In re V.P.

[Cite as In re V.P., 2020-Ohio-5626.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE V.P., ET AL. :
: No. 109649
Minor Children :
:
[Appeal by Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 10, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-17911684 and AD-17911685
Appearances:
Patrick S. Lavelle, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Willie Mitchell, Assistant Prosecuting
Attorney, for appellee.
KATHLEEN ANN KEOUGH, J.:
Appellant-mother (“mother”) appeals from the juvenile court's
decision that awarded legal custody of her children, V.P. and A.P., to their maternal
aunt (“maternal aunt”). For the reasons that follow, we affirm.
On August 3, 2017, the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or the “agency”) filed a complaint for dependency with
a dispositional request of legal custody to mother with protective supervision to
CCDCFS. On August 24, 2017, the agency filed a motion for predispositional
temporary custody to the children’s maternal aunt, which the court granted at a
hearing conducted that same day. On September 8, 2017, the agency filed a notice
of its amendment of the dispositional request from legal custody to mother with
protective supervision to legal custody of the children to their maternal aunt.
CCDCFS developed a case plan for mother that required her to
complete services for substance abuse, domestic violence, and mental health; and
provide for the basic needs of the children, including housing.1 The court also
appointed William Daugherty as the children’s guardian ad litem (“GAL”).
On October 4, 2017, a magistrate conducted an adjudicatory hearing
during which the court considered evidence and testimony. The magistrate found
that the agency proved by clear and convincing evidence certain allegations
contained in the dependency complaint. Specifically, the magistrate found that (1)
mother was diagnosed with paranoid schizophrenia and bipolar disorder, which
interfered with her ability to provide adequate care for the children on a consistent
basis; and that mother was not addressing her mental health issues; (2) mother was
unable to secure stable housing for herself and her children; (3) mother was
convicted for drug possession; and (4) father lived out of state and refused to provide
1CCDCFS also developed a case plan for the children’s father.Although their father
was subsequently involved in the proceedings and even sought legal custody of the
children while mother was in prison, and later requested shared parenting with maternal
aunt, he failed to appear at the final hearing, agreed to the agency’s request for legal
custody to maternal aunt, and is not a party to this appeal.
care for the children. The magistrate found that the children lacked adequate
parental care, adjudicated the children dependent, and ordered that the children
remain with their maternal aunt. On October 31, 2017, the trial court adopted and
approved the magistrate’s decision.
The court continued the dispositional hearing twice because mother
disagreed with the disposition of legal custody to maternal aunt and the agency
considered amending the disposition based on mother’s progress on her case plan.
On January 19, 2018, CCDCFS determined that it was in the children’s best interest
to amend the dispositional prayer from legal custody to temporary custody to
maternal aunt because mother was making progress towards case plan compliance,
including participating in substance abuse and mental health services. Mother
agreed to the amended disposition and the children were committed to the
temporary custody of maternal aunt, with reunification as the permanency plan.
However, mother was subsequently incarcerated. On May 14, 2018,
CCDCFS determined it was in the children’s best interest to modify temporary
custody to legal custody to maternal aunt because mother failed to complete the
objectives of the case plan. Although mother completed a domestic violence
program, she failed to complete substance abuse services, mental health services, or
provide basic needs for the children.
On March 11, 2019, following Mother’s release from prison, the
magistrate conducted a dispositional review hearing. The court held in abeyance all
motions regarding custody of the children because the court found that “there has
been progress on the case plan by the mother and the father[,] and progress is being
made in alleviating the cause for the removal of the child[ren] from the home.” The
court noted that mother engaged in substance abuse and mental health services
while in prison and was continuing with those services. The magistrate found,
however, that it would not be in the children’s best interest to return to mother’s
home, but that continued temporary custody with the maternal aunt would be in the
children’s best interests. However, the court determined that reunification or legal
custody to a relative was still the custody and permanency plan. Subsequently, the
agency filed an amended case plan to provide for additional visitation between
mother and the children.
On July 11, 2019, a juvenile court magistrate conducted an evidentiary
hearing on the agency’s motion to modify temporary custody to legal custody to
maternal aunt. Mother also moved the court to terminate temporary custody and
award her legal custody of the children.
Shamatee White, child protective specialist with CCDCFS, testified
that she was assigned to the children’s case and developed a case plan for both
mother and father. As part of her case plan, mother was to engage in domestic
violence, substance abuse, and mental health services and provide for the children’s
basic needs. White testified that mother completed the requisite domestic violence
services.
Regarding mental health services, White testified that mother
received services from Murtis Taylor and was compliant with her counseling and
treatment. She stated that mother decided not to take any of her prescribed
medication because she was pregnant.
