IN RE: A.C., ET AL. Minor Children [Appeal by P.B., Father]
No. 105336
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 1, 2018
2018-Ohio-384
Blackmon, J., E.A. Gallagher, A.J., and Jones, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 13908673, AD 13908674, and AD 13908675
Jeffrey Froude
P.O. Box 7711122
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
C.C.D.C.F.S.
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Anthony R. Beery
Cheryl Rice
Assistant County Prosecutors
4261 Fulton Parkway
Cleveland, Ohio 44144
Also Listed
Attorney for Child
John M. Stryker
Stryker Law Co., Ltd.
20006 Detroit Road, Suite 310
Rocky River, Ohio 44116
L. C. (Mother)
Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
602 Rockefeller Building
614 W. Superior Avenue
Cleveland, Ohio 44113
Guardians Ad Litem
Carla L. Golubovic
P.O. Box 229127
Parma, Ohio 44129
Gail A. Nanowsky
P. O. Box 26060
Fairview Park, Ohio 44126
T.H. (Maternal Grandmother)
Theodore Amata
12107 Mayfield Road, Suite 202
Cleveland, Ohio 44106
{¶1} P.B. (“Father“) appeals the juvenile court‘s decision terminating his parental rights and awarding permanent custody of his children B.B., C.C., and A.C. to the Cuyahoga County Department of Children and Family Services (“CCDCFS“). Father assigns the following error for our review:
I. The trial court erred in granting permanent custody of the minor children to Cuyahoga Division of Children and Family Services because clear convincing evidence was not presented excluding Father from reunification with his children in any of the factors of
O.R.C. § 2151.414(E) or (D).
{¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.
{¶3} On June 14, 2013, CCDCFS filed a complaint requesting permanent custody of B.B., whose date of birth is March 10, 2008; C.C., whose date of birth is July 7, 2009; and A.C., whose date of birth is May 22, 2011. The children were in the legal custody of a maternal relative at the time, after having been previously adjudicated dependent.1 The complaint in the case at hand alleged that all three children were dependent and that A.C. was abused. Specifically, the complaint alleged that the maternal relative was no longer willing to care for the children because of the children‘s mother‘s (“Mother“) and maternal grandmother‘s interference. The complaint further alleged that the children had returned from visiting maternal grandmother with “unexplained bruising, lice, and bed
{¶4} The complaint also alleged that Mother and Father suffer from mental illness, which “interferes with [their] ability to provide safe and adequate care of [their] children,” Father “lacks a stable environment to provide for the basic needs of his children,” and “Father is currently involved in a domestically violent relationship.”
{¶5} The court held a hearing on August 2, 2013, and granted pre-adjudicatory temporary custody to CCDCFS. On January 21, 2014, the court found “that the allegations of the complaint have been proven by clear and convincing evidence” and adjudicated the children dependent.
{¶6} On September 15, 2014, Father stipulated to the disposition of permanent custody to CCDCFS. After several hearings, the court terminated Mother‘s parental rights and committed the children to the permanent custody of CCDCFS.
{¶7} Father appealed, and this court reversed, finding that the juvenile court failed to comply with
{¶8} The case was remanded to the juvenile court and, on January 25, 2016, CCDCFS filed an amended case plan, which changed CCDCFS‘s custody status from permanent to temporary and reinstated services for Father. The court held a hearing on March 30, 2016, and on April 6, 2016, adjudicated the children dependent. As to Father,
{¶9} After the present appeal was instituted, we remanded the case to the trial court for compliance with this court‘s decision in In re: R.G., 8th Dist. Cuyahoga No. 104434, 2016-Ohio-7897 (holding that a trial court has a duty under the Indian Child Welfare Act to direct an inquiry to the participating putative parents concerning potential Native American ancestry). See also Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), https://perma.cc/3TCH-8HQM (stating that state courts must ask each participant in an emergency or voluntary or involuntary child custody proceeding whether the participant knows or has reason to know that the child is an Indian child); 81 Fed.Reg. 96476. The trial court complied with our limited remand and issued a journal entry finding that no Native American ancestry has been established.
Standard of Review
{¶10} We review the court‘s granting permanent custody to CCDCFS under the following standard:
R.C. 2151.414 establishes a two-part test for courts to apply when determining a motion for permanent custody to a public services agency.The statute requires the court to find, by clear and convincing evidence, that (1) granting permanent custody of the child to the agency is in the best interest of the child under R.C. 2151.414(D) , and (2) either the child (a) cannot be placed with either parent within a reasonable period of time or should not be placed with either parent if any one of the factors inR.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of the child; or (d) has been in the temporary custody of one or more public or private children services agencies for twelve or more months of a consecutive 22-month period.R.C. 2151.414(B) .
In re J.M-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560, ¶ 26.
Custody Hearing Testimony
Mental Health Professional
{¶11} On October 24, 2016, Dr. Amy Justice, the clinical psychologist who conducted Father‘s psychological evaluation through the Cuyahoga County Juvenile Court‘s Diagnostic Clinic, testified as follows: She saw Father in May 2016, and “completed the report after looking at the collateral information in early July of this year.” In 2013, Father took an IQ test and “scored in the range of intellectual deficiency mild,” with a full scale score of 65. Dr. Justice explained this score as being at “the tail end, if you‘re looking at, for example, a bell curve, and it would be the tail end where about 2 percent of people score. * * * On the lower end.” According to Dr. Justice, Father‘s “[l]anguage use reflected concrete content likely in relation to limited cognition.” The doctor further explained that “sometimes it‘s harder for people who have concrete ways of thinking to understand more abstract or higher order thinking.”
{¶12} Dr. Justice testified that, despite Father‘s “extensive history of mental illness requiring numerous psychiatric hospitalizations, * * * [c]urrently [Father] denied virtually
{¶13} Dr. Justice recommended that Father “participate in psychiatric consultation to investigate any potential benefit to him from pharmacotherapy [and] counseling services to help him address problems in living as they arise and so forth.” Dr. Justice noted that, previously, Father “dropped out of treatment without following up and completing it * * *.”
{¶14} On cross-examination, Dr. Justice testified regarding the parenting skills of someone “on the low end of the bell curve” intellectually: “There are some people who can parent well within that category, and then other people who cannot.” Dr. Justice further testified that she did not assess whether Father “was a fit or unfit parent.”
Foster Father
{¶15} At the October 25, 2016 hearing, Arthur M. Falls testified that he and his wife have been the children‘s foster parents for approximately five years.3 When the
{¶16} Falls testified that the children visit Father and Mother every other Wednesday. Falls drives them from their home in Canton to Cleveland after school for a two-hour visit. The travel time is one hour and 15 minutes each way. Falls testified that Father has been “very consistent” with visitations and usually brings the children a snack or something to drink. Falls does not stay to “watch the interaction with the children“; rather, he drops them off and picks them up.
Social Workers
{¶17} Venita Wiggins, who was the CCDCFS case worker for the children through December 2014, testified that, in her opinion, “it‘s in the best interest of the children to remain where they are. I believe they‘ve been there for the greater part of their lives in the foster system with the foster parents. So I think in my opinion that they are where they need to be.”
{¶18} Mi-Lin Tate, who is the current CCDCFS case worker for the children, testified that Father‘s case plan services include basic needs and mental health.
{¶19} As to Father‘s mental health services, Tate did not make any referrals “due to his choice of wanting to go to Murtis Taylor where he had already been going.” Tate testified that there was no need for referrals because Father was already using mental health services. However, when Tate contacted a representative at Murtis Taylor, she learned that Father had an updated assessment, but he “did not follow up” with his services after that. Tate further testified that Father did not provide her any information regarding the status of his mental health services.
{¶20} Asked if she was aware that Murtis Taylor would not accept Father‘s insurance, Tate testified, “that‘s not information I was given.” Tate testified that if she was aware that insurance was an issue, CCDCFS policy would have been to make a referral for mental health services.
{¶21} Tate testified that Father‘s visits with the children “go well.” “He does bring snacks for the kids. He tries. He brings a juice box and a bag of chips or a bag of cookies generally for them to eat. And he interacts with the children. He plays music,
{¶22} Tate was also concerned about Father receiving assistance with bus tickets to and from his visits with the children. “The concern basically is * * * that he can actually do it on his own, to show that he has the means to do it on his own, such as even taking care of the children and providing transportation for the children when necessary without using assistance such as the Collab,4 because the Collab won‘t be there all the time.”
Father
{¶23} Father testified that, approximately one week prior to the hearing, he moved into the downstairs unit of a duplex. According to Father, he rented this place by himself for $450 per month, and it has four bedrooms. Father further testified that he did not inform Tate or anyone else that he relocated; in fact, he spoke with Tate the week before the hearing and told her he was still living with his sister. Father testified that he receives $783 per month in disability, and that after paying rent, he would have about $200 left each month, but that he “could stretch it out” to provide for his three children.
{¶24} Father testified that he was not currently receiving mental health services, because Murtis Taylor never called him back. Additionally, Father acknowledged that he had his parental rights terminated as to two other children.
Guardian Ad Litem
{¶25} The children‘s guardian ad litem (“the GAL“) filed a report dated July 27, 2016, recommending that the children should be placed in the permanent custody of CCDCFS. Specifically as to Father, the GAL reported as follows: Father has mental health issues that interfere with his “ability to provide safe and adequate care of their children.” Father‘s home environment is not “appropriate or adequate to meet the basic needs of the children.” Father stated to the GAL that he intended to secure suitable housing; however, the GAL was “unaware of any alternative housing for the Father, to date.” Additionally, Father “failed to complete Case Plan services/objectives.” The GAL noted that “[t]he children have been out of the care and control of the Mother and the Father for nearly five years.” (Emphasis sic.)
{¶26} The GAL testified that permanent custody to CCDCFS was in the children‘s best interest:
[B]ecause of the length of time that they‘ve been out of their parents’ care and control. The children have been removed for five years. It‘s in their best interest because they have a very strong bond of attachment to their foster family. They have a foster mother, foster father that are able to meet all of their basic needs, all of the specialized needs of the children.
It is my opinion that not any of the parents and not the maternal grandmother are able to provide for the children appropriately. And the children have a strong bond of attachment with one another and they are entitled to a stable home. They‘re entitled to a life where their needs are going to be met and where they are a priority, and I believe they have that.
{¶27} The GAL further testified that the foster family has “a lovely home.”
It‘s child-centered. The girls have a bedroom together. The boys have a bedroom together. The backyard is huge. * * * They have a lot of activities. There‘s a lot of toys.
The children are very happy. There are five dogs in the home but they‘re very small, tiny dogs * * *. The children interact with the dogs appropriately. They don‘t present any risk. The home is very clean.
[The foster father], when he wasn‘t working, was a stay-at-home father and spent his day with [J.S.] and made sure the children were on the bus, took [A.C.] to his pre-kindergarten class, to church, and back again.
They were meeting every need of the children, and the children were very bonded to them, very comfortable in the home. They were comfortable with one another.
{¶28} The GAL explained that the foster family works with B.B. “100 percent” to help her overcome her academic delays.
{¶29} The GAL testified that she had not visited Father‘s new residence, but she had observed several of Father‘s visitations with his children. Father “was happy to be there with the children, * * * he was engaged with the children, he tried to entertain them. He was appropriate.” The GAL further testified as follows concerning Father:
[I]t was very apparent to me over the past year that [Father] has great affection for his children, and he is very excited to see them and be in their presence, and he‘s very desirous of having a relationship.
I don‘t think affection is enough. I don‘t believe [Father] has the capacity to parent [his] children, not appropriately. It seems he‘s struggling on his own. By his own testimony, it took him five years to find a place to live. The home that he was living in with his sister and her family was not suitable, not suitable in any way. And [Father] knew that. [He] told me that it wasn‘t suitable.
Five years seems an excessive amount of time if you know that your children are in custody to, you know, make attempts and actually provide basic needs and a home structure for them.
Juvenile Court‘s Findings
{¶30} On October 27, 2016, the court went on the record5 and found that it was in the best interest of the children to grant permanent custody to CCDCFS. Specifically, the court found that Father loves the children, although he
cannot sustain suitable housing or appropriate housing, nor can [he] provide [for] the children‘s basic needs. * * * [Father] has recently moved into a duplex that reportedly has four bedrooms and appropriate furniture, though [CCDCFS] has been unable to verify the new residence. Prior to [Father‘s] new residence he was residing with his sister [sic] that would not be appropriate for three additional children.
The parents were referred for mental health services, and in this regard [CCDCFS] certainly failed to provide [Father] with an appropriate referral,
though [Father] failed to also notify [CCDCFS] that there was an issue concerning his insurance.
{¶31} On December 5, 2016, the court issued a journal entry committing the children to the permanent custody of CCDCFS, and finding, in part, the following:
Based on the testimony, it is clear that * * * Mother * * * and Father * * * love their children, though [they] cannot sustain suitable or appropriate housing, nor can either provide for the basic needs of the minor child[ren]. * * * Father * * * recently moved into a duplex that reportedly has 4-bedrooms [sic] and appropriate furniture, though the CCDCFS Social Worker was unable to verify the new residence since Father * * * did not apprise the worker of the new address. Prior to the Father‘s new residence, he was residing with his sister, in a home that would not be appropriate for three (3) additional children. The Parents were referred for Mental Health Services and in this regard, [CCDCFS] certainly failed to provide [Father] an appropriate referral, though [Father] failed to notify CCDCFS that there were issues concerning his insurance.
{¶32} As to whether the children could or should be placed with Father, the court found that
{¶33} Under (2): “The Parents have been diagnosed with chronic mental and emotional illness which prevents the Parents [sic] to provide an adequate home for the minor child[ren] * * *.”
{¶34} Under (4): “Although the Parents demonstrated a commitment toward the child[ren] by visiting, they have failed to financially support the minor child[ren]. The
{¶35} Under (11): “The Father has had Parental Rights involuntarily terminated as to two (2) siblings” of the children.
{¶36} Additionally, the court found that various factors under
{¶37} Under subsection (b): As stated by the GAL, the children wish “to remain with the Foster Family, though the Court has considered the age of the child[ren] * * *.”
{¶38} Under subsection (c): The children were in foster care from October 2011 through June 2012; they were in the legal custody of a maternal relative from June 2012 through August 2013; and the children returned to the same foster family in August 2013 and have remained there through the pendency of this case.
{¶39} Under subsection (d): The children “cannot achieve a secure permanent placement without a grant of Permanent Custody * * *.”
{¶40} The court also found that the GAL recommended that permanent custody is in the children‘s best interest, and that CCDCFS “has made reasonable efforts to prevent the removal of the child[ren], to eliminate the continued removal of the child[ren] from [Father‘s] home, or to make it possible for the child[ren] to return home.” Furthermore, the court reiterated that Father failed to complete or benefit from case plan services,
Analysis
{¶41} All witnesses, other than Father, testified consistently that Father‘s housing situation was not appropriate for the children. Father‘s testimony that he moved into a more suitable residence is unverified and uncorroborated. As a result of this testimony, the court found that Father failed to obtain suitable housing, which was part of his case plan for more than three years.
{¶42} Furthermore, all witnesses, other than Father, testified consistently that Father suffers from chronic mental illness, which prohibits him from being able to adequately provide for his children‘s needs. According to the record, Father was not engaged in mental health services or otherwise receiving mental health treatment at the time of the hearing. Father‘s reasoning was that he was not currently experiencing any symptoms, and his regular counseling service at Murtis Taylor would not accept his insurance. This testimony is uncorroborated and inconsistent with other testimony in the record.
{¶43} Father reported to Dr. Justice that he had never been hospitalized for psychiatric reasons and generally downplayed his mental health issues. However, Father‘s psychological evaluation report shows a lengthy history of mental health problems and treatment dating back to 1999, including eight psychiatric hospitalizations,
{¶44} Father additionally self-reported to Dr. Justice that “he has been convicted of Domestic Violence four times between 2008 and 2013.” However, there is nothing in the record to corroborate or verify these convictions.
{¶45} Furthermore, although the juvenile court found that the children have “not been in [CCDCFS] custody for 12 of 22 consecutive months * * *” under
{¶46} In summary, the evidence shows that Father was aware that his case plan goals concerned appropriate housing and mental health services. Nonetheless, Father made insufficient progress in these areas during the pendency of this case. Upon review, we find clear and convincing evidence in the record to support the juvenile court‘s findings under
Compliance with 25 U.S.C. 1912
{¶48} In the case at hand, it does not appear from the record that Native American ancestry or ICWA was raised in the juvenile court proceedings. However, in response to this court‘s September 21, 2017 sua sponte order, Father claims “Native American ancestry in the Cherokee and Blackfoot tribes.” To meet the burden of proving that a child is an “Indian child” under ICWA, “the party asserting the applicability of ICWA must do more than raise the possibility that a child has Native American ancestry.” In re D.S., 8th Dist. Cuyahoga No. 101906, 2015-Ohio-2042, ¶ 16. Therefore, under the facts of the instant case, we find that the court complied with ICWA.
{¶49} Accordingly, the court did not err by granting permanent custody of the children to CCDCFS, and Father‘s sole assigned error is overruled.
{¶50} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., J., CONCURS;
EILEEN A. GALLAGHER, A.J., CONCURS
WITH SEPARATE OPINION
EILEEN A. GALLAGHER, A.J., CONCURRING WITH SEPARATE OPINION:
{¶51} I concur with the opinion of my learned colleagues but feel compelled to write separately regarding my concerns about the suitability of the current foster care placement.
{¶52} The evidence in this case is scant as to the living conditions in the foster home. There was testimony that now living in the home are foster mother, foster father, A.C., B.B., C.C. and J.S. III (the minors subject to the current litigation and companion cases now before this court.)
{¶53} In addition to those six people, testimony reflects that there are an unspecified number of tenants in the home whose identity was not revealed and there is no testimony as to the backgrounds of these persons.
{¶55} There was no testimony offered that these other persons, i.e. tenants and adult biological children have been investigated as to mental health issues, substance abuse issues, or criminal records.
{¶56} In addition, the record reflects that there are one and half bathrooms in the foster home that are used by up to nine adults and the four children.
{¶57} For those reasons, although I agree to the permanent custody being awarded to Cuyahoga County Division of Children and Family Services, I believe that the current placement be investigated.