In re J.T.

[Cite as In re J.T., 2022-Ohio-4214.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.T., ET AL. :
: No. 111749
Minor Children :
:
[Appeal by L.T., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 23, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD20904438 and AD20904439
Appearances:
Patrick S. Lavelle, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
Cullen Sweeney, Cuyahoga County Public Defender, and
Britta Barthol, Assistant Public Defender, for appellee J.T.
MARY EILEEN KILBANE, P.J.:
Appellant L.T. (“Mother”) appeals from the juvenile court’s decision
awarding permanent custody of her minor twin children (“the children” or “the
twins”) to the Cuyahoga County Division of Children and Family Services
(“CCDCFS” or “the agency”). For the following reasons, we affirm.
Factual and Procedural History
The children were born to Mother and appellee-father J.T. (“Father”)
in June 2018. Because Mother tested positive for illegal substances at the time of
their birth, the twins were initially placed in CCDCFS custody in June 2018 under a
separate case number. In that case, the twins were adjudicated abused and
dependent due to Mother’s substance abuse, and they remained in CCDCFS custody
until spring 2020. In the spring of 2020, the twins were reunified with Mother.
Approximately two weeks later, on April 28, 2020, the underlying
cases were initiated when the children were again removed from Mother’s custody
by a telephonic order for emergency custody when Mother relapsed and was found
unconscious with the children. At that time, Father was incarcerated.
On April 29, 2020, the agency filed a complaint for neglect,
dependency, and permanent custody, alleging that Mother had a substance abuse
problem that prevented her from providing safe and adequate care for the children.
The complaint also identified J.T. as the twins’ alleged father and alleged that he had
failed to establish paternity and support, visit, or communicate with the children. A
case plan was created, and Mother’s case plan objectives were to complete
substance-abuse and mental-health treatment programs and to address parenting
and housing issues.
On January 11, 2021, the court held a hearing on the agency’s
dispositional request for permanent custody. The court denied permanent custody
and ordered the children placed in the temporary custody of the agency.
Mother completed substance abuse and parenting programs in
February 2021. In May 2021, Mother relapsed yet again, and the agency was unable
to maintain consistent contact with her after that point.
Father was released from prison in May 2021 and reached out to
CCDCFS. Father’s case plan objectives were related to substance use because he had
previously tested positive for marijuana, as well as establishing paternity and
establishing a bond with the twins. Father had completed a parenting program
while incarcerated.
On July 23, 2021, CCDCFS filed a motion to modify temporary
custody to permanent custody.
Father subsequently established paternity, completed an intensive
outpatient treatment as recommended by the agency, and he also completed
random drug screenings. When Father had achieved six months of sobriety, the
agency began to work towards reunification with Father. As part of this goal, the
children had overnight and extended visitation with Father.
On March 2, 2022, CCDCFS filed a motion for continuance of the trial
on its motion to modify temporary custody to permanent custody. CCDCFS
submitted that Father had “meaningfully engaged with his case plan objectives and
visitation in recent months” and in light of this engagement, CCDCFS believed that
continuing the trial would facilitate ongoing visitation in accordance with the
permanency plan of reunification. An updated case plan to this effect was filed on
March 3, 2022. On March 9, 2022, the court granted the agency’s motion for a
continuance. On March 22, 2022 the court adopted the updated case plan.
On April 20, 2022, CCDCFS filed a motion to amend its dispositional
prayer from “permanent custody” to “legal custody to Father without restriction.”
The motion noted that Father had made significant progress and that it was in the
children’s best interest to be committed to Father’s legal custody. Specifically, the
motion stated that Father had successfully completed all required case plan
objectives to address concerns related to substance abuse, provision of basic needs,
and paternity establishment. Further, the motion stated that Father had completed
all recommended substance abuse treatment and maintained a meaningful period
of sobriety. Finally, the motion stated that Father had been having unsupervised
overnight visitation with the children and the visits had gone well.
On April 18 and April 28, 2022, Father submitted two drug tests that
were positive for Fentanyl. As a result, visitation was scaled back to two-hour visits.
The agency also referred Father for a new substance use assessment. Father
completed this assessment and was again referred for intensive outpatient
treatment.
On May 2, 2022, the agency filed a notice of voluntary withdrawal of
its April 20, 2022 motion to amend the dispositional prayer. The notice stated that
the agency believed that its originally requested disposition of permanent custody
to CCDCFS was in the best interest of the children.
On May 12, 2022, the court held a trial on the agency’s motion for
permanent custody. At the outset of the hearing, Father’s counsel requested a
continuance, arguing that the agency’s belated notice of withdrawal was based solely
on positive drug screens that the agency had not turned over; counsel requested time
to review the evidence and prepare a defense. The court denied this request and
proceeded with trial. The sole witness was CCDCFS social worker Myrtis Rander-
Walker (“Rander-Walker”).
Rander-Walker testified that she had been assigned to the case since
August 2019. Rander-Walker testified that Mother completed substance-abuse
treatment and parenting programs, but as of Mother’s most recent relapse in May
2021, she had spoken to Mother on the phone twice. Beyond those calls, the agency
was unable to contact or engage with Mother from May 2021 through the date of
trial. Rander-Walker testified that at the time of the trial, Mother was incarcerated.
With respect to Father, Rander-Walker testified that he had
successfully completed his case plan goals and the agency was working towards
reunification until it received two positive drug screens in April 2022. Rander-
Walker said that she spoke to Father about the positive results, and he said that he
did not know “where it came from.” Rander-Walker also testified that the change in
substance abuse from marijuana to Fentanyl was concerning to the agency because
of its particular danger to children. Rander-Walker testified that Father completed
a substance abuse reassessment and, in order for the agency to consider
reunification with Father, he would need to have six months of sobriety, including
completion of any recommended treatment and submission of required clean drug
screens.
Rander-Walker also testified that the twins were in a foster placement
and were doing well, noting that they had been at the placement for two years “and
they consider them their parents and they feel like a family.” Further, the foster
parents were interested in providing permanency for the children. Finally, Rander-
Walker testified that she believed it was in the children’s best interest to have
permanency in their life. She noted that the agency had tried to reunite them with
Mother multiple times and Father once, and it was unfair to the children to “be
bouncing back and forth.”
On June 11, 2022, the magistrate issued a decision granting the
agency’s motion to modify temporary custody to permanent custody. The court
stated, in relevant part:
Pursuant to R.C. 2151.414(B)(1)(d), the Court finds by clear and
convincing evidence that it is in the best interest of the child to grant
permanent custody to the agency that filed the motion for permanent
custody and that the following apply: the child has been in the
temporary custody of one or more public child services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period.
[Father] completed an intensive outpatient treatment program and
achieved his first clean urine in January 2022. As a result, the agency
started working towards reunification including extended and
overnight visits. Unfortunately, the father tested positive for fentanyl
on the 18th and 28th of April 2022. The treatment provider is
recommending that the father’s treatment start all over, and these
positive tests start the clock on the six-month period of sobriety from
once the father again obtains a clean urine whenever that would be.
The court further notes that the father is still on post release control
and could be incarcerated on a parole violation for positive drug
screens.
The foster parents are the psychological parents of these children. The
GAL for the children recommends permanent custody because the
children need a determination of permanency. The agency has tried
multiple times since the children were born to reunify them with their
parents — at least three times with the mother and after several years
of agency involvement, when the father was released from prison and
finally [started] working case plan services, the agency tried to reunify
with him. Despite diligent efforts on the part of the agency since the
children were born in 2018, the parents are still not able to be reunified.
Almost four years after the children were born and removed for the first
time, the mother is currently incarcerated, and the father is currently
testing positive for fentanyl.
Mother appeals, presenting a single assignment of error for our
review:
I. The trial court’s award of permanent custody to DCFS violated state
law and Appellant’s right to due process of the law as guaranteed by the
Fourteenth Amendment of the United States Constitution and Section
16, Article I of the Ohio Constitution.
Law and Analysis
Mother’s assignment of error argues that the trial court violated
Father’s due process rights when it denied his motion to continue the trial in order
to review the positive drug screens. Mother also argues that Father received
ineffective assistance of counsel, arguing not that Father’s counsel was deficient but
that counsel was “unable to perform his job competently” because the agency failed
to turn over the positive drug screens prior to trial.
As an initial matter, we must address the particular procedural
circumstances of this appeal. Mother, who did not appear at the trial in this case
because she was incarcerated, initiated this appeal and seeks to challenge the lower
court’s permanent custody determination because of a claimed violation of Father’s
due process rights. Father did not appeal from the lower court’s judgment in this
case, but Father has filed an appellee brief to this court in which he provides
arguments in support of Mother’s assignment of error. Therefore, before we address
the substance of Mother’s argument, we must first determine whether Mother has
standing to raise this assignment of error.
It is well settled that an appeal lies only on behalf of an aggrieved
party. In re J.L., 8th Dist. Cuyahoga No. 107652, 2019-Ohio-3098, ¶ 14, citing In re
Love, 19 Ohio St.2d 111, 113, 249 N.E.2d 794 (1969). See also In re D.H., 8th Dist.
Cuyahoga No. 82533, 2003-Ohio-6478, ¶ 7. An appellant may not challenge an
alleged error committed against a nonappealing party unless the appealing party can
show prejudice from the alleged error. Id., citing In re M.M., 8th Dist. Cuyahoga
No. 79947, 2002 Ohio App. LEXIS 463 (Feb. 7, 2002) (mother questioning personal
jurisdiction over father could not raise issue on appeal absent prejudice).
Therefore, Mother can only challenge the alleged violations of
Father’s due process rights if she can show that she has been prejudiced by the
alleged error. Mother fails to make this showing. Mother’s brief does not point to
any way in which the alleged due process violation affected the outcome of the
proceedings or prejudiced her. As such, we find that Mother lacks standing to
challenge the denial of Father’s motion to continue. Because Mother does not have
standing to challenge the denial of Father’s motion to continue, we overrule her sole
assignment of error.
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.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR