In re N.T.

[Cite as In re N.T., 2023-Ohio-1291.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE N.T., ET AL. :
: Nos. 111924 and 111925
Minor Children :
:
[Appeal by D.L., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 20, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD19914398 and AD19914400
Appearances:
Wargo Law, LLC and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
EILEEN T. GALLAGHER, P.J.:
Mother-appellant, D.L. (“Mother”), appeals from the juvenile court’s
judgment granting permanent custody of her minor children, N.T. and J.T., to
appellee, Cuyahoga County Division of Children and Family Services (“CCDCFS” or
“the agency”). Mother raises the following assignment of error for review:
The trial court erred when it awarded permanent custody to the agency
as the decisions are against the manifest weight of the evidence and are
not supported by clear and convincing evidence.
After careful review of the record and relevant case law, we affirm the
juvenile court’s judgment.
I. Procedural and Factual History
Mother and Ju.T. (“Father 1”) are the biological parents of the minor
child, N.T. Mother and K.T. (“Father 2”) are the biological parents of the minor
child, J.T. Mother has two additional children, Na.L. and N.T., who are not the
subject of this appeal.
On December 2, 2019, CCDCFS filed a complaint for temporary
custody, alleging that N.T. and J.T. were dependent children as defined in R.C.
2151.04(C). In support of the complaint, CCDCFS alleged the following set of
particulars:
1. On or about November 27, 2019, Mother brought the children to
CCDCFS and indicated that she could not provide for their daily needs
at this time.
2. Mother does not have safe and stable housing in which to provide
for the children. Mother has not had stable housing since
approximately 2016.
3. Mother has previously been diagnosed with post-traumatic stress
disorder and is in need of services to address her mental health.
4. Mother was previously convicted of child endangering and the
children were the victims of the offense. See Garfield Heights M.C. No.
CRB1902252.
5. Father of N.T. and the alleged father of J.T.1, [Father 1], is currently
incarcerated serving a sentence of three years after convictions for
burglary and attempted pandering of sexual materials involving
minors. He is not eligible for release until July 2021.
6. [Father 1] has failed to establish paternity * * * and has failed to
consistently support, visit, or communicate with the children since
birth.
In March 2020, the juvenile court issued separate journal entries
finding the allegations of the complaint were proven by clear and convincing
evidence. Accordingly, N.T. and J.T. were adjudicated dependent and the matter
was set for disposition.
Approximately three weeks later, the juvenile court issued separate
journal entries accepting Mother’s stipulation to the requested disposition and
committing N.T. and J.T. to the temporary custody of CCDCFS. Thereafter, a case
plan for reunification was developed to address the agency’s concerns with Mother’s
undiagnosed mental-health issues, history of substance abuse, lack of stable
housing, and inability to provide for the children’s basic needs. The case plan was
later amended to include domestic-violence services.
On October 9, 2020, CCDCFS filed a motion to modify the orders of
temporary custody to orders of permanent custody pursuant to R.C. 2151.413. The
motion was supported by the affidavit of CCDCFS social worker, Kelly Williams
(“Williams”), who averred, in pertinent part:
***
1 Father 2 subsequently established paternity of J.T. and was joined in the
proceedings.
6. A case plan was filed with the juvenile court and approved which
required that Mother demonstrate the ability to meet the children’s
needs for food, stable housing, supervision, and nurturing; complete a
psychological evaluation and follow any and all recommendations;
complete a drug and alcohol assessment and follow any and all
recommendations.
7. Mother lacks stable and appropriate housing.
8. Mother only recently engaged in mental health services, and has
failed to show that she is benefiting from said services.
9. Mother continues to use marijuana, and has failed to obtain a drug
and alcohol assessment.
10. Mother has failed to submit genetic testing to help establish
paternity for * * * J.T.
11. Mother is in a domestically violent relationship with her current
paramour, which has resulted in her being evicted from her residence.
12. A case plan was filed with the juvenile court and approved which
required [Father 1] establish paternity.
13. [Father 1] is currently incarcerated[.]
A permanent custody hearing was held on June 24, 2022. At the
hearing, Williams testified that she was formally employed as an extended
caseworker at CCDCFS and was assigned to the children’s case in January 2020.
Williams outlined her familiarity with the Mother and the circumstances that caused
the children to be removed from her care in December 2019. Specifically, Williams
testified that the agency obtained emergency temporary custody of the children
because Mother self-reported having unstable housing and feeling overwhelmed.