Regarding basic needs, White explained that basic needs pertained to
consistency and stability in housing, including payment of rent and utilities, and
providing clothing and food. White testified that mother had appropriate housing,
the utilities were in service, and there was food in the home. However, White stated
that she was concerned because mother was behind on her rent, and to date, had not
provided documentation on timely payment of rent and a source of income. White
stated that based on mother’s inability to provide verification of rent payments, the
agency was not satisfied that mother had completed the basic-needs aspect of her
case plan.
Regarding substance abuse services, White testified that mother had
not completed this aspect of her case plan. According to White, these services were
implemented because of mother’s long history of substance abuse. Although mother
completed treatment and services in prison and was attending aftercare at Murtis
Taylor, mother had not achieved the agency’s requisite six-month sobriety
threshold. The evidence revealed that in March 2019, when mother was released
from prison, her hair follicle drug screen was positive for drugs. Subsequent hair
follicle screens revealed lower levels, and all urinalysis drugs screens had been
negative. In May 2019, both hair follicle and urine screens revealed negative results.
According to White, the agency required six-months of sobriety from the May
negative results, which would not occur until November 2019.
White testified that mother regularly visited with the children,
including unsupervised and overnight visits. According to White, the visits were
appropriate and there were no concerns. She stated that the children enjoyed
visiting with their mother.
White testified that the agency requested that the court grant legal
custody to maternal aunt because there was still concern about mother’s substance
abuse issues, and that the agency wanted to see a longer period of sobriety.
Additionally, she stated that the children had been with maternal aunt for over two
years and that the children needed stability.
The GAL offered an oral report at the hearing recommending that the
court grant legal custody to maternal aunt. The GAL noted that the children enjoyed
visiting with their mother and that mother had made progress on her case plan, but
because the children had been in the temporary custody of the agency for over two
years, they needed permanency. The GAL noted that the children had bonded with
their maternal aunt, she was a good role model, and the children were doing well in
her care.
At the conclusion of the hearing, the magistrate granted the agency’s
motion to modify temporary custody to legal custody to maternal aunt. The
magistrate subsequently issued a written decision granting the agency’s motion and
awarding legal custody to maternal aunt, but ordered scheduled visitation with
mother. The magistrate’s decision found that mother had made progress on the case
plan, but not in alleviating the cause for the removal of the children from the home.
The magistrate also found that the permanency and custody plan was legal custody
to maternal aunt, continued temporary custody was not in the children’s best
interest, and the children’s return to mother would be contrary to the children’s best
interest. The magistrate’s decision contained the following factual findings:
[CCDCFS] has made reasonable efforts to finalize the permanency plan
for the [children]. These efforts are substance abuse assessment and
treatment as recommended, mental health services, and counseling
services for domestic violence. The mother has appropriate housing[;]
however, there is concern regarding mother’s ability to financially
maintain rent. The mother is unemployed and has applied for SSI. The
mother submitted to drug screening in 3/2019 which was positive
through hair follicle screening. The mother submitted to a hair follicle
screening in April which was position for cocaine but a much lower
level. Mother’s screening in May and July were negative. The Mother
needs to maintain sobriety. The Mother has been having regular
unsupervised visitations which have gone well.
Mother filed timely objections contending that the weight of the
evidence did not support the magistrate’s decision because mother substantially
complied with her case plan by (1) completing her domestic violence classes; (2)
compliance with her mental health services and aftercare with Murtis Taylor where
she also addressed her substance abuse concerns; (3) securing safe, stable, and
appropriate housing with regular appropriate unsupervised visits; and (4) her urine
drug screens had been negative since March, and all hair follicle screens had been
negative since May.
The agency opposed mother’s objections, contending that although
mother had made progress toward her case plan, compliance with the case plan was
not substantial because she had not demonstrated six months of sobriety, had not
provided proof of employment or other source of income, and was behind in paying
her rent. The agency contended that competent and credible evidence supported
the magistrate’s decision that mother failed to alleviate the conditions that caused
the children’s removal.
On October 11, 2019, the trial court conducted a hearing on mother’s
objections. The court stated in its journal entry that “[t]here has been compliance
on the case plan by mother and progress has not been made in alleviating the cause
for removal of the [children] from the home. Mother no longer has her own
housing.” Although the court found that returning the children to mother’s home
would be contrary to the children’s best interests and welfare, the court noted that
the custody and the permanency plan was “reunification.” The court stated:
Mother reported that her landlord had failed to remedy the deplorable
conditions in her home for herself, the [children] and unborn child,
that she vacated the home and moved in with her sister and mother
(maternal grandmother) pending notification [from] CMHA regarding
her application for housing assistance.
The court continued the matter for a review hearing “to approve a permanency plan
for the [children] pending ruling upon the objections and review of the Magistrate’s
Decision.”
The trial court conducted another review hearing in December 2019.
The court stated in its journal entry that “[t]here has been compliance on the case
plan by mother and progress has been made in alleviating the cause for removal of
the [children] from the home. Mother has been approved for housing through
CMHA and placed on a wait list for 90 days pending the birth of her unborn child.”
Although the court found that returning the children to mother’s home would be
contrary to the children’s best interests and welfare, the court again noted that the
custody and permanency plan was “reunification.” The court stated:
The [children] continue to do well in relative placement and mother is
able to arrange visitation openly with the [children]. Mother continues
to reside with her sister and mother (maternal grandmother). Mother
receives TANF, and food stamp assistance. Mother reports that her
mental health provider, Murtis Taylor, is assisting her in obtaining
social security benefits.
The court continued the matter for a final review hearing “to approve a permanency
plan for the [children] pending ruling upon the objections and review of the
Magistrate’s Decision.”
On March 12, 2020, the trial court conducted a final review hearing,
and a transcript of the hearing has been provided to this court. At the hearing, the
court stated that mother had not obtained housing for purposes of reunification.
During the hearing, mother alleged that CCDCFS was “resistant” to providing the
appropriate referral for housing once mother lost her housing following the
magistrate’s hearing. The court responded that mother did not raise this issue at
the prior review hearings. The agency advocated that the court overrule mother’s
objections, contending that the children had been with their maternal aunt, who also
had custody of two of the children’s biological siblings since 2017, the children have
bonded with her, and granting legal custody to maternal aunt would be in the
children’s best interest. The trial court orally overruled mother’s objections and
granted legal custody to maternal aunt with parenting time to mother. Accordingly,
the trial court affirmed, approved, and adopted the magistrate’s decision as
amended by the court.
Mother now appeals, raising two assignments of error, which will be
addressed together.
I. Standard of Review
A trial court’s ruling on objections to a magistrate’s decision lies
within the discretion of the trial court, and will not be reversed on appeal absent an
abuse of discretion. Hissa v. Hissa, 8th Dist. Cuyahoga Nos. 99498 and 100229,
2014-Ohio-1508, ¶ 17. An abuse of discretion occurs when the court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). A juvenile court’s decision regarding a child’s best
interest in a legal-custody proceeding, if supported by competent, credible evidence,
is not unreasonable. In re A.W., 1st Dist. Hamilton No. C-140142, 2015-Ohio-489,
¶ 10, citing In re Wilkenson, 1st Dist. Hamilton Nos. C-010402 and C-010408, 2001
Ohio App. LEXIS 4589, 5-6 (Oct. 12, 2001).
II. Legal Custody
Mother raises the following assignments of error:
I. The trial court’s award of legal custody to [CCDCFS], despite
[the agency’s] failure to make reasonable efforts to eliminate the
continued removal of the children from their home and to return
the children to their home, violated state law and [mother’s]
right to due process of the law as guaranteed by the Fourteenth
Amendment to the United States Constitution and Section 16,
Article I of the Ohio Constitution.
II. The trial court’s decision to award legal custody to the maternal
aunt was an abuse of discretion.
Pursuant to R.C. 2151.419, the agency that removed the child from the
home must have made reasonable efforts to prevent the removal of the children
from the children’s home, eliminate the continued removal of the child from the
home, or make it possible for the child to return home safely. It is the agency’s
burden to demonstrate that it has made reasonable efforts. Id.; In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 29.
In mother’s first assignment of error, she contends that the award of
legal custody violated her due process rights because CCDCFS did not make
reasonable efforts toward reunification by failing to provide support and services to
her to assist in remedying the conditions that caused removal of the children from
her home. Specifically, she contends that CCDCFS did not make any case plan
modifications or referrals regarding housing once she lost her housing following the
magistrate’s hearing.
We initially note that mother did not raise as an objection that
CCDCFS did not make reasonable efforts toward reunification. Typically, failure to
raise a specific objection to the magistrate’s decision waives the issue on appeal. See
Juv.R. 40(D)(3)(b)(iv). However, mother’s lack of housing did not occur until after
the magistrate’s hearing. Nevertheless, we find no merit to mother’s argument
because she failed to timely raise this issue with the trial court, which would have
allowed the court to address her concerns.
The trial court conducted two review hearings before mother finally
alleged that the agency failed in its responsibilities in assisting her with obtaining
housing. Rather, the court was advised that mother attempted to remedy her
housing situation on her own, rather than seek the agency’s help. If mother felt that
CCDCFS was not providing her reasonable services regarding housing, she should
have raised this issue at the two review hearings held in October and December
2019. In fact, when mother finally raised the issue at the final hearing, the trial court
questioned why Mother did not notify the court at the prior review hearings that the
agency was allegedly not making the appropriate referrals. At that point, the court
had held the objections and the magistrate’s decision in abeyance for six months to
allow mother to achieve sobriety and fulfill her case plan objectives. Accordingly,
the trial court did not abuse its discretion in discounting mother’s untimely
complaint and objection.
Mother also contends in her first and second assignments of error
that the award of legal custody to maternal aunt was an abuse of discretion.
Legal custody is defined by R.C. 2151.011(B)(21) as follows:
[A] legal status that vests in the custodian the right to have physical
care and control of the child and to determine where and with whom
the child shall live, and the right and duty to protect, train, and
discipline the child and to provide the child with food, shelter,
education, and medical care, all subject to any residual parental rights,
privileges, and responsibilities.
Legal custody is significantly different than the termination of
parental rights because despite losing legal custody of a child, the parents of the child
retain residual parental rights, privileges, and responsibilities. R.C.
2151.353(A)(3)(c). For this reason, “‘when a juvenile court awards legal custody
following an adjudication of abuse, neglect, or dependency, it does so by examining
what would be in the best interest of the child based on preponderance of the
evidence.’” In re A.C., 8th Dist. Cuyahoga No. 108442, 2019-Ohio-5127, ¶ 15,
quoting In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 44.
“‘Preponderance of the evidence’ means ‘evidence that’s more probable, more
persuasive, or of greater probative value.’” In re C.V.M., 8th Dist. Cuyahoga No.
98340, 2012-Ohio-5514, ¶ 7, quoting In re D.P., 10th Dist. Franklin No. 05AP-117,
2005-Ohio-5097, ¶ 52.
“Unlike R.C. 2151.414(D), which sets forth specific factors that the
court must consider before terminating parental rights and granting permanent
custody, R.C. 2151.353(A)(3) does not independently set forth factors that the court
should consider for determining the child’s best interests in a request for legal
custody.” In re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 16. Thus,
the factors in R.C. 2151.414(D) are not mandatory but instructive when making a
best-interest-of-the-child determination in legal custody matters. Id.; In re M.J.M.,
8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 16. The statute instructs the court
to consider:
(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.
In this case, the testimony provided at the magistrate’s hearing
demonstrated that mother had regular unsupervised visitation with her children,
and the visits were appropriate. However, at the hearing before the trial court on
mother’s objections, maternal aunt stated that weekend visitation had become
problematic because it was interfering with A.P.’s behavior at school. She expressed
her frustration about having two sets of rules in the different households and having
to “deprogram” the children when they returned from their mother’s home.
Additionally, she expressed concern about mother allowing V.P. to use electronic
devices because V.P. had been accessing pornography.
The GAL reported that the children wanted to be with their mother as
much as they could. He stated that typically he would request an extension for
mother because of mother’s progress on her case plan and for her to achieve
sobriety, but because the children had been in temporary custody for two years,
waiting for mother to achieve six-month sobriety was not in the children’s best
interest. According to the GAL, maternal aunt is an appropriate caregiver, and a
good role model, and the children do well in her care. Additionally, the magistrate
heard testimony that maternal aunt also has custody of two of mother’s other
children, and that all the children in the household have bonded with each other.
Accordingly, the GAL recommended that the court grant legal custody to maternal
aunt because it was in the children’s best interests.
Regarding the children’s custodial history, at the time of the
magistrate’s hearing, the children had been living with their maternal aunt for over
two years. When the trial court conducted its final review hearing on mother’s
objections, the children had been in maternal aunt’s custody for over 30 months.
Accordingly, we agree with the trial court that the children deserve permanency and
stability.
Although mother had made significant progress in her case plan, she
had not maintained six months of sobriety by the magistrate’s hearing. Admittedly,
mother’s drug screens were on the downward trend, indicating no drug use, but she
was also unemployed and unable to provide proof of income. And despite having
appropriate housing at the time of the magistrate’s hearing, mother was unable to
show that she was current on her rent, which caused concern for mother being
evicted. Additionally, mother had failed to demonstrate any source of income.
Accordingly, mother had not remedied the conditions that lead to her children’s
removal.
The record before this court shows that the trial court delayed ruling
on the objections to the magistrate’s decision to allow mother to complete her case
plan and alleviate the conditions that caused the children’s removal. The trial court
afforded mother every opportunity to prove sobriety and secure housing. Mother
was able to achieve six months of sobriety; however during that time, she could not
maintain stable housing. Accordingly, competent and credible evidence was
presented to support the magistrate’s decision that mother failed to remedy the
conditions that caused the children’s removal. The trial court did not abuse its
discretion by adopting and approving the magistrate’s decision, as amended, and
awarding legal custody to the children’s maternal aunt.
Accordingly, the assignments of error are 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR