In re B.P.
- Reporters:
- ,
- Before:
- Eileen T. Gallagher, Lisa B. Forbes, Michael John Ryan
{¶ 1} 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:
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 tо 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 .- The trial court‘s decision to award permanent custody to DCFS was against the manifest weight of the evidence.
- 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.
{¶ 2} We affirm the juvenile court‘s judgment.
I. Facts and Procedural History
{¶ 3} 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.
{¶ 4} Less than one month later, on September 17, 2021, 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.
{¶ 5} In May 2022, CCDCFS filed motions in eaсh 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
{¶ 6} 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.)
{¶ 7} 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.)
{¶ 8} With respect to the mental-health component of the case plan, Vicens explained that Mother was referred to the Juvenile Court Diagnostic Clinic because
{¶ 9} 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.)
{¶ 10} 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] fеces smeared on the wall.
The toilet from upstairs was so not properlyworking 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.
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.
{¶ 