Williams testified that a case plan for reunification was developed to
assist Mother in addressing the issues that led to the children’s removal. As
previously discussed, Mother’s case plan required her to obtain stable housing,
complete a domestic-violence program, complete mental-health and substance-
abuse assessments, and comply with any additional recommended services. In
pertinent part, the case plan required Mother to (1) complete a psychological
evaluation and engage in any recommended services; (2) complete a drug and
alcohol assessment, engage in any recommended services, and submit to scheduled
and random drug screens as requested by the agency; (3) establish paternity and
provide financial and emotional support to the children; and (4) “demonstrate an
ability to meet the children’s needs for food, stable housing, supervision, and
nurturing by using [her] own income and community resources.”
Williams testified that during the time she was assigned to the
children’s case, Mother failed to establish stable housing and did not demonstrate
the ability to meet the children’s basic needs. The record reflects that in August
2019, Mother was convicted of child endangering in the Garfield Heights Municipal
Court. By November 2019, Mother was homeless and contacted CCDCFS because
she had nowhere to go with the children. After the children were placed in the
emergency care of the agency, Mother obtained suitable housing for a period of three
months in the summer of 2021. However, following an incident of domestic abuse
involving her then boyfriend, Marquis Thomas (“Thomas”), Mother was evicted
from the home by her landlord. As a result of the incident, Mother began residing
at a woman’s shelter, Zelie’s Home, in September 2021. Mother resided in Zelie’s
Home for approximately ten months. During this time period, the children were
prohibited from residing with Mother in the shelter.
Mother moved out of the shelter and into independent housing
approximately 11 days before the permanent-custody hearing. Despite Mother’s
efforts, Williams had ongoing concerns with Mother’s ability to maintain suitable
housing because Mother (1) did not provide financial support to the children during
the pendency of the case, (2) did not provide verification of employment during the
pendency of the case, and (3) was unemployed at the time of the permanent custody
hearing. Williams was further concerned with the amount of time it took Mother to
find suitable housing, stating, in relevant part:
[I]t doesn’t take people two years to find housing. * * * You know, she’s
filed the taxes for the kids. * * * So you have money to get something,
but you haven’t been able to hold a job. It’s going to take you being fully
employed to be able to maintain your children. There’s available
daycare, but again, you’re going to have to, you know, be able to
maintain that.
***
Mom is young, she’s under 25 and to maintain, you know, meet the
needs of the kids, the basic needs of them, you know, she’s been out of
housing for five years. That’s going to be something to maintain
housing for somebody who hasn’t had housing for five years.
(Tr. 68-69, 71.)
Williams testified that Mother’s case plan was amended to include
services for domestic abuse following the incident of domestic violence with Thomas
in 2021. Mother was required to “attend and participate in domestic violence
services,” and “demonstrate that she is able to keep herself and children safe from
[domestic violence] concerns.” Williams confirmed that Mother completed a
domestic-violence class while residing at the shelter, and there have been no new
reported incidents of domestic violence. Nevertheless, Williams testified that the
agency had ongoing concerns with domestic violence during the pendency of the
case because Mother continued to have contact with Thomas and, in fact, got
pregnant with Thomas’s child while residing in Zelie’s Home.
Regarding the substance-abuse component of the case plan, Williams
clarified that Mother was required to complete a substance-abuse referral because
she “admitted to marijuana use” and tested positive for marijuana in February 2020.
(Tr. 19, 25.) Mother was initially referred to Catholic Charities for a substance-abuse
assessment in 2020, but she failed to appear for her scheduled appointment.
Mother was subsequently referred for a substance-abuse assessment at New
Visions, which she completed in November 2020. A certified copy of Mother’s
records from New Visions, marked exhibit No. 1, reflects that Mother was diagnosed
with cannabis use disorder and outpatient services were recommended. Mother
tested positive for alcohol use in February 2021, and was discharged from New
Visions in March 2021 due to noncompliance with recommended treatment. After
being discharged by New Visions, Mother failed to engage in substance-abuse
treatment and did not consistently submit to random drug screens requested by the
agency.
In January 2022, Mother completed a second assessment through
New Visions. On this occasion, New Visions did not recommend any additional
substance-abuse services because Mother provided a negative drug test and
reported being sober for a period of one year. Approximately one month later,
Mother submitted to a hair-follicle drug test that was administered by the agency.
Williams confirmed that hair follicle test came back negative. Nevertheless,
Williams opined that Mother did not successfully complete her case-plan objectives
for substance and alcohol abuse because she did not successfully engage in
previously recommended services and did not have a documented sobriety date
based on her failure to consistently submit t0 random drug screens during the
pendency of the custody proceedings. (Tr. 46-47, 73-75.)
Williams testified that mental-health components were included in
Mother’s case plan because she has a history of depression and “suicidal ideations.”
(Tr. 26.) Mother was initially referred for a mental-health assessment at Ohio
Guidestone in May 2020. She was diagnosed with a general anxiety disorder, post-
traumatic stress disorder, and major-depressive disorder. Based on these issues,
Ohio Guidestone recommended that Mother engage in psychotherapy, therapeutic
behavioral services or psychosocial rehabilitation, and psychiatry services. In
August 2021, however, Mother was discharged from Ohio Guidestone due to
noncompliance. During Mother’s second substance-abuse assessment with New
Visions in January 2022, it was recommended that Mother “complete a full mental
health assessment.” (Tr. 30-31.) However, Mother refused to comply with the
recommendation because she did not believe it was necessary or effective. Thus,
Williams expressed that the agency had ongoing concerns with Mother’s mental
health because “she has not been consistent with mental health services” and
continues to exhibit signs of depression. (Tr. 31.)
With respect to visitation, Williams testified that between December
2019, and September 2021, Mother’s visitation with the children was inconsistent
and sporadic. At one point, the agency was not “having visits again because mom
wasn’t showing up and, you know, she didn’t have housing and things like that.” (Tr.
39.) It was only when Mother moved into Zelie’s Home, and the children were being
transported directly to the shelter, that Mother’s unsupervised visits became more
consistent and appropriate. However, Williams indicated that Mother’s interaction
with the children was limited to the scheduled visits. Williams testified that Mother
does not consistently attempt to communicate with the children via telephone or
FaceTime despite having the ability and access to do so.
Father 1 was incarcerated at the time of the children’s removal, and
remained in custody during a substantial portion of the proceedings. Williams
testified that Father 1 was released from prison in late 2021, or early 2022, but was
subsequently reincarcerated until April 2022. Williams testified that Father 1 has
had no involvement with N.T. and did not attempt to visit her when he was out of
prison. At the time of the hearing, Father 1 was between jobs and, due to the nature
of his previous convictions, was “not able to provide care for [N.T.]” (Tr. 82.)
Father 2 was joined in the proceedings after it was established that he
is the biological father of J.T. Williams testified that Father 2 initially expressed
interest in obtaining custody of J.T., and visited J.T. on several occasions. However,
Father 2 did not actively communicate with J.T., did not provide financial support,
and eventually expressed that he was not interested in engaging in recommended
services. Williams further testified that the agency attempted to identify suitable
relatives for placement. Their efforts, however, proved unsuccessful.
Williams testified that J.T. is adjusting well to his placement in foster
care. J.T. resides in the foster home with his sister, Na.L., and has formed a bond
with his sister and his foster parents. Williams testified that J.T. is actively
participating in counseling through Ohio Guidestone and is having his individual
needs met. N.T., however, was removed from her placement before the permanent
custody hearing due to behavioral issues in school and her foster home. N.T. is
currently placed in a residential facility where she is receiving services to address
her significant behavioral issues and mental-health needs.
Based on the foregoing, Williams testified that she did not believe the
children could be reunified with their parents and that permanent custody was in
their best interests. She explained her position as follows:
The children have been in care since 2020. There has been no progress
with the mom, no consistency with her being able to hold a job,
addressing her mental health. I’ve spent a lot of time trying to work
with her to do services. I’ve linked her to two community collabs as a
support to help her through things and, you know, but mom just didn’t
get there.
(Tr. 44.)
Child protection specialist, Sierra Whatley (“Whatley”), testified that
she was assigned to the children’s case in May 2022. Whatley confirmed that
Mother moved into “an appropriate home” on June 13, 2022, and had lived on her
own for less than one week. (Tr. 88.) Whatley further confirmed that Mother is not
currently employed and failed to complete “the full mental health assessment that
was recommended by New Visions.” (Tr. 81.) Whatley also discussed the children’s
current placements. She reiterated that N.T. is currently placed in a residential
facility and is receiving individual and group counseling. In turn, J.T. is currently
placed in a foster home with another sibling, “appears pretty bonded” with his foster
parents, and is actively improving his social skills. (Tr. 84.) When asked whether
she believed permanent custody was in the children’s best interests, Whatley stated
as follows:
The agency believes that permanent custody is in the children’s best
interests at this time. The kids have been in custody for over two and a
half years. There is a concern with [Mother] maintaining her mental
health and also maintaining housing. She did just get housing last
week, but she has a history of unstable housing and unemployment. So
the concern is just her being able to maintain her mental health and
housing.
(Tr. 84-85.)
