In re B.K.

[Cite as In re B.K., 2023-Ohio-1820.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE B.K., ET AL. :
No. 112366
Minor Children :
[Appeal by J.K., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 1, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD21907898 and AD21907899
Appearances:
Dawn Snyder, Attorney at Law, LLC, and Dawn Snyder,
for appellant Mother.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee CCDCFS.
MICHELLE J. SHEEHAN, P.J.:
Appellant mother appeals from a judgment of the juvenile court
granting permanent custody of her children B.K., born in 2011, and J.K., born in
September 2020, to the Cuyahoga County Department of Children and Family
Services (hereafter “the agency”). Mother argues the trial court erred in denying her
motion for legal custody to be granted to a relative. Our review indicates that the
juvenile court properly engaged in the two-prong analysis set forth in R.C. 2151.414
and that clear and convincing evidence supports the court’s decision granting
permanent custody of the children to the agency. We therefore affirm the trial
court’s decision.
Substantive History and Procedural Background
On September 2, 2021, the children’s father committed suicide by
hanging himself in the hotel room where the family was staying after being evicted
from the home of mother’s mother (hereafter “maternal grandmother”). Soon after,
on September 8, 2021, the agency was granted emergency custody of the children.
The agency placed B.K. with the children’s adult sibling and J.K. with mother’s sister
(hereafter “maternal aunt”).
Also on September 8, 2021, the agency filed a complaint for neglect and
dependency and requested temporary custody of B.K. and J.K. to the children’s adult
sibling and maternal aunt, respectively.
On March 7, 2022, the trial court held an adjudication hearing.
Ladonna Wheeler, a supervisor in the agency’s short-term service department,
testified that the agency became involved after father committed suicide while he
was caring for the children. The family had been living in the hotel room since July
2021, and both father and mother suffered mental health and substance-abuse
problems. The agency was concerned with mother’s mental health because she had
stated after father died that she wanted to kill herself and the children. Mother also
reported that she suffered from severe anxiety and depression.
The children’s adult sibling, who was caring for B.K., testified that after
mother and father were evicted from maternal grandmother’s home, they lived in a
hotel room in the summer of 2021; B.K. stayed with her but also spent time with his
parents in the hotel. On the day father committed suicide, she went to the hotel to
help. Mother left the hotel to purchase cocaine twice. On that day, the extended
family convened in maternal aunt’s house to discuss the placement of the children,
but mother did not show up for the meeting.
After the hearing, the children were adjudicated neglected and
dependent and the court granted the agency’s motion for temporary custody of B.K.
and J.K. to their adult sibling and maternal aunt, respectively.
On March 17, 2022, the court held a dispositional hearing. Lauren
Hopkins, the social worker for the agency, testified that mother was referred to
services to address her mental health, substance abuse, and housing issues. Mother
was required to address her mental health issues: the agency learned that mother
and father had a “murder-suicide” pact and they planned to kill the children and
then commit suicide. Mother was also referred for a substance abuse assessment
because J.K. tested positive for opiates and oxycodone when he was born. Mother
never participated in any services, however. In addition, mother had not seen the
children since October 2021 — she failed to appear for the first scheduled visit and
cancelled the second visit and the social worker was unable to contact her afterward.
After the adjudication hearing, the court granted temporary custody of B.K. to the
children’s adult sibling and J.K. to maternal aunt.
On April 20, 2022, the agency filed a motion to modify temporary
custody to permanent custody. On September 13, 2022, the trial court held a
hearing to determine whether the agency made reasonable efforts to assist mother.
The agency’s social worker testified that mother did not engage in the services for
mental health, substance abuse, and parenting to which she was referred.
On November 2, 2022, mother filed a motion for legal custody to the
maternal grandmother, stating that the maternal grandmother was ready, willing,
and able to provide for the children and meet their basic needs.
