In re B.B.C.
- Reporters:
- , ,
- Before:
- Mary J. Boyle, Sean C. Gallagher, Anita Laster Mays
{¶ 1} Appellant-father (“Father“) appeals the decision of the Cuyahoga County Juvenile Court terminating his parental rights and awarding custody of his minor son, B.B.C. (d.o.b. 06/01/22), to the Cuyahoga County Division of Children
Assignment of Error I: The trial court‘s award of permanent custody to [CCDCFS], despite [CCDCFS]‘s failure to make reasonable efforts to eliminate the continued removal of the child from his home and to return the child to his home, violated state law and [Father]‘s right to due process of the law as guaranteed by the
Fourteenth Amendment of the United States Constitution andSection 16, Article 1 of the Ohio Constitution .Assignment of Error II: The trial court‘s decision to award permanent custody to [CCDCFS] was against the manifest weight of the evidence.
{¶ 2} For the reasons set forth below, we affirm.
I. Facts and Procedural History
{¶ 3} On June 14, 2022, CCDCFS filed a complaint alleging that B.B.C., who was born 13 days earlier, was an abused and dependent child. Also filed with the complaint was a motion for predispositional temporary custody of B.B.C. to CCDCFS. After a hearing held that same day, the juvenile court ordered that B.B.C. be committed to the emergency temporary custody of CCDCFS.
{¶ 4} On August 31, 2022, CCDCFS amended its complaint. The amended complaint set forth the following allegations:
1. On or about June 1, 2022, at [B.B.C.]‘s birth, Mother tested positive for cocaine, fentanyl, and amphetamines and [B.B.C.] tested positive for amphetamines, methamphetamines, benzos, cocaine, and fentanyl. [B.B.C.] was prescribed morphine to manage symptoms of withdrawal.
2. Mother has failed to visit with [B.B.C.] since she left the hospital against medical advice.
3. Mother has a long-standing substance abuse problem which prevents her from providing appropriate care for [B.B.C.]. Mother has
participated in substance abuse treatment but has failed to benefit from these services and has failed to maintain sobriety. * * *
6. Alleged father, [J.R.], is currently incarcerated after being convicted of vandalism, attempted escape, failure to comply, receiving stolen property, aggravated possession of drugs, theft and petty theft. * * * He is not eligible for release until 2026. He also has pending criminal charges of drug possession, failure to comply, and receiving stolen property.
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7. [Father] has not yet established paternity and has been unable to support, visit, or communicate with the child due to his incarceration.
(Amended complaint, Aug. 31, 2022.)
{¶ 5} The amended complaint further alleged that B.B.C. has a sibling who was also a drug-exposed infant, was adjudicated abused and neglected, and is in the permanent custody of CCDCFS. B.B.C. also has another sibling who was placed in the care of a relative through a private custody filing in Summit County, due, in part, to Mother‘s substance abuse issues. After an adjudicatory hearing held that same day, the court adjudicated B.B.C. to be abused and dependent. Father was present for the hearing and stipulated to the allegations of the amended complaint. Father, who was incarcerated at the time, was ordered to be transported back to the correctional facility, and CCDCFS was to obtain Father‘s DNA in order to establish paternity. The court continued the matter for an in-person hearing.
{¶ 6} On October 18, 2022, CCDCFS amended its dispositional request from permanent custody to temporary custody based on the establishment of Father‘s paternity and the desire to investigate potential placement with relatives.
{¶ 7} On February 2, 2023, CCDCFS filed a motion to modify temporary custody to permanent custody. The court held a trial on this matter on September 20, 2023. Mother did not appear at trial. Father appeared by video. The following evidence was adduced.
{¶ 8} CCDCFS became involved with B.B.C. at the time of his birth in June 2022 after he tested positive for various drugs. According to Deja Arthur, an extended worker in the START Department of CCDCFS (“Arthur“), Mother had not seen B.B.C. since the hospital. A case plan for Mother was developed in an effort to promote the permanency plan of reunification. The case plan included services for substance abuse, mental health, housing, parenting, and naming the child. The last time Mother had contact with Arthur was in August 2022. Arthur testified that Mother previously had her parental rights terminated in relation to B.B.C.‘s older sibling.
{¶ 9} B.B.C. has remained in continuous agency custody since the time of his removal in June 2022. According to Arthur, B.B.C. has been with a maternal cousin since September 2022 and is strongly bonded with the maternal cousin and her family. CCDCFS also investigated paternal relatives in an effort to determine if a less restrictive alternative to permanent custody might be available, but those
{¶ 10} Father testified, acknowledging that his release date from prison is in July 2026. Father testified that he was in Erie County Jail in Sandusky, Ohio when B.B.C. was born. He testified that he has tried to improve his situation by completing mental health and substance abuse classes while incarcerated.
{¶ 11} The guardian ad litem (“GAL“) recommended that the court grant permanent custody of B.B.C. to CCDCFS. Following closing arguments, the juvenile court indicated that it would take the matter under advisement. The next day, the court issued a judgment entry in which it terminated Mother‘s and Father‘s parental rights and found by clear and convincing evidence that it is in B.B.C.‘s best interest to be placed in the permanent custody of CCDCFS.
{¶ 12} The court found that reasonable efforts were made for reunification, such as referring Mother to substance abuse, mental health, parenting, housing services, and establishing a legal name for B.B.C. The court further found that B.B.C. has been in agency custody for 12 or more months of a consecutive 22-month period; B.B.C. cannot be placed with either parent within a reasonable time or should not
II. Law and Analysis
A. Manifest Weight of the Evidence
{¶ 13} We will address the second assignment error first because it discusses the standard of review on appeal. In this assigned error, Father argues that the court‘s award of permanent custody was against the manifest weight of the evidence.
1. Standard of Review
{¶ 14} At the outset, we recognize that the right to raise one‘s own child is “an ‘essential’ and ‘basic civil right.‘” In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This right, however, is not absolute. “‘The natural rights of a parent are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.‘” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974).
{¶ 15} Father argues that the trial court‘s decision to grant permanent custody of B.B.C. to CCDCFS was against the manifest weight of the evidence because the record does not support the court‘s findings that B.B.C. cannot be placed with him within a reasonable time or should not be placed with him and that permanent custody is in B.B.C.‘s best interest.
{¶ 16} The Supreme Court of Ohio has recently provided guidance on the standard of review in permanent custody cases. The Court held:
[T]he proper appellate standards of review to apply in cases involving a juvenile court‘s decision under
R.C. 2151.414 to award permanent custody of a child and to terminate parental rights are the sufficiency-of-the-evidence and/or manifest-weight-of-the-evidence standards, as appropriate depending on the nature of the arguments presented by the parties.
In re Z.C., Slip Opinion No. 2023-Ohio-4703, ¶ 18. Thus, based on Father‘s argument, we will review this matter under the manifest-weight-of-the-evidence standard.
{¶ 17} The In re Z.C. Court reexplained the manifest-weight-of-the-evidence standard as follows:
“When reviewing for manifest weight, the appellate court must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered” [Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.] “In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the
finder of fact.” Id. at ¶ 21. “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). “‘If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.“’ Id. at fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191-192 (1978).
2. Permanent Custody — R.C. 2151.414
{¶ 18}
{¶ 19} The second prong of the analysis requires the juvenile court to determine, by clear and convincing evidence, that granting permanent custody to the agency is in the best interest of the child.
a. The R.C. 2151.414(B)(1) Factors and R.C. 2151.414(E)
{¶ 20} In the instant case, the juvenile court made the findings under
{¶ 21} Here, the trial court found the presence of several (E) factors, but Father takes issue with the court‘s findings under (E)(1) and (4), which provide in pertinent part:
(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.
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(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.
{¶ 22} Father argues that CCDCFS did not engage in reasonable case planning and did not make diligent efforts to assist him in remedying the reasons for B.B.C.‘s removal. He contends the court did not have sufficient information to determine whether CCDCFS had an obligation to prepare a case plan for Father and
{¶ 23} At trial, Father admitted that he has been in prison since B.B.C.‘s birth in June 2022. The evidence revealed that he was serving several concurrent prison sentences with an expected release date of July 2026. The court found, under
{¶ 24} Father also asserts that the court‘s finding, under
{¶ 25} Having found that the juvenile court properly determined that at least one of the
b. R.C. 2151.414(D)(1) — Best Interest Determination
{¶ 26} The
{¶ 28}
{¶ 29}
{¶ 30}
{¶ 31}
{¶ 32} Based on the foregoing, we find there is clear and convincing evidence in the record to support the court‘s determination that permanent custody to CCDCFS is in the child‘s best interest. Accordingly, we find that the court‘s decision to grant permanent custody is not against the weight of the evidence as Father contends.
{¶ 33} Therefore, the second assignment of error is overruled.