Mother testified on her own behalf. She confirmed her understanding
of her case-plan objectives and her obligation to engage in services related to mental
health, substance abuse, housing, and domestic violence. Mother testified that she
is currently renting a unit of a home located in Cleveland, Ohio. Mother was
approved for Section 8 housing in January 2022, but was unable to find suitable
housing until June 2022 because she does not “have good credit.” (Tr. 104.) Mother
confirmed that she did not have employment at the time of the permanent-custody
hearing but intended to schedule an interview with her former employer. Mother
expressed that she was capable of providing for her children and will to do whatever
is necessary to “keep [her] kids safe.” (Tr. 107.) Mother stated that she intends to
engage in the programming offered by Zelie’s Home, including services for financial
literacy, parenting classes, and resource assistance.
Regarding the substance-abuse component of her case plan, Mother
testified that she was required to submit to random drug screens at Zelie’s Home as
a condition of her residency. Mother explained that she “[doesn’t] have a substance
abuse problem” and made the decision to stop using marijuana because it was
interfering with her ability to “get [her] kids back.” (Tr. 98.) Mother indicated that
she did not engage in outpatient substance-abuse treatments because New Visions
did not recommend any additional services following her assessment in 2022.
While living in the shelter, Mother also engaged in mental-health
counseling and developed a strong bond with her counselor. Mother testified that
she also spoke with a doctor at MetroHealth Hospital and has consistently taken
anxiety medication since October 2021. Mother testified that she advised the agency
that she was engaging in mental-health services through the shelter and was taking
medication as prescribed by her treating physicians. Yet, Mother acknowledged that
she did not comply with New Visions recommendation that she complete a full
mental-health assessment. She explained the basis of her decision to ignore the
recommendation as follows:
I didn’t feel like I needed to take another mental health assessment
when I already took one in September when I started engaging in
counseling services through their agency, at Zelie’s Home.
(Tr. 98.)
At the conclusion of her testimony, Mother requested that her
children be returned to her care, stating:
Nobody can care for my kids how I care for my kids. I don’t care how
anybody make it seem. I don’t care how anybody try to make it seem
like I’m a bad person. Nobody is going to love them or take care of them
the way that I can. Nobody is going to understand them the way that I
can.
(Tr. 111.).
Finally, the court heard from the child’s guardian ad litem, Alix
Wintner, Esq. (the “GAL”). Consistent with the recommendations of the agency’s
employees, the GAL recommended that permanent custody be granted in favor of
CCDCFS. The GAL summarized her position as follows:
This has been a very, very hard case for me. I’ve been involved since
the beginning. I mean, mom has kind of gone through ups and downs,
good periods and not so good periods.
She’s done I think great since she’s been at Zelie’s Home, but at Zelie’s
Home there’s a lot of oversight and people there to make sure that the
mothers take responsibility. In the two and a half years mom’s really
only had her own place for about three months and that didn’t go so
well. She was eventually evicted from the place and there were issues.
I think that [N.T.] has a lot of behavioral problems. She’s very young.
She’s six years old and I’ve never heard of a six-year-old being in a
residential treatment before. That to me – because it’s so unusual – it’s
very, very serious. And I know that mother loves her kids and that she
would do what she could for them, but I don’t think that even a
mother’s love can fix the problems that this young child has.
In the last year mom’s been very consistent with her visits. I’ve been to
several of them. They’ve gone well. She’s attentive to the children. And
if we were only one year into this case I would not be recommending
permanent custody, but because there are time limits on these cases
I’m concerned about mom being able to meet the needs of the children,
to maintain housing because there isn’t a history, a good history of
maintaining housing or employment. I mean, mom’s baby was born in
December and there could have been employment during this interim
period.
So I’m not happy with having to recommend this, but I am
recommending that permanent custody be granted of these two
children.
(Tr. 119-120.)
In separate journal entries, the juvenile court granted the agency’s
motion for permanent custody of N.T. and J.T. The court found, by clear and
convincing evidence, that a grant of permanent custody was in the children’s best
interests and that the children cannot be placed with either of their parents within a
reasonable time or should not be placed with either parent.
Mother now appeals from the juvenile court’s judgment.
II. Law and Analysis
In the sole assignment of error, Mother argues the juvenile court’s
judgment awarding the agency permanent custody of N.T. and J.T. is against the
manifest weight of the evidence and is not supported by clear and convincing
evidence. Mother contends that the evidence adduced at the permanent custody
hearing established that she (1) “successfully met the substance abuse plan goal by
obtaining and maintaining sobriety for a period longer than eight months,” (2) “has
remained consistent with her medication and counseling” since residing in Zelie’s
Home, (3) “secured appropriate housing in June of 2022,” and (4) successfully
“completed a domestic violence class while she was at Zelie’s Home.”
We take our responsibility in reviewing cases involving the
termination of parental rights and the award of permanent custody very seriously.