On November 7, 2022, the trial court held an emergency custody
hearing. The agency reported that it recently discovered the children’s adult sibling,
who had temporary custody of B.K. and had planned for his adoption, dropped off
one of her own children at maternal grandmother’s house, where mother was
believed to be staying. The agency’s social worker reported that mother had two
outstanding warrants for her arrest and the agency considered maternal
grandmother to be an unsuitable caregiver due to mother’s presence in her house.
Because of the incident, the agency now considered the children’s adult sibling
unsuitable as well and moved for the emergency custody of B.K.
At the hearing, the GAL confirmed that B.K. did not wish to return to
mother’s care. The agency requested that B.K. be temporarily placed with the
maternal aunt, who has been caring for J.K. The trial court granted the agency’s
motion.
Permanent Custody Hearing
On December 13, 2022, the trial court held a permanent custody
hearing. Mother was incarcerated in Portage County Jail at the time and was
transported for the hearing. Lauren Hopkins, the social worker, testified for the
agency, and maternal grandmother testified on behalf of mother.
a. Social Worker’s Testimony
The social worker testified that J.K. was doing well in maternal aunt’s
care; when he was first placed with her he was not walking or crawling, and now he
was able to walk and speak. Mother had not seen J.K. since October 2021 because
mother failed to show up for scheduled visits. Mother did not participate in the
services for mental health and substance abuse. In addition, she had three pending
cases involving substance abuse: in a 2022 Portage County common pleas case, she
pleaded guilty to a fifth-degree felony drug possession offense; in a 2022 Stow
Municipal Court case, she was charged with drug paraphernalia; and in another
2022 case in the same court she was charged with an offense of drug abuse. For the
Portage County case, mother submitted a journal entry from the court that stated
the court accepted a plea of guilty to a fifth-degree felony drug-possession offense
and that she was to be assessed for intervention in lieu of conviction.
The agency had considered a placement of the children with maternal
grandmother but found her home to be inappropriate. The social worker went to
her house in July 2022 to assess its condition, but maternal grandmother did not let
her into the house. The social worker was able to view the condition of the house
the day before the permanent-custody hearing, and she found the house in disarray.
She testified that the house was “filled with a lot of junk.” She described the room
B.K. would be staying in was “filled with stuff” and “you can’t even walk in there.”
There was no bed for B.K. to sleep on in the room; the bed meant for him was in the
living room, but it was cluttered with household items. As for the room for J.K.,
maternal grandmother did not open the door for the social worker to observe its
condition because it was full of mother’s possessions. Mother had been staying in
the home but was serving a jail term for her drug offense at the time.
The social worker reported maternal aunt is interested in adopting
J.K. She is not interested in adopting B.K., however, but willing to continue to care
for B.K. until another placement becomes available. Maternal aunt would like B.K.
to be returned to the care of the children’s adult sibling, but her suitability was being
investigated by the agency after the incident where she sent her own son to be cared
for by maternal grandmother when mother was present in the house.
The social worker testified that she had observed B.K. and J.K. interact
with each other and found them to be bonded. She stated that the agency expects
them to visit each other even when they are not placed together, and she was certain
that maternal aunt would not “give up” B.K. if he could not be returned to the
children’s adult sibling, but she acknowledged that she could not “guarantee” that
the children would see each other when the agency is no longer involved in their
custody. She stated that if neither maternal aunt nor the adult sibling is interested
in caring for B.K., the agency will consider placing him with the children’s paternal
grandmother.
b. Maternal Grandmother’s Testimony
Maternal grandmother testified on mother’s behalf. She admitted that
she did not have a relationship with the children since their removal. She was not
invited to the children’s birthday parties, and when she gave gifts to J.K. for
Christmas, maternal aunt discarded them.
Maternal grandmother acknowledged that her home was not ready for
the children yet, but it will be soon because her son would help her repair various
areas in the house requiring repairs, which included a window, a back door, the
bathroom door, and the bathroom floor. Her son, however, may be moving to
Florida for work. She testified that if she was granted legal custody of the children,
she would move the clutter in the house to storage and provide a place for the
children to sleep. She would also make sure they attend school and transport them
to doctor appointments when necessary. She testified that she would choose her
grandchildren over her daughter if she has to choose between them and she would
not let her daughter return to her house when she is out of jail.
The guardian ad litem (“GAL”) for the children recommended that the
court grant the permanent custody of the children to the agency because it is in their
best interest. After the hearing, the trial court granted the agency’s motion for
permanent custody. Mother now appeals from the judgment.
Appeal
On appeal, mother raises one assignment of error for our review,
arguing that the trial court erred because an award of permanent custody to the
agency is not in the children’s best interest and that the court should have granted
mother’s motion for legal custody to maternal grandmother.
a. Standard of Review and the Two-Prong Permanent Custody
Analysis
We begin our analysis with the recognition that, while a parent’s right
to raise a child is an essential and basic civil right, In re Hayes, 79 Ohio St.3d 46, 48,
679 N.E.2d 680 (1997), children have the right to “parenting from either natural or
adoptive parents which provides support, care, discipline, protection and
motivation.” In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th
Dist.1996).
Under Ohio’s permanent custody statute, R.C. 2151.414, the juvenile
court’s judgment granting permanent custody must be supported by clear and
convincing evidence. Clear and convincing evidence has been defined as “that
measure or degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the trier of facts a
firm belief or conviction as to the facts sought to be established.” In re K.H., 119 Ohio
St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. We will not
reverse a juvenile court’s termination of parental rights and award of permanent
custody to an agency unless the judgment is not supported by clear and convincing
evidence. See, e.g., In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48;
and In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24.
R.C. 2151.414 sets forth a two-prong analysis to be applied by a
juvenile court in adjudicating a motion for permanent custody. R.C. 2151.414(B).
Under the statute, the juvenile court is authorized to grant permanent custody of a
child to the agency if, after a hearing, the court determines, by clear and convincing
evidence, that any of the five factors under R.C. 2151.414(B)(1)(a) to (e) exists and,
furthermore, permanent custody is in the best interest of the child under the factors
enumerated in R.C. 2151.414(D)(1).
Under the first prong of the permanent-custody analysis, the juvenile
court is to determine if any of the following factors exists: whether the child is
abandoned (R.C. 2151.414(B)(1)(b)); whether the child is orphaned and there are no
relatives of the child who are able to take permanent custody
(R.C. 2151.414(B)(1)(c)); whether the child has been in the temporary custody of
public children services agencies or private child placing agencies for 12 or more
months of a consecutive 22-month period (R.C. 2151.414(B)(1)(d)); whether another
child of the parent has been adjudicated as abused, neglected, or dependent on three
separate occasions (R.C. 2151.414(B)(1)(e)); or, when none of these factors apply,
whether “the 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.” (R.C.
2151.414(B)(1)(a)).
If any of these five factors under R.C. 2151.414(B)(1) exists, the trial
court proceeds to analyze the second prong — whether, by clear and convincing
evidence, it is in the best interest of the child to grant permanent custody to the
agency. R.C. 2151.414(D)(1).
b. First Prong: R.C. 2151.414(B)(1) Analysis
Here, under the first prong of the permanent-custody analysis, the
trial court found the presence of the R.C. 2151.414(B)(1)(a) factor — that B.K. and
J.K. cannot be placed with mother within a reasonable time or should not be placed
with mother.
For this finding, R.C. 2151.414(E) enumerates 15 factors for the court
to consider. In this case, the trial court found the presence of (E)(1), (E)(4), and
(E)(10) factors. Pertinent to this appeal, R.C. 2151.414(E) states, in part:
(E) In determining * * * whether a child cannot be placed with either
parent within a reasonable period of time or should not be placed with
the parents, the court shall consider all relevant evidence. If the court
determines, by clear and convincing evidence * * * that one or more of
the following exist as to each of the child’s parents, 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:
(1) 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. In determining
whether the parents have substantially remedied those conditions, the
court shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and material
resources that were made available to the parents for the purpose of
changing parental conduct to allow them to resume and maintain
parental duties.
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child[.]
***
(10) The parent has abandoned the child.
Pursuant to R.C. 2151.414(E), if the court determines, by clear and 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. See e.g., In re I.R., 8th Dist. Cuyahoga
No. 110410, 2021-Ohio-3103, ¶ 69; In re C.H., 8th Dist. Cuyahoga Nos. 82258 and
82852, 2003-Ohio-6854, ¶ 58.
Here, in support of the 2151.414(B)(1)(a) finding that the children
cannot be placed with the parent within a reasonable time or should not be placed
with the parent, the trial court found that mother failed to remedy the concerns that
prompted the removal of B.K. and J.K. despite reasonable efforts made by the
agency; she demonstrated a lack of commitment toward the children by failing to
support, visit, or communicate with the children; and she abandoned the children.
Our review reflects clear and convincing evidence relating to the (E)(1), (E)(4), and
(E)(10) factors, and mother does not challenge these findings on appeal.
c. Second Prong: Best Interest of the Child
Once the juvenile court determines that one of the five factors listed
in R.C. 2151.414(B)(1) is present, the court proceeds to an analysis of the child’s best
interest. The court undertakes this analysis with the recognition that although
parents have a constitutionally protected interest in raising their children, that
interest is not absolute and is always subject to the ultimate welfare of the child. In
re B.L., 10th Dist. Franklin No. 04AP-1108, 2005-Ohio-1151, ¶ 7; and In re N.M., 8th
Dist. Cuyahoga No. 106131, 2018-Ohio-1100.
On appeal, mother argues that it is in the best interest of the children
to be placed in the legal custody of maternal grandmother. Pursuant to
R.C. 2151.353(A)(3), if a child is adjudicated an abused, neglected, or dependent
child, the court may award the legal custody of the child to a parent or one who has
filed a motion requesting legal custody of the child. While an award of permanent
custody vests all parental rights in a public children services agency and divests the
child’s parents of all parental rights, including all residual rights, an award of legal
custody does not divest parents of their residual parental rights. In re K.C.,
2017-Ohio-8383, 99 N.E.3d 1061, ¶ 7 (1st Dist.).
“[T]he willingness of a relative to care for a child does not alter what
the court must consider in determining permanent custody,” and the court “is not
required to favor a relative if, after considering all the factors, it is in the child’s best
interest for the agency to be granted permanent custody.” In re M.S., 8th Dist.
Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 11. The issue to be resolved
by the court at the permanent custody hearing was not whether B.K. and J.K. should
be placed with maternal grandmother, but rather whether the agency’s motion for
permanent custody should be granted. In re C.H., 8th Dist. Cuyahoga No. 103171,
2016-Ohio-26, ¶ 26. “A juvenile court need not find, by clear and convincing
evidence, that a relative is an unsuitable placement option prior to granting an
agency’s motion for permanent custody.” (Emphasis sic.) Id., citing In re B.D., 4th
Dist. Ross No. 08CA3016, 2008-Ohio-6273, ¶ 29. “[I]f permanent custody to the
agency is in the children’s best interest, legal custody to [a relative] necessarily is
not.” M.S. at ¶ 11, citing In re L.C., 9th Dist. Summit No. 26816, 2013-Ohio-2799,
¶ 10. While it may be preferential in custody actions that children be placed with an
appropriate relative, the preference applies only to case plans and not to custody
determinations. C.H., 2016-Ohio-26, at ¶ 26, citing R.C. 2151.412(G) and In re
M.W., 8th Dist. Cuyahoga No. 96817, 2011-Ohio-6444, ¶ 26.
Here, the trial court found permanent custody to be in the children’s
best interest after its consideration of the factors enumerated in R.C. 2151.414(D).
In determining the best interest of the child, R.C. 2151.414(D)(1) mandates that the
juvenile court consider all relevant factors, including, but not limited to, the
following:
(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.
When analyzing the best interest of the child, “[t]here 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.
The trial court here stated it found permanent custody to be in B.K.’s
and J.K.’s best interest after its consideration of (1) the children’s interaction and
relationship with their parents, siblings, and relatives; (2) the children’s wishes; (3)
the children’s custodial history; (4) the children’s need for a legally secure
permanent placement; and (5) the report of the GAL, who recommended permanent
custody to the agency.
Regarding the children’s interaction and interrelationship with
others, the record reflects that mother had not visited with the children despite the
agency’s efforts to facilitate visitations; mother had not seen the children since
October 2021. Maternal grandmother had evicted the family from her home, and,
as she acknowledged, she did not have a relationship with the children since their
removal due to a poor relationship with maternal aunt. These factors weigh in favor
of permanent custody. Mother, citing R.C. 2151.411, argues that the trial court failed
to consider the priority of placing the two children together, which would weigh in
favor of legal custody to maternal grandmother. That statute, however, applies to
the placement of the children when they come into the custody of the agency.1
Regarding the children’s wishes, the GAL confirmed that B.K. did not
wish to return to mother. J.K., still an infant at the time of the trial, was too young
to convey his wishes. Where a child is to too young to express his or her wish, it is
proper for the juvenile court to consider the GAL’s recommendation as part of the
R.C. 2151.414(D)(1)(b) analysis. In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-
Ohio-4126, ¶ 52. The children’s GAL here recommended permanent custody to the
agency.
Regarding the children’s custodial history, the record reflects J.K. was
in the temporary custody of maternal aunt since March 22, 2022, and B.K. was in
the temporary custody of the adult sibling between March and November 2022 and
in the custody of the agency in the month preceding the permanent-custody hearing.
Regarding the question of the child’s need for a legally secure permanent placement
1 R.C. 2151.411 states:
Whenever a child comes into the custody of a public children services
agency, * * * the agency is strongly encouraged to make reasonable efforts
to place the siblings together * * *. If siblings are not placed together, the
agency should make reasonable efforts to ensure the siblings maintain
frequent connections through visitation or other ongoing interaction * * *.
(Emphasis added.)
and whether that type of placement can be achieved without a grant of permanent
custody to the agency, mother does not challenge on appeal the trial court’s finding
that the children cannot be placed with her within a reasonable time or should not
be placed with her. Mother instead argues the children should be placed in the legal
custody of maternal grandmother. By her own testimony, however, maternal
grandmother admitted her home was not ready for the children at the time of the
hearing and, although she had plans for the necessary cleanup and for the repairs to
be done by her son, there was no assurance that the repairs would be made.
Furthermore, even though she testified she would choose her grandchildren over
her daughter and would not permit her daughter to return to her residence, the
credibility of the testimony is a matter for the trial court.
Our review therefore reflects the trial court’s decision granting
permanent custody to the agency is supported by clear and convincing evidence
contained in the record. In affirming the trial court’s judgment granting permanent
custody, we are mindful that “[i]n proceedings involving the custody and welfare of
children the power of the trial court to exercise discretion is peculiarly important.
The knowledge obtained through contact with and observation of the parties and
through independent investigation cannot be conveyed to a reviewing court by
printed record.” In re V.M., 4th Dist. Athens No. 18CA15, 2018-Ohio-4974, ¶ 62,
citing Trickey v. Trickey, 158 Ohio St. 9, 106 N.E.2d 772 (1952). “‘The discretion
that the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given
the nature of the proceeding and the impact the court’s determination will have on
the lives of the parties concerned.’” In re Ch. O., 8th Dist. Cuyahoga No. 84943,
2005-Ohio-1013, ¶ 29, quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d
424 (8th Dist.).
For all the foregoing reasons, we find no merit to mother’s sole
assignment of error and affirm the trial court’s judgment granting permanent
custody to the agency.
Judgment affirmed.
It is ordered that appellee recover of 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.
___________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR