In re B.P.

[Cite as In re B.P., 2023-Ohio-1377.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE B.P., ET AL. :
: No. 112332
Minor Children :
:
[Appeal by S.P., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 27, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD21907534, AD21908236, AD21908237,
AD21908238, AD21908239 and AD21908240
Appearances:
Patrick S. Lavelle, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
EILEEN T. GALLAGHER, J.:
Appellant, Mother, appeals an order of the Cuyahoga County Court of
Common Pleas, Juvenile Division (the “juvenile court”), granting permanent
custody of her six children to appellee, the Cuyahoga County Division of Children
and Family Services (“CCDCFS” or “the agency”). She claims the following errors:
1. The trial court’s award of permanent custody to DCFS, despite
DCFS’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 appellant’s due process of law as
guaranteed by the Fourteenth Amendment of the United State
Constitution and Section 16, Article I of the Ohio Constitution.
2. The trial court’s decision to award permanent custody to DCFS was
against the manifest weight of the evidence.
3. The trial court’s failure to discuss the wishes of the children and their
relationship with Mother in determining the best interests of the
children constitutes reversible error.
We affirm the juvenile court’s judgment.
I. Facts and Procedural History
On August 30, 2021, CCDCFS filed a complaint alleging that B.P., who
was born five days earlier, was a dependent child. The complaint requested an order
granting temporary custody of B.P. to the agency and set forth the following
allegations:
1. Mother has five other children who were removed from her case [sic]
and placed in the emergency pre-dispositional custody of CCDCFS. A
complaint for abuse, neglect, and temporary custody to CCDCFS is
pending. * * *
2. The home in which the family resides is unsanitary, inappropriate,
and unsafe. The home is covered in trash, spoiled food, insects, and
feces. The only toilet in the home is non-functional and is leaking
biohazardous waste through the first floor ceiling.
3. Mother and father * * * have a domestically violent relationship.
[Father] has threatened to kill mother and the child’s siblings. Mother
has continued to maintain a relationship with [Father] and had [sic]
allowed him access to the children despite the ongoing violence.
4. Mother and [Father] fail to adequately supervise the child’s siblings.
Due to inadequate supervision, there is inappropriate sexual contact
between the child’s siblings.
5. [Father] has a prior conviction for aggravated criminal sex abuse, in
which case the victim was under the age of thirteen. [Father] is
required to register as a Tier III sex offender. * * * [Father] has several
convictions for Failure to Register and Attempted Failure to Register.
***
Following a hearing, the trial court granted the motion and placed B.P. in temporary
custody.
Less than one month later, on September 17, 2o21, CCDCFS filed
additional complaints alleging that Mother’s five other children, C.P., Nat.P.,
Na’S.P., Ni.P., and No.P., were abused and neglected. With the filing of these
complaints, the agency dismissed previously filed complaints for temporary custody
of the five children that were not resolved within the required statutory time period.
The five, nearly identical complaints reiterated the allegations set forth in the
complaint in B.P.’s case regarding the unsanitary conditions of the home, the violent
relationship between Mother and N.P., father of the five youngest of Mother’s
children, and inappropriate sexual conduct. In the prayers for relief, the agency
requested an order placing the children in the agency’s temporary custody. The five
children identified in the complaints had previously been removed from Mother’s
home in June 2021, pursuant to an ex parte telephonic order. Following a hearing,
the court adjudicated the children dependent and placed them in the agency’s
temporary custody.
In May 2022, CCDCFS filed motions in each of the children’s cases
seeking to modify temporary custody to permanent custody. Trial on the motions
commenced in November 2022. Jason Vicens (“Vicens”), a supervisor with
CCDCFS assigned to the case, testified that the agency developed a case plan for
Mother that provided services for mental-health and substance-abuse evaluations
and treatment as well as domestic violence and parenting education. (Tr. 63.)1 The
case plan also provided services aimed at helping Mother obtain suitable housing.
(Tr. 63.)
Vicens explained that although Mother completed domestic violence
and parenting education, she did not appear to benefit from those programs.
Mother completed domestic-violence education at Able Counseling in February
2022. However, after completing the program, she continued her relationship with
N.P., who had physically and sexually abused her and the children. (Tr. 65.)
Although Mother legally divorced N.P., the agency did not find the divorce “genuine”
because case workers repeatedly observed Mother and N.P. together after their
divorce. (Tr. 69, 82.) Vicens stated, “I’ve also personally seen them together at a
visit when I showed up unannounced.” (Tr. 69-70.)
Mother also completed parenting services through Catholic Charities,
but she continued to blame the children for the family’s involvement with CCDCFS.
Vicens noted that Mother failed to take responsibility for her own role creating the
conditions that caused the removal of the children. (Tr. 64.)
With respect to the mental-health component of the case plan, Vicens
explained that Mother was referred to the Juvenile Court Diagnostic Clinic because
1 Unless otherwise noted, citations to the transcript refer to the transcript of the
hearing held on November 3, 2022.
she self-reported that she had schizophrenia. Dr. Douglas Waltman (“Dr.
Waltman”), a psychologist with the Juvenile Court Diagnostic Clinic, completed a
psychological evaluation of Mother. Dr. Waltman testified that despite extensive
testing, he found no significant mental issues with Mother. He did, however,
conclude that Mother lacks insight into her own behavior and sees herself as fine
when in fact she is not. (Tr. 42.) For example, Mother knew that her husband, N.P.,
was a convicted sex offender, but she did not believe it was a valid conviction. (Tr.
40.) She also held the opinion that the CCDCFS cases concerning her children were
“entirely unwarranted.” (Tr. 39.)
Dr. Waltman explained that people like Mother, who lack insight into
themselves, “have a tendency to not take responsibility for their actions.” (Tr. 42.)
As an example, Dr. Waltman testified that Mother provided excuses as to why her
home was in disarray. He also explained that Mother views herself as an innocent
victim of CCDCFS. (Tr. 42-43.)
Vicens testified that housing was a component of Mother’s case plan
because she and the children were living in “deplorable conditions” when the
children were removed. He stated:
Upon investigation, the home was found to have garbage, diapers, a
large amount of flies/insects, [a] broken front door window, a bunch of
spindles missing from the stairs, [and] feces smeared on the wall.
The toilet from upstairs was so not properly working that it was leaking
through the ceiling.
Also the children’s bedding was not appropriate in terms of cleanliness.
So there was a lot of issues with the condition of the home.
(Tr. 66.) Although Mother was afforded services to help her remedy problems in the
home or to otherwise obtain suitable housing, Mother refused to allow Vicens access
to the house for an inspection. (Tr. 67.) Vicens explained:
I know I’ve attempted to see the * * * home on at least four occasions
throughout the life of the case, most recently this past summer which
once again I didn’t get access to, and prior to that was in February 2022
which I did not get access, but upon going to the home there was at least
10 to 14 bags of trash next to the porch in various stages of
decomposition in terms of discarded food, but also beer and liquor
bottles that I observed.
(Tr. 67.) Therefore, Vicens was unable to say that Mother had remedied the
conditions in the home that contributed to the children’s removal.
Vicens testified that he referred Mother for a drug and alcohol (“AOD”)
assessment through Moore Counseling after she tested positive for cocaine on a five-
panel hair follicle test in September 2021. (Tr. 84.) Mother never completed the
AOD assessment. According to Vicens, Mother blamed the positive drug-test result
on the fact that she kissed N.P. on the lips. (Tr. 84.) Vicens was concerned that
Mother was minimizing the seriousness of her substance-abuse problem and the fact
that she continued a romantic relationship with someone who was using illegal
substances. (Tr. 84.)
As previously stated, N.P. is the father of Mother’s five youngest
children. J.G. is the father of C.P. N.P., father of Mother’s youngest five children,
did not engage in any of the services offered as part of his case plan. (Tr. 68-69.) He
also failed to verify a residence that could be investigated by CCDCFS. (Tr. 68-69.)
According to Vicens, C.P.’s father, J.G., is mentally disabled and is unable to take
custody of C.P. (Tr. 72.) Indeed, J.G.’s brother has been appointed to serve as J.G.’s
guardian. (Tr. 72.)
C.P. was placed in a residential treatment facility due to her
particularized needs and behaviors. (R. 291, GAL report.) Laurie Nagle (“Nagle”),
C.P.’s therapist at Genacross Family and Youth Services, testified that C.P. has been
undergoing both individual and group therapy to address anxiety related to her
history of sexual and physical abuse. (Tr. 16.) C.P. reported to Nagle that her
stepfather, N.P., raped her multiple times over a period of years before she was
removed from Mother’s custody when she was 14 years old. (Tr. 16-18.) C.P. told
Mother about the rapes multiple times, and Mother put a lock on C.P.’s bedroom
door to keep her safe. (Tr. 19.) There was no evidence that Mother reported the
rapes to police or that she took any other action.
C.P. disclosed to Nagle that she witnessed N.P. performing oral sex on
her youngest sister and that N.P. whipped her younger brothers and sisters with a
belt many times. (Tr. 19.) C.P. also observed N.P. attempt to choke Mother and
forced Mother to perform oral sex on him. (Tr. 20.) Although C.P. now lives in a
residential treatment facility, she fears that N.P. will show up with a gun and rape
her. (Tr. 21.)
Felicia Croston (“Croston”), a licensed social worker with National
Youth Advocates Program, testified that she is Na’S.P.’s therapist. Na’S.P. was five
years old at the time of trial. (Tr. 52.) Croston testified that she was helping Na’S.P.
“learn to deal with the trauma, sexual, and physical abuse from her parents.” (Tr.
50.) Na’S.P. reported to Croston that N.P., whom she refers to as her “old dad,” hit,
pinched, and slapped her. She also reported that Mother touched her vagina and
stuck a plastic knife in her vagina. (Tr. 52-53.) Na’S.P. further disclosed that N.P.
also sexually abused her. (Tr. 53.) Vicens testified that Na’S.P. refused to visit her
parents. Vicens stated:
[Na’S.P.] has been adamant from day one that she does not want to visit
with her parents to the point of, you know, shutting down or being very
clingy with the foster parent prior to visits, and also showing concern
for her siblings to go to visits.
(Tr. 72.)
When asked about visitation with the other children, Vicens stated
that Nat.P., No.P., Ni.P., and B.P. visited with Mother. The children, who all suffer
from asthma, were living in two different foster homes. According to Vicens, both
foster families reported that the children had increased breathing difficulties that
required additional treatments after visits that were not normally required. (Tr. 92.)
Vicens explained that the visits exacerbated their breathing difficulties to the point
that the children’s doctor wanted to stop the visits. (Tr. 93.) Vicens explained that
because all the children experienced exacerbation of their breathing difficulties
following visits and the children live in two different homes, the problem does not
originate in the homes but with the visits themselves. (Tr. 93.) Both foster families
also reported that the children were clingy after the visits. (Tr. 91.)
In separate journal entries, the juvenile court granted the agency’s
motion to modify custody and ordered that all of Mother’s children be placed in the
agency’s permanent custody. The court also found, by clear and convincing
evidence, that returning custody of the children to either of their parents would be
contrary to the children’s best interests. Mother now appeals the juvenile court’s
judgment.
II. Law and Analysis
A. Reasonable Efforts at Reunification
In the first assignment of error, Mother argues that the juvenile court
failed to make adequate findings relating to the agency’s reasonable efforts to
reunify her with the children pursuant to R.C. 2151.419.
This court addressed the first issue in Mother’s argument in In re C.N.,
8th Dist. Cuyahoga No. 81813, 2003-Ohio-2048, wherein we explained:
R.C. 2151.419 requires the court to determine whether the public
children services agency that filed the complaint in the case has made
reasonable efforts to make it possible for the child to return safely
home. However, that statute applies only to hearings held pursuant
R.C. 2151.28, division (E) of R.C. 2151.31, R.C. 2151.314, R.C. 2151.33 or
R.C. 2151.353. The motion for permanent custody in this case was filed
pursuant to R.C. 2151.413. Therefore, the reasonable efforts
demonstration is not required in the instant permanent custody
analysis.
Id. at ¶ 37. See also In re I.A.-W., 8th Dist. Cuyahoga No. 111217, 2022-Ohio-1766,
¶ 17 (juvenile court is not required to make a reasonable-efforts determination when
it was ruling on a motion for permanent custody); In re Baby Boy M., 8th Dist.
Cuyahoga No. 91312, 2008-Ohio-5271, ¶ 41 (same).
Mother concedes existing precedent from this court holds that
reasonable-efforts findings are not required in permanent custody cases but argues
that this court’s precedent misinterprets the law. However, the Ohio Supreme Court
has also held that a juvenile court is not required to make a reasonable-efforts
determination when ruling on a motion for permanent custody. In In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, the Ohio Supreme Court
explained:
By its terms, R.C. 2151.419 applies only at hearings held pursuant to
R.C. 2151.28, 2151.31(E), 2151.314, 2151.33 or 2151.353. See R.C.
2151.419(A)(1). These sections involve adjudicatory, emergency,
detention, and temporary-disposition hearings, and dispositional
hearings for abused, neglected, or dependent children, all of which
occur prior to a decision transferring permanent custody to the state.
The statute makes no reference to a hearing on a motion for permanent
custody. Therefore, “[b]y its plain terms, the statute does not apply to
motions for permanent custody brought pursuant to R.C. 2151.413, or
to hearings held on such motions pursuant to R.C. 2151.414.” In re
A.C., supra, 2004-Ohio-5531, ¶ 30.
This does not mean that the agency is relieved of the duty to make
reasonable efforts. At various stages of the child-custody proceeding,
the agency may be required under other statutes to prove that it has
made reasonable efforts toward family reunification. To the extent that
the trial court relies on R.C. 2151.414(E)(1) at a permanency hearing,
the court must examine the “reasonable case planning and diligent
efforts by the agency to assist the parents” when considering whether
the child cannot or should not be placed with the parent within a
reasonable time. However, the procedures in R.C. 2151.414 do not
mandate that the court make a determination whether reasonable
efforts have been made in every R.C. 2151.413 motion for permanent
custody.
Therefore, we hold that R.C. 2151.419(A)(1) does not apply in a hearing
on a motion for permanent custody filed pursuant to R.C. 2151.413.
However, except for some narrowly defined statutory exceptions, the
state must still make reasonable efforts to reunify the family during the
child-custody proceedings prior to the termination of parental rights.
If the agency has not established that reasonable efforts have been
made prior to the hearing on a motion for permanent custody, then it
must demonstrate such efforts at that time.
Id. at ¶ 41-43.
The juvenile court in this case previously determined that the agency
had made reasonable efforts to prevent removal of the children from Mother’s home
when it granted predispositional temporary custody of the children to CCDCFS. In
separate journal entries dated September 20, 2021, the court found, in relevant part:
The Court further finds that reasonable efforts were made to prevent
the removal of the child from the home. Relevant services provided to
the family and the reasons those services were not successful: Mother
was referred to Murtis Taylor and Catholic Charities and Court’s
Diagnostic Clinic.
Father has been linked with Beech Brook for parenting education.
Father was referred for hair follicle testing and possible domestic
violence education.
Thereafter, Mother appeared with counsel for an adjudicatory hearing in December
2021. At that time, Mother stipulated to the allegations of the complaint, as
amended, and the children were adjudged to be dependent and placed in the
temporary custody of the agency. In separate journal entries, the court made
relevant findings similar to the following:
The Court finds that the Cuyahoga County Division of Children and
Family Services has made reasonable efforts to prevent 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 home. The case specific
findings are:
Mother’s case plan objectives are parenting education, domestic
violence education, substance abuse and basic needs. The parents, on
their own, went to Beech Brook for parenting education. Supportive
visits have started. There is a parenting coach through Beech Brook.
Domestic violence education services are being sought through
Catholic Charities or Beech Brook. Mother was referred to Moore
Counseling for substance abuse for cocaine.
Father’s case plan objective are parenting education, domestic violence
education and substance abuse. A referral was made for domestic
violence education. A drug screen needs to be completed.
The child is participating in counseling.
(R. 131, AD21907543.) The trial court also issued a journal entry in each child’s case
on July 5, 2022, explicitly finding that “CCDCFS has made reasonable efforts to
finalize a permanency plan. Those efforts include: substance abuse, parenting,
domestic violence, mental health, and housing.” (R. 224, AD21907543; R. 235,
AD21908236; R. 170, AD21908237; R. 165, AD21908238; R. 165, AD21908239;
R. 169, AD21908240.)
None of these findings were challenged by way of objection or appeal.
Therefore, because the trial court made reasonable-efforts findings during the
pendency of these cases before the permanent-custody proceedings, the
requirements of R.C. 2151.419 were satisfied. Moreover, despite Mother’s argument
to the contrary, the court also made the following reasonable-efforts findings in each
of the judgment entries granting the agency’s motion for permanent custody:
The Court further finds that reasonable efforts were made to prevent
the removal of the child from her home, or to finalize the permanency
plan, to wit: reunification. Case plan services for mother include
mental health, domestic violence, and housing. Mother completed a
mental health assessment at the diagnostic clinic. Mother completed
parenting classes, however has not benefited from those services.
Mother completed domestic violence through Able Counseling, but has
not benefited from those services. It is unknown if Mother has housing.
The Father never engaged in case plan services.
* * *
The Court further finds that following the placement of the child
outside the child’s home and notwithstanding reasonable case planning
and diligent efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the home,
the parent has failed continuously and repeatedly to substantially
remedy the conditions causing the child to be placed outside the child’s
home.
Therefore, the juvenile court not only complied with the requirements of R.C.
2151.419 in its journal entries granting temporary custody of the children to the
agency, it also made reasonable-efforts findings in its final judgment entries
granting permanent custody of the children to the agency even though it was not
required to do so. We discuss the evidence supporting those findings in our analysis
of the second assignment of error. Accordingly, the first assignment of error is
overruled.
B. Manifest Weight of the Evidence
In the second assignment of error, Mother argues the trial court’s
decision to award permanent custody of her children to CCDCFS was against the
manifest weight of the evidence. Mother contends the evidence demonstrates that
she remedied the conditions that caused the children to be removed because she (1)
divorced N.P. and there was nothing more she could do to protect her children, (2)
complied with all case plan requirements, (3) regularly visited the children and
demonstrated a bond with them, and (4) removed the dangers that caused the
children to be removed from her care in the first place.
A parent has a “fundamental liberty interest * * * in the care, custody,
and management of [his or her child].” Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982). The termination of parental rights is regarded as
“‘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. Consequently, parents “‘must be
afforded every procedural and substantive protection the law allows.’” In re Hayes,
79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d
1, 16, 601 N.E.2d 45 (6th Dist.1991).
Nevertheless, a parent’s right to the care and custody of his or her
child is not absolute. In re L.G., 8th Dist. Cuyahoga No. 110789, 2022-Ohio-529,
¶ 49. “‘[T]he natural rights of a parent * * * are always subject to the ultimate welfare
of the child, which is the polestar or controlling principal 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).
Ohio statutes governing child custody and protection “appropriately
reflect the need to balance * * * [the] parents’ * * * interest in the custody, care,
nurturing, and rearing of their own children, and the state’s parens patriae interest
in providing for the security and welfare of children under its jurisdiction[.]” In re
Thompson, 10th Dist. Franklin No. 00AP-1358, 2001 Ohio App. LEXIS 1890 (Apr.
26, 2001).
1. 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 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).
Only one of the factors listed in R.C. 2151.414(B)(1)(a)-(e) must be
established to satisfy the first prong of the two-part analysis for granting permanent
custody of a child to a child-protection agency. In re D.H., 8th Dist. Cuyahoga No.
110505, 2021-Ohio-3821, ¶ 27, citing In re L.W., 8th Dist. Cuyahoga No. 104881,
2017-Ohio-657. If any one of the factors listed in R.C. 2151.414(B)(1)(a)-(e) is
established, the court may move to the second prong of the analysis, which requires
the juvenile court to determine, by clear and convincing evidence, whether 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).
2. 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.
The juvenile court found that the children could not be placed with
either parent within a reasonable time or should not be placed with either parent
pursuant to R.C. 2151.414(E)(1). R.C. 2151.414(E)(1) provides that 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 if it finds 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.
Vicens testified that although Mother engaged in parenting and
domestic-violence education programs, she failed to benefit from those services.
(Tr. 63-64.) As an example, Vicens explained that although Mother completed
parenting classes through Catholic Charities, she continued to blame the children
for the family’s involvement with CCDCFS. Vicens stated that Mother “was
minimizing and projecting blame on others for involvement with DCFS.” (Tr. 64.)
Dr. Waltman’s testimony corroborates Vicens’s opinion. Referring to
Mother’s involvement with CCDCFS, he explained that “she portrays herself as being
an innocent victim, that the case against her from Children’s Services is
unwarranted.” He further explained, “She had explanations for why the home was
unkempt and basically did not take responsibility for any of the concerns that
Childrens Services had.” (Tr. 42-43.)
Although Mother completed the domestic-violence component of her
case plan and divorced N.P., she continued her relationship with him even though
he physically and sexually abused her and the children. (Tr. 65-66.) Indeed, a
CCDCFS’s worker observed Mother with N.P. together two days prior to trial. (Tr.
65-66.)
Mother’s case plan also required her to provide suitable housing for
the children. At the time the children were removed from her care, Mother’s house
was in a “deplorable” condition. (Tr. 66.) Throughout the pendency of the case,
Mother never allowed Vicens to inspect the house. Vicens testified that he visited
the exterior of the house and observed “at least 10 to 14 bags of trash next to the
porch in various stages of decomposition in terms of discarded food, but also beer
and liquor bottles[.]” (Tr. 67.) The guardian ad litem (“GAL”), Christina M. Joliat
(“Joliat”), also stated in her report that the “children were found in deplorable home
conditions and even without the children present [Mother] is unable to maintain
appropriate housing.” (GAL Report.) Therefore, the record contains competent,
credible evidence supporting the juvenile court’s finding that “notwithstanding
reasonable case planning and diligent efforts by the agency to assist the parent to
remedy the problems that initially caused the child[ren] 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.” Therefore, the
juvenile court properly concluded that the children could not or should not be placed
with Mother within a reasonable time pursuant to R.C. 2151.414(B)(1)(a).
3. Second Prong: Best Interests of the Children
Having determined that the manifest weight of the evidence supports
the juvenile court’s finding that the children could not or should not be returned to
either parent within a reasonable time, we now turn to the second prong of our
analysis, which requires the court to determine, by clear and convincing evidence,
whether it is in the best interest of the child to grant permanent custody to the
agency pursuant to R.C. 2151.414(D).
We recognize that, given the nature of the proceeding and the impact
the court’s decision will have on the lives of the parties concerned, the juvenile court
enjoys broad discretion in determining whether an order of permanent custody is in
the child’s best interest. In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th
Dist.1994). We, therefore, review a juvenile court’s determination of a child’s best
interests under R.C. 2151.414(D) for an 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.
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.).
R.C. 2151.414(D) provides two alternative tests for determining
whether permanent custody is in a child’s best interest. “‘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.’” 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. “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.
In this case, the juvenile court applied R.C. 2151.414(D)(1), which
requires the court to consider all relevant factors, including but not limited to (1) the
interaction and interrelationship of the child with the child’s parents, siblings,
relatives, foster parents, and out-of-home providers, and any other person who may
significantly affect the child; (2) the wishes of the child as expressed directly by the
child or through the child’s guardian ad litem; (3) the custodial history of the child;
(4) the child’s need for a legally secure placement and whether that type of
placement can be achieved without a grant of permanent custody to the agency; and
(5) whether any factors in R.C. 2151.414(E)(7) through (11) are applicable.
Although a trial court is required to consider each of the R.C.
2151.414(D)(1) factors in making its permanent-custody determination, “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. And, only
one factor needs to be resolved in favor of permanent custody in order to find that
permanent custody is in the child’s best interest. In re S.C., 8th Dist. Cuyahoga No.
102350, 2015-Ohio-2410, ¶ 30. 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). In re A.M., 166
Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d 1, ¶ 31. “Consideration is all the statute
requires.” Id.The journal entries granting permanent custody of the children to the
agency in this case state that the court considered
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
the 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 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[.]
(R. 263, AD21908240.)
The court’s journal entry establishes that the court considered the
factors set forth in R.C. 2151.414(D)(1), and evidence in the record supports the
court’s conclusion that permanent custody is in the children’s best interests. With
respect to the interaction and interrelationship of the children with their parents,
siblings, relatives, and foster parents, several witnesses testified that C.P. and
Na’S.P., two of the older children, refused to visit with their parents because they
were afraid of them as a result of prior physical and sexual abuse. (Tr. 21, 26, 52, 55,
72.) The GAL also noted that C.P. and Na’S.P. were fearful of their parents and
refused to visit them. The other four children had visits with Mother, but they
displayed regressive behaviors after visits and their breathing issues were noticeably
exacerbated by the visits. (Tr. 72-75, 91-95, 112.) Thus, this factor weighed in favor
of permanent custody because the children were clearly not comfortable visiting
their parents.
R.C. 2151.414(D)(1)(b) requires consideration of the child’s wishes as
expressed directly or through a GAL. At the time of trial, the children were 16, 6, 4,
3, 2, and 1 year old. Thus, the five youngest children lacked the capacity to express
their wishes in a meaningful fashion. The oldest child, C.P., is a “highly autistic child
with ADHD.” (Tr. 20, 70.) C.P.’s therapist testified that C.P. refuses to speak to
Mother, does not want to have contact with her, and does not want to go home with
her. (Tr. 26.) The GAL notes in her written report that Na’S.P. “continues to refuse
to visit and has made disclosures regarding abuse by [Mother, N.P., and C.P.].” She
also states that C.P. has refused all contact with Mother due to her continued
relationship with N.P. (Tr. 291, AD21908236.) And, based on her investigation, the
GAL recommended to the court that it grant permanent custody of the children to
CCDCFS.
R.C. 2151.414(D)(1)(c) requires consideration of the children’s
custodial history, including whether the child has been in temporary custody for 12
or more months of a consecutive 22-month period. R.C. 2151.414(D)(1) provides,
that for purposes of R.C. 2151.414(D)(1),
a child shall be considered to have entered the temporary custody of an
agency on the earlier of the date the child is adjudicated pursuant to
section 2151.28 of the Revised Code or the date that is sixty days after
the removal of the child from home.
The oldest five children were removed from Mother’s custody
pursuant to an ex parte telephonic order on June 23, 2021. The youngest child, B.P.,
was removed by another ex parte telephonic order on August 28, 2021, three days
after his birth. The permanent custody trial began on November 7, 2022. Therefore,
the children were in temporary custody for over 12 months of a consecutive 22-
month period at the time of trial.
Finally, R.C. 2151.414(D)(1)(d) requires the court to consider the
child’s need for a legally secure placement and whether such placement can be
achieved without a grant of permanent custody. As previously stated, the juvenile
court found that the children “cannot be placed with one of the child’s parents within
a reasonable time or should not be placed with either parent.” If the juvenile court
finds by clear and convincing evidence that at least one of the enumerated factors in
R.C. 2151.414(E) exists as to each of the child’s parents, the juvenile court must find
that the child cannot or should not be placed with either parent within a reasonable
time or should not be placed with either parent. R.C. 2151.414(E).
The juvenile court found, pursuant to R.C. 2151.414(E)(1), that after
the children were placed in temporary custody and notwithstanding reasonable
planning and diligent effort by the agency to assist the parents to remedy the
problems that caused the child to be placed outside the home, the parents “failed
continuously and repeatedly to substantially remedy the conditions causing the
child to be placed outside the child’s home.” (R. 263, AD21908240.) And, as
previously stated, this finding is supported by competent, credible evidence. Having
found that one of the enumerated factors in R.C. 2151.414(E) exists as to each of the
child’s parents, the juvenile court had to find that the child cannot be placed with
either parent within a reasonable time or should not be placed with either parent.
R.C. 2151.414(E).
None of the parents filed any motions suggesting that an alternative
caregiver might be available for any of the children. Vicens testified that the agency
attempted to find relatives who might qualify to serve as alternative caregivers for
the children, but those efforts were not successful. (Tr. 76-78, 83, 88-89.)
Moreover, the GAL testified that the children were doing well in their foster homes
and that C.P. was progressing in her group home. (Tr. 111.) Again, the GAL
recommended that the children be placed in permanent custody.
Based on the evidence presented, we cannot say that the juvenile court
acted unreasonably, arbitrarily, or unconscionably in determining that permanent
custody was in the children’s best interests. We, therefore, overrule the second
assignment of error.
C. The Children’s Wishes
In the third assignment of error, Mother argues the trial court erred
in failing to discuss the children’s wishes and their relationships with their parents
in the judgment entries granting permanent custody of the children to CCDCFS.
However, as previously stated, “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. See also In re M.S.K., 8th Dist. Cuyahoga
No. 111974, 2023-Ohio-316 (same).
The juvenile court’s journal entries granting permanent custody
expressly state that the court considered the best-interest factors in R.C.
2151.414(D)(1)(a) through (e). And, as discussed in our analysis of Mother’s second
assignment of error, the evidence adduced at the permanent custody trial clearly and
convincingly supports the juvenile court’s findings. Therefore, the third 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 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, JUDGE
LISA B. FORBES, P.J., and
MICHAEL JOHN RYAN, J., CONCUR