B. Reasonable Efforts at Reunification
{¶ 34} In the first assignment of error, Father argues that the juvenile court failed to make adequate findings relating to CCDCFS‘s reasonable efforts to reunify
{¶ 35} We have previously addressed this issue, where 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 pursuantR.C. 2151.28 , division (E) ofR.C. 2151.31 ,R.C. 2151.314 ,R.C. 2151.33 orR.C. 2151.353 . The motion for permanent custody in this case was filed pursuant toR.C. 2151.413 . Therefore, the reasonable efforts demonstration is not required in the instant permanent custody analysis.
In re C.N., 8th Dist. Cuyahoga No. 81813, 2003-Ohio-2048, ¶ 37, citing In re Llewellyn, 5th Dist. Fairfield Nos. 02CA10, 02CA11 and 02CA12, 2003-Ohio-1102. See also In re B.P., 8th Dist. Cuyahoga No. 112332, 2023-Ohio-1377, ¶ 19; 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).
{¶ 36} Father 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, in In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, the Ohio Supreme Court also held that a juvenile court is not required to make a reasonable-efforts determination when ruling on a motion for permanent custody. The In re C.F. Court explained:
By its terms,
R.C. 2151.419 applies only at hearings held pursuant toR.C. 2151.28 ,2151.31(E) ,2151.314 ,2151.33 or2151.353 . SeeR.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 toR.C. 2151.413 , or to hearings held on such motions pursuant toR.C. 2151.414 .” [In re A.C., 12th Dist. Clermont No. CA2004-05-041, 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 inR.C. 2151.414 do not mandate that the court make a determination whether reasonable efforts have been made in everyR.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 toR.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.
{¶ 37} In this case, the juvenile court previously determined that CCDCFS had made reasonable efforts to prevent removal of B.B.C. from the home when it granted predispositional temporary custody to CCDCFS. In a journal entry dated June 14, 2022, the juvenile court found, in relevant part:
The Court further finds that the Agency made reasonable efforts to prevent the removal of the child from the home, to eliminate the continued removal of the child from the home, or to make it possible for the child to return home.
The relevant services provided by the Agency to the family of the child and the reasons those services did not prevent the removal of the child from the home or enable the child to return home are as follows: drug and alcohol, parenting plan, mental health, which mother was evasive to.
{¶ 38} Thereafter, Father appeared with counsel for an adjudicatory hearing in August 2022. At that time, Father stipulated to the allegations of the complaint, as amended, and B.B.C. was adjudged abused and dependent. The matter was continued for an in-person disposition in October 2022. Father appeared again with counsel and stipulated to the amended disposition after which B.B.C. was ordered to be placed in the temporary custody of CCDCFS. Within the dispositional entry, which was journalized on October 19, 2022, the court included the following findings:
The Court further finds that the reasonable efforts were made to prevent the removal of the child from the home, or to return the child to the home and finalize a permanency plan, to wit: reunification. Relevant services provided to the family include: The Mother was referred for Mental Health, Substance Abuse, Housing and Parenting Services. The Father established paternity.
{¶ 39} None of these findings were ever challenged by way of objection or appeal. Therefore, because the juvenile court made reasonable-efforts findings during the pendency of this case before the permanent-custody proceedings, the requirements of
The Court further finds that reasonable efforts were made to prevent the removal of the child from the home, or to return the child to the home and finalize a permanency plan, to wit: reunification. Relevant services provided to the family include: For Mother, Substance Abuse, Mental Health, Housing, Parenting and to establish a legal name for the Child. The Father is incarcerated until 2026.
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Following the placement of the child outside the child‘s home and nothwithstanding 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 home.
(Judgment Entry, Sept. 21, 2023.)
{¶ 40} Based on the foregoing, not only did the juvenile court comply with the requirements of
{¶ 41} Father further argues that CCDCFS failed to develop a case plan for him to assist with reunification efforts. He concedes, however, that he was incarcerated on the date of trial and is scheduled to be incarcerated until 2026.
{¶ 42} In In re J.W., 8th Dist. Cuyahoga No. 108003, 2019-Ohio-1783, we stated: “Ohio courts have held that [the
{¶ 43} In light of the foregoing, we find that CCDCFS was not required to make efforts that were unreasonable in light of the fact that Father is incarcerated until July 2026.
{¶ 44} Accordingly, the first assignment of error is overruled.
III. Conclusion
{¶ 45} There is clear and convincing evidence in the record to support the juvenile court‘s determination that permanent custody to CCDCFS is in B.B.C.‘s best interest. Accordingly, the court‘s decision to grant permanent custody is not against
{¶ 46} Accordingly, judgment is affirmed.
Costs are waived.
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
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR