should be with their parents. Everybody
in this room does. But there is just no way in my estimation that
[Father] right now or in the foreseeable future can provide the care * * *
that [L.J.R.] needs. And it is unfortunate because I know he wants it.
(Tr. 188.)
As to the paternal grandparents, the GAL stated that he originally
recommended that they be given a chance. The GAL determined the grandparents
were “well-meaning,” appropriate care givers who could provide for basic needs but
could not manage L.J.R.’s special needs as evidenced by the incident requiring
L.J.R.’s removal from their custody.2 (Tr. 188.)
Though the GAL stated that L.J.R. is unable to indicate his wishes,
the GAL offered that L.J.R. is “content where he’s being cared for.” (Tr. 189.)
2 The grandmother passed away shortly after that incident.
I know he loves his father and I know he has a bond with his father, and
even his brother, for that matter, but — You know, I gave him, as you
said, an opportunity to express all his wishes, and he has in his way.
But I won’t lead him down a path as to what to say and how to say it, if
that’s what you’re asking me to do.
***
Did he ever say I want to go live with my daddy directly to me? No. But
do I think that’s probably what he wants? Yes, I do. I truly do.
(Tr. 190-191.)
The GAL visited L.J.R. via Zoom at Mohican in January and July
2021, but conducted no in-person visits. The GAL added that usually L.J.R. did not
answer the GAL’s questions because L.J.R. was so “jumpity.” (Tr. 193.) However,
the Mohican counselor advised the GAL that L.J.R.’s behaviors were improving with
proper counseling and medication. The GAL also said that he did “not think [that]
before [L.J.R.] went [to Mohican] he was regularly taking his medication.” Id.
The GAL decided that permanent custody to the agency is in L.J.R.’s
best interest because L.J.R. “needs to be in a group home setting where he has
constant supervision and access to professionals.” Id. at p. 3.
It is the recommendation of the undersigned that the child remain
outside the home and that the child remain in a group home setting. It
is the recommendation of the undersigned that the CCDCFS motion for
permanent custody be granted.
It is the further recommendation of the undersigned that temporary
custody be continued until further order of court. My ward needs to
stay in the current residential facility so his specialized needs can be
addressed.
GAL report, p. 4 (Jan. 27, 2020).
G. Judgment
The parties submitted findings of fact and conclusions of law. On
August 30, 2021, the trial court granted permanent custody to the agency. On
September 8, 2021, the trial court issued a nunc pro tunc to clarify that the parental
rights and responsibilities of both Father and Mother were terminated.
Father and Mother appeal separately. The cases are consolidated for
appeal.
II. Assignments of Error
A. Father’s Assignment of Error
The trial court abused its discretion by awarding permanent
custody to CCDCFS.
B. Mother’s Assignments of Error
I. The trial court’s grant of permanent custody to CCDCFS
was against the manifest weight of the evidence.
II. The trial court’s grant of permanent custody was in error
because CCDCFS did not show that it made “reasonable
efforts” to reunite the family pursuant to R.C. 2151.419.
III. Permanent Custody
It is undisputed that
[t]he 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). However, this
right is not absolute. It is “‘always subject to the ultimate welfare of the
child, which is the polestar or controlling principle to be observed.’” In
re L.D., 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).
In re I.R., 2021-Ohio-3103, 179 N.E.3d 138, ¶ 54 (8th Dist.)
Also,
[b]ecause termination of parental rights is “‘the family law equivalent
of the death penalty in a criminal case,’” In re J.B., 8th Dist. Cuyahoga
No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio
St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14, it is “an alternative of
last resort,” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242,
¶ 21. It is, however, “sanctioned when necessary for the welfare of a
child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-
Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d
812 (9th Dist.1994). “‘All children have the right, if possible, to
parenting from either natural or adoptive parents which provides
support, care, discipline, protection and motivation.’” In re J.B. at ¶ 66,
quoting In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090(8th Dist.1996). Where parental rights are terminated, the goal is to
create “a more stable life for 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).
Id. at ¶ 55.
IV. Standard of Review
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).
The focus in a best interest determination is on the child, not the
parent. In re P.B., 8th Dist. Cuyahoga Nos. 109518 and 109519, 2020-Ohio-4471,
¶ 76, citing In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 59.
When determining the child’s best interest pursuant to R.C. 2151.414(D)(1), courts
analyze the following factors: (a) the interaction and interrelationship of the child
with others; (b) the wishes of the child; (c) the custodial history of the child; (d) the
child’s need for a legally secure placement and whether such a placement can be
achieved without permanent custody; and (e) whether any of the factors in divisions
R.C. 2151.414(E)(7) to (11) apply.
“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.” Id. at ¶ 76, citing 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
needs to be resolved in favor of permanent custody to terminate parental right.” Id.
at ¶ 77, citing In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-Ohio-3818, ¶ 17; In re
N.B. at ¶ 53.
We also recognize that “[a] juvenile court has considerable discretion
in weighing the factors set forth in R.C. 2151.414(D)(1).” In re P.B. at ¶ 77, citing id.When reviewing a juvenile court’s judgment in child custody cases, the Ohio
Supreme Court has stated that the “court’s decision in a custody proceeding is
subject to reversal only upon a showing of abuse of discretion.” In re A.J., 148 Ohio
St.3d 218, 2016-Ohio-8196, 69 N.E.3d 733, ¶ 27, citing Davis v. Flickinger, 77 Ohio
St.3d 415, 417, 674 N.E.2d 1159 (1997). An abuse of discretion “implies that the
court’s decision was unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
V. Law and Analysis
We combine the errors for ease of analysis. The trial court has
authority to grant permanent custody to CCDCFS where, as in this case, a child has
been adjudicated as neglected, dependent, or abused.
When an agency files a permanent custody motion under R.C. 2151.413
after obtaining temporary custody, the guidelines and procedure set
forth under R.C. 2151.414 apply. Division (B) of R.C. 2151.414 sets forth
a two-prong analysis to be applied by a juvenile court. Pursuant to this
division, before a trial court can terminate parental rights and grant
permanent custody to a county agency, the court must find by clear and
convincing evidence (1) the existence of any one of the conditions set
forth in R.C. 2151.414(B)(1)(a) through (e), and (2) that granting
permanent custody to the agency is in the best interest of the child.
In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 45 (8th Dist.).
“Only one of the four factors must be present for the first prong of the
permanent custody analysis to be satisfied. Once the juvenile court ascertains that
one of the four factors listed in R.C. 2151.414(B)(1) is present, then the court
proceeds to an analysis of the child’s best interest.” In re J.B., 8th Dist. Cuyahoga
No. 98565, 2013-Ohio-1705, at ¶ 80-81.
L.J.R. was initially adjudicated neglected and legal custody was
removed from Mother and granted to Father in September 2010. The agency moved
for temporary custody in the instant case on June 2, 2017. As the trial court
journalized:
The Court finds that the child has been in temporary custody of
CCDCFS for twelve or more months of a consecutive twenty-two-
month period. The child was placed in the custody of CCDCFS in
October 2017, sixty (60) days after the initial removal, and the motion
for permanent custody was filed more than three years later in April
2021.
Journal entry No. 0914994779 p. 3 (Aug. 30, 2021.) The child remained in
temporary custody throughout the period, for almost four years. Thus, the first
prong under R.C. 2151.414(B)(1)(d) has been satisfied. See In re N.M.P., 160 Ohio
St.3d 472, 2020-Ohio-1458, 159 N.E.3d 241, ¶ 29.
Moving on to the best interests of the child pursuant to
R.C. 2151.414(D)(1) and 2151.414(E)(7) to (11), the trial court stated:
Upon considering the interaction and interrelationship of the child
with the child’s parents, siblings, relatives, and foster parents; the
wishes of the child; 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’s need for a legally secure
permanent placement and whether that type of placement can be
achieved without a grant of permanent custody; and, the report of the
Guardian ad Litem, the Court finds by clear and convincing evidence
that a grant of permanent custody is in the best interests of the child
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.
Journal entry No. 0914994779, p. 3 (Aug. 30, 2021).
There is no dispute that L.J.R. has significant special needs and is
finally, after multiple placements, hospitalizations, and crisis interventions, in a
location that is truly in his best interest. The record shows that the family,
particularly Father and Grandfather, are closely bonded with L.J.R. Father and
Grandfather have been working toward reunification. Father completed all agency
requirements and is still undergoing counseling on his own volition.3 Grandfather
has also been involved in the agency meetings and was a candidate for legal custody
until the December 2020 incident, and Grandfather and Father have remained
closely involved with L.J.R.
We also observe that Rainbow Hospital determined during the April
2021 evaluation of L.J.R. that the child was being medicated and treated based on
inaccurate diagnoses. As Johnson shared, “we came to the conclusion” that they
would have to employ “different techniques that are used with L.J.R. than the
techniques that dad was taught in those parenting classes.” (Tr. 65.) The Rainbow
Hospital parenting class was “designed exclusively for L.J.R.” (Tr 63.) Grandfather
and Father participated in the single meeting held on July 30, 2021, just a few days
prior to trial, and testified that they planned to continue to attend.
3 According to the testimony, Father had been seeking help for L.J.R. for years and
the agency filed for custody because Father contacted them for help in managing L.J.R.’s
unique needs. This fact, coupled with the lack of responsiveness of the prior social
worker, may have contributed to the frustration that Father angrily voiced that resulted
in his temporary suspension from visitation.
Mother did not attend the first Rainbow Hospital meeting but
requested that she and her fiancé be permitted to attend.4 Also, Mother endorses
the grant of legal custody to Father or Grandfather and desires to work on her
relationship with L.J.R.
What the record does not reveal is how the misdiagnoses may have
impacted L.J.R.’s behavior and development over the years, though the record does
confirm that there were periods of time that L.J.R. was not receiving any of the
prescribed medication or therapy during his placements. It also confirms by the
agency’s own admission that the parenting classes that Father was required to
attend and did complete could not and did not prepare him to deal with L.J.R.’s
issues.
We also observe that as of April 2021, the agency’s motion to award
legal custody to Grandfather was still pending. At the April 5, 2021 pretrial, the
agency requested a continuance of the agency’s motion to grant legal custody to
Grandfather due to L.J.R.’s placement at Mohican and the ongoing evaluations for
treatments. Agency counsel advised the court at the pretrial:
So at this time, we are asking that that motion be continued. We do
understand from this Court’s last Journal Entry that no further
continuances will be granted, and the Agency did meet and hold a
staffing, and the back-up plan would be to file for permanent custody
at this point if the child cannot be stepped down due to the trial court’s
journal entry that no further continuances will be granted, and the
agency did meet and hold a staffing, and the back-up plan would be to
4 Johnson stated she could not make a prediction about Mother’s reliability due to
the gap in her involvement with L.J.R. “I do not see her involved in his treatment plan to
be able to say one way or the other, but since she’s not aware of [L.J.R.’s] behaviors one-
on-one, I find it — I feel that it would be very difficult for her to provide for him.” (Tr. 75.)
file for permanent custody at this point if the child cannot be stepped
down [to the next phase of the Mohican plan].
(Tr. 5.) Pretrial, p. 5 (Apr. 5, 2021).
The agency also informed the trial court of the in-depth evaluation
that Rainbow was going to perform later in April.
The appointment is [on] the 27th, again, and then a week after that,
they will meet with everyone, the staff at Mohican, dad, myself, and
we’ll be able to sit down and actually find out everything that’s going on
with L.J.R. and come up with a productive plan for him.
(Tr. 5.) Pretrial, p. 7 (Apr. 5, 2021). The GAL requested a copy of the Rainbow
Hospital report when issued. “I have been waiting for this for a long while, so I want
to make sure I get a copy of it when it’s prepared so I know — I have been saying this
had to be done a long — for a long time.” (Tr. 9.) Pretrial, p.9 (Apr. 5, 2021). The
trial judge granted a continuance to June 2, 2021. On May 25, 2021, the June
hearing was cancelled.
According to the record, the next proceeding was the July 6, 2021,
arraignment. Mother did not attend the April pretrial but appeared at the
arraignment due to the agency’s filing to move forward with permanent custody. In
response to the trial court’s inquiry as to what type of hearing should be scheduled
next, the GAL recommended that the next hearing be a trial since “we have pretried
this case to death. * * * It’s ready to go.” Id. at tr. 13-14.
The record supports the efforts of Grandfather and Father to retain
custody of L.J.R. and to continue working with Rainbow Hospital under the
personalized case plan formulated a few months before trial when Rainbow Hospital
rendered the proper diagnosis of L.J.R.’s special needs. The record does not reflect
whether the agency was able to determine whether BOD would finance the Mohican
services if legal custody to Grandfather or Father was granted. While Mother’s
visitation is sporadic, she states on appeal that she would like visitation rights while
L.J.R. is in Grandfather’s or Father’s legal custody to nurture the relationship. The
trial court and all of the parties agreed that L.J.R. requires special residential care
such as that provided by Mohican, but the parents and Grandfather are unable to
afford such services.
The trial court listed its findings of fact and determined that the
allegations of the motion for permanent custody had been proven by clear and
convincing evidence, and there was probable cause for removal under R.C. 2151.31.
Also,
that reasonable efforts were made to prevent the removal of the child
from her home, or to return the child to the home, and to finalize the
permanency plan, to wit: reunification. These services included
parenting courses, mental health evaluations and treatment, and anger
management treatment.
Journal entry No. 0914994779, p. 3 (Aug. 30, 2021).
The trial court recognized that Father had “demonstrated compliance
with case plan objectives and substantially completed each requirement.” Id. at p. 4.
“However, completion of a case plan does not in and of itself require that children
be reunified with parents who have failed to remedy the conditions which led to the
removal in the first place.” Id., citing In re J.L., 8th Dist. Cuyahoga No. 84368,
2004-Ohio-6024.
The trial court added,
The statute requiring the Agency to demonstrate that it has made
reasonable efforts to prevent the removal of the child, to eliminate the
continued removal of the child from the home, or to make it possible
for the child to return safely home does not apply to motions for
permanent custody. In re B.S., 2009-Ohio-5497, citing In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104.
Id. The motion for legal custody to Grandfather was also denied.
We reiterate that
[t]he discretion which the juvenile court enjoys in determining 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 determination will have on the lives of the parties
concerned. Moreover, the knowledge the juvenile court gains at the
adjudicatory hearing through viewing the witnesses and observing
their demeanor, gestures and voice inflections and using these
observations in weighing the credibility of the proffered testimony
cannot be conveyed to a reviewing court by a printed record. See
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273,
1276 (1984); cf. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846(1988). Hence, this reviewing court will not overturn a permanent
custody order unless the trial court has acted in a manner that is
arbitrary, unreasonable or capricious. See Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140, 1142 (1983) (defining “abuse of
discretion”).
In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).
We cannot say that the trial court abused its discretion or that the
judgments are against the manifest weight of the evidence. The assignments of error
are overruled.
VI. Conclusion
The trial 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 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.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
CORNELIUS J. O’SULLIVAN, JR., J., and
MARY J. BOYLE, J., CONCUR