A parent has a “‘fundamental liberty interest’ in the care, custody and management”
of his or her child, In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990),
quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982), and the right to raise one’s own child is “‘an essential and basic civil right.’”
In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). 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).
Because the termination of parental rights is “‘the family law
equivalent of the death penalty in a criminal case,’” it is “an alternative [of] last
resort.” 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; 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). When parental rights
are terminated, the goal is to create “a more stable life” for dependent children and
to “facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing
In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860,
5 (Aug. 1, 1986).
A. Standard of Review
R.C. 2151.414 provides a two-prong analysis to be applied by a juvenile
court in adjudicating a motion for permanent custody. In re S.C., 2018-Ohio-2523,
115 N.E.3d 813, ¶ 20 (8th Dist.), citing R.C. 2151.414(B). This first prong of this
statute authorizes the juvenile court to grant permanent custody of a child to the
public agency if, after a hearing, the court determines, by clear and convincing
evidence, that any of the following factors apply (a) the child is not abandoned or
orphaned, but the child cannot be placed with either parent 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 12 or more
months of a consecutive 22-month period; or (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).
In accordance with the second prong of R.C. 2151.414, when any one
of the above factors exists, the juvenile court must then analyze whether, by clear
and convincing evidence, it is in the best interest of the child to grant permanent
custody to the agency pursuant to R.C. 2151.414(D).
“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.
“‘Clear and convincing evidence’ is evidence that ‘will produce in the mind of the
trier of facts a firm belief or conviction as to the allegations sought to be
established.’” In re T.B., 8th Dist. Cuyahoga No. 99931, 2014-Ohio-2051, ¶ 28,
quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
B. First Prong: R.C. 2151.414(B)(1)(a)-(e)
With respect to the first prong of the permanent-custody analysis, the
juvenile court found, pursuant to R.C. 2151.414(B)(1)(a), that the children were
neither abandoned nor orphaned, but they could not be placed with either parent
within a reasonable time or should not be placed with their parents.
When assessing whether a 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 under R.C. 2151.414(B)(1)(a), a juvenile court must consider the factors
outlined in R.C. 2151.414(E). In re A.V., 8th Dist. Cuyahoga No. 101391, 2014-Ohio-
5348, ¶ 58; In re R.M., 8th Dist. Cuyahoga Nos. 98065 and 98066, 2012-Ohio-4290,
¶ 14; In re B.P., 8th Dist. Cuyahoga Nos. 107732 and 107735, 2019-Ohio-2919, ¶ 13.
A juvenile court is only required to find that one of these factors is met in order to
properly find that a child cannot or should not be placed with a parent. In re Ca.T.,
8th Dist. Cuyahoga No. 108969, 2020-Ohio-579, ¶ 27, citing In re V.C., 8th Dist.
Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 42.
In this case, the juvenile court found, pursuant to R.C. 2151.414(E)(1),
that
[f]ollowing 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.
The court further found, pursuant to R.C. 2151.414(E)(13) that
[t]he parent is repeatedly incarcerated, and the repeated incarceration
prevents the parent from providing care for the child.
After careful consideration, we find competent and credible evidence
supports the juvenile court’s determination that the children clearly and
convincingly could not or should not be placed with either parent within a
reasonable time.
In reaching this conclusion, we acknowledge that Mother’s substance-
abuse issues are not as concerning as they were during the early stages of these
proceedings. (Tr. 89-90.) Although Mother’s refusal to comply with her obligation
to “provide drug screens requested by the agency” was unwarranted, it is worth
noting that Mother has passed all drug screens administered since February 2020,
and her latest substance-abuse assessment did not recommend further outpatient
services. The record further reflects that Mother successfully completed a domestic-
violence class in 2022 and has not engaged in an incident of domestic-violence since
completing the course. Finally, there is no dispute that Mother has worked to
improve her credit and obtained appropriate and suitable housing approximately 11
days before the permanent-custody hearing. Mother’s efforts in these areas are to
be commended.
With that stated, however, we find the record equally reflects that
Mother failed to complete significant portions of her case plan and, therefore, failed
to substantially remedy the conditions that caused the children to be removed from
her home. Here, Williams explained that the children were removed from Mother’s
custody after Mother reported to the agency that she was homeless and
overwhelmed by depression. (Tr. 18.) Thus, it is evident that Mother’s mental-
health issues, her history of unstable housing, and her inability to provide for the
children’s basic needs were of primary significance to CCDCFS.
To address these concerns, the agency developed a case plan that
expressly required Mother to compete a mental-health evaluation and follow
through with any and all additional services that are recommended or deemed
beneficial. In addition, Mother was required to “demonstrate an ability to meet the
children’s need for food, stable housing, supervision, and nurturing by using her
own income and community resources.”
In this case, the record confirms that Mother was discharged from
Ohio Guidestone after she failed to comply with its recommendation that she engage
in psychotherapy, therapeutic behavioral services or psychosocial rehabilitation,
and psychiatry services. Furthermore, Mother did not dispute that she knowingly
refused to comply with New Visions’s recommendation in 2022 that she complete a
full mental-health assessment as contemplated in the mental-health component of
her case plan. Mother was not relieved of her obligations under the case plan merely
because she felt an additional assessment was redundant or unnecessary. According
to Williams, Mother was not consistent with her mental-health services and
continued to exhibit signs of depression throughout the pendency of this case.
Although Mother’s case manager at Zelie’s Home indicated that Mother had
engaged in counseling services while residing at the shelter, the agency was not
provided with documentation to confirm whether Mother completed a full mental-
health assessment or otherwise engaged in recommended services. For these
reasons, Williams maintained that Mother has not engaged in “appropriate therapy”
and did not adequately address the agency’s ongoing concerns with her mental
health. (Tr. 28, 70-71.)
In turn, the record further supports the juvenile court’s conclusion
that Mother has not demonstrated the ability to maintain stable housing or provide
for the children’s basic needs. Preliminarily, we find the record supports Williams’s
testimony that Mother often did not appreciate what was necessary for reunification
with her children. (Tr. 67-68.) For instance, despite the circumstances that caused
the children’s removal in the first place, including a conviction for child
endangering, Mother expressed that if the children were returned to her, she would
care for them the same way she did before they were placed in the agency’s
emergency custody. (Tr. 108, 113.) Williams testified that Mother also minimized
N.T.’s behavioral and mental-health issues, and was reluctant to change her mindset
when it came to compliance with her case-plan objectives.
Moreover, without delving into Williams’s justified concerns with the
amount of time it took Mother to obtain housing, we emphasize that Mother has
been unemployed for a substantial period of time and has not demonstrated a stable
source of income that is enough to provide for the children’s needs. Mother’s efforts
to secure an appropriate home through the programming offered by Zelie’s Home is
significant. At this point, however, Mother’s securement of a lease is not necessarily
indicative of her ability to provide for the children’s basic needs and maintain stable
housing. As contemplated under the plain language of Mother’s case plan, Mother’s
ability to satisfy this component of her case plan required her to “work or show a
stable source of income that is enough to provide for the family’s need. The income
will be budgeted to meet the needs of the household effectively.” When asked to
describe her employment situation, Mother stated that she was trying to find a job
that best suits her and that she stopped working because it was not in her best
interests, and she was “already getting help from Zelie’s Home.” (Tr. 103.) Mother’s
suggestion that she intended to obtain employment once she was settled into her
home did not overcome the various circumstances supporting the court’s conclusion
that she “still had not demonstrated that ability to maintain stable housing * * * and
remains unable to meet the children’s basic needs.”
Finally, even if this court were to accept Mother’s position that she
substantially complied with her case plan by engaging in services at Zelie’s Home,
we note that Ohio courts have routinely held that a parent’s compliance with his or
her case plan is not necessarily dispositive on the issue of reunification. See In re
F.T., 4th Dist. Ross No. 22CA17, 2023-Ohio-191, ¶ 64, citing In re B.P., 4th Dist.
Athens No. 20CA13, 2021-Ohio-3148, ¶ 57; In re T.J., 4th Dist. Highland Nos.
15CA15 and 15CA16, 2016-Ohio-163, ¶ 36, citing In re R.L., 9th Dist. Summit Nos.
27214 and 27233, 2014-Ohio-3117, ¶ 34 (“[A]lthough case plan compliance may be
relevant to a trial court's best interest determination, it is not dispositive of it.”); In
re S.C., 8th Dist. Cuyahoga No. 102349, 2015-Ohio-2280, ¶ 40 (“Compliance with a
case plan is not, in and of itself, dispositive of the issue of reunification.”); accord In
re K.M., 4th Dist. Ross No. 19CA3677, 2019-Ohio-4252, ¶ 70, citing In re W.C.J.,
4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 46 (“Substantial compliance with
a case plan is not necessarily dispositive on the issue of reunification and does not
preclude a grant of permanent custody to a children's services agency.”); In re N.L.,
9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶ 35 (“[S]ubstantial compliance with
a case plan, in and of itself, does not establish that a grant of permanent custody to
an agency is erroneous.”). “Indeed, because the trial court’s primary focus in a
permanent custody proceeding is the child’s best interest, ‘it is entirely possible that
a parent could complete all of his/her case plan goals and the trial court still
appropriately terminate his/her parental rights.’” W.C.J. at ¶ 46, quoting In re
Gomer, 3d Dist. Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21, 2004-Ohio-1723,
¶ 36; accord In re K.J., 4th Dist. Athens No. 08CA14, 2008-Ohio-5227, ¶ 24
(“[W]hen considering a R.C. 2151.414(D)(1)(d) permanent custody motion, the focus
is upon the child’s best interests, not upon the parent’s compliance with the case
plan.”). Consequently, even if Mother complied with her case plan requirements,
her compliance, standing alone, did not necessarily demonstrate that she
substantially remedied the conditions that caused the children’s removal or that
reunification is in the children’s best interest.
Based on the foregoing, we find the record clearly and convincingly
supports the juvenile court’s conclusion that Mother was not amenable to various
services and failed to remedy the conditions that caused the children to be placed
outside the home. Standing alone, this evidence is sufficient to satisfy the first prong
of the two-part analysis.2 See In re M.S.K., 8th Dist. Cuyahoga No. 111974, 2023-
Ohio-316, ¶ 31 (“Pursuant to R.C. 2151.414(E), if the court determines, by clear and
2 Briefly, as it pertains to Father 1, the record unambiguously demonstrates that
he was repeatedly incarcerated and unable to care for his biological child.
convincing evidence, that one or more of the (E)(1)-(15) factors exist, the court shall
enter a finding that the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent.”). (Emphasis sic.) Accordingly, the
juvenile court appropriately found that N.T. and J.T. could not or should not be
placed with Mother within a reasonable time pursuant to R.C. 2151.414(B)(1)(a)
C. Second Prong: Best Interests of the Children
Turning to the second prong of the permanent-custody analysis, we
recognize “[t]he discretion that the juvenile court enjoys in [deciding] whether an
order of permanent custody is in the best interest of a child should be accorded the
utmost respect, given the nature of the proceeding and the impact the court’s
[decision] will have on the lives of the parties concerned.” In re Awkal, 95 Ohio
App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). Thus, we review a juvenile court’s
determination of a child’s best interests under R.C. 2151.414(D) for abuse of
discretion. In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47.
An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
Such an abuse “‘“implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.”’” State v. Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135,
quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983),
quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). This court
has held that an abuse of discretion may be found where a trial court “applies the
wrong legal standard, misapplies the correct legal standard, or relies on clearly
erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-
1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). When applying the abuse-of-discretion
standard, a reviewing court may not substitute its judgment for that of the trial
court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 (8th Dist.).
“In determining the best interest of a child, a juvenile court ‘may apply
one of two different tests.’” In re S.C., 10th Dist. Franklin No. 21AP-203, 2022-Ohio-
356, ¶ 38, quoting In re J.P., 10th Dist. Franklin No. 18AP-834, 2019-Ohio-1619,
¶ 39. “‘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.’” Id., quoting In re J.P. at ¶ 39. “By contrast, ‘under R.C.
2151.414(D)(2), if the juvenile court makes [each of] 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.’” Id., quoting In re J.P. at ¶ 39.
“These two provisions ‘are alternative means for reaching the best-interest
determination.’” Id., quoting In re J.P. at ¶ 40.
In this case, the juvenile court applied R.C. 2151.414(D)(1), and
expressly considered the following factors in finding that a grant of permanent
custody in favor of CCDCFS was in the children’s best interest:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
R.C. 2151.414(D)(1).
Although a juvenile court is required to consider each relevant factor
under R.C. 2151.414(D)(1), “there is not one element that is given greater weight
than the others pursuant to the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-
Ohio-5513, 857 N.E.2d 532, ¶ 56. Moreover, the Ohio Supreme Court has clarified
that R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss each
of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). “Consideration is
all the statute requires.” In re A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, 184
N.E.3d 1, ¶ 31.
After careful consideration of the testimony presented at the
permanent custody hearing, we find there is competent, credible evidence in the
record to support the juvenile court’s reliance on the factors set forth under R.C.
2151.414(D) and its conclusion that permanent custody to the agency is in children’s
best interests.
First, with respect to the children’s relationship with their parents,
siblings, relatives, and foster parents, there is no dispute that the children do not
share a relationship with their biological fathers. The record further reflects that
N.T. and J.T. have had vastly different experiences in their temporary placement.
Williams testified that J.T. has formed a significant bond with Na.L. and his foster
parents. His basic needs are being met and he is actively engaged in counseling
services through Ohio Guidestone. In contrast, N.T.’s behavior appears to have
worsened since her removal from Mother’s care. She began exhibiting aggressive
and sexualized behaviors that required CCDCFS to place her in a residential facility.
N.T. is currently engaged in counseling services to address her behavioral and
mental-health issues.
Regarding Mother, the agency workers assigned to this case agreed
that Mother loves her children deeply and has engaged in appropriate visits with the
children since living in Zelie’s Home. Nevertheless, the GAL and Williams each
opined that Mother’s loving relationship with her children, standing alone, is not
indicative of her ability to provide for children’s basic needs. (Tr. 68, 119-120.) See
In re K.M., 8th Dist. Cuyahoga No. 95374, 2011-Ohio-349, ¶ 23 (The best interest of
the child requires permanency and a safe, secure environment, and the mere
existence of a good relationship is insufficient.). Williams further described
inconsistent aspects of Mother’s relationship and interaction with N.T. and J.T. She
explained that prior to Mother’s residence in Zelie’s Home, Mother’s visitation was
sporadic and she frequently failed to show up for scheduled visits. Mother was also
reluctant to contact the children outside scheduled visits and did not consistently
attempt to contact them or their foster parents via telephone or FaceTime.
Under R.C. 2151.414(D)(1)(b), it is proper for the juvenile court to
consider the GAL's recommendation where the children are too young to express
their wishes. In re M.D., 8th Dist. Cuyahoga Nos. 110957, 110958, and 110959,
2022-Ohio-2672, ¶ 35. Here, N.T. was six-years old and J.T. was four-years old at
the time of the permanent custody hearing. Although the children did not formulate
a meaningful expression of their wishes at the custody hearing due to their age, the
GAL spoke on the children’s behalf and recommended permanent custody to
CCDCFS. Noting the children’s need of legally secure permanent placement and
Mother’s history of unstable housing and employment, the GAL believed that
permanent custody was in the children’s best interests.
Regarding the (D)(1)(c) and (d) factors, there is no dispute that the
agency was unable to identify a suitable relative for placement and that the children
have remained in the agency’s custody since December 2019. See R.C. 2151.415(D).
Mother had approximately two and a half years to take the necessary steps to remedy
the substantial issues that caused the children to be removed from her care.
Although Mother has addressed certain issues that have negatively affected her in
the past, her reluctance to follow the recommendations of the agency and her
service-providers prohibited her from demonstrating her ability to provide the
children with a permanent and stable home. 3
Balancing the foregoing factors and the recommendations of the GAL
and agency employees, the juvenile court was free to conclude that the ultimate
welfare of the children would be better served by an award of permanent custody.
CCDCFS provided credible evidence regarding the children’s custodial history, their
need for legally secure permanent placement, and the significant hurdles Mother
has yet to overcome. Viewing the evidence collectively, we cannot say that the
3 Citing an earlier case from this court, Mother contends that the juvenile court’s
determination rests “more on possibilities than clear and convincing evidence[.]” In re
M.S., 2015-Ohio-1847, 34 N.E.3d 420, ¶ 59 (8th Dist.). Consistent with the foregoing
discussion, we find In re M.S. contains highly distinguishable facts. There, father
appealed from the trial court's judgment granting permanent custody. In analyzing the
best interest of the children, this court found the factors under R.C. 2151.414(D)(1)(a) and
(b) clearly weighed in favor of preserving the family relationship despite domestic-
violence issues: the children had a strong, loving relationship with appellant; he had
constant visitations with the children; there were no concerns regarding his interactions
with them; and the children had expressed a desire to be with him. Regarding the
(D)(1)(d) factor, this court noted that father had taken significant steps toward
completing the case plan and remedying the conditions that had caused the children’s
removal and, at one point, appellant came very close to reunification with his children.
The evidence also showed father consistently followed up with services, obtained
schooling and daycare for the children, and took care of the children and their needs.
Consequently, this court found no clear and convincing evidence existed to show that a
legally secure permanent placement cannot be achieved without a grant of permanent
custody.
In contrast, the record in this case does not reflect that Mother has consistency
followed up with recommended services or taken significant steps towards completing
her case plan objectives. As stated, Mother admittedly failed to obtain a verifiable source
of income, failed to submit to requested drug screens with the agency, failed to complete
a recommended mental-health assessment, and failed to document her participation in
recommended mental-health services. This court's decision in In re M.S. was predicated
on the specific facts present in that case and it does not support a reversal here.
juvenile court acted unreasonably, arbitrarily, or unconscionably in determining
that permanent custody was in the best interests of N.T. and J.T.
Mother’s sole assignment of error is overruled.
III. Conclusion
The juvenile court’s award of permanent custody to CCDCFS is
supported by clear and convincing evidence in the record and is not against the
manifest weight of the evidence. Accordingly, Mother’s sole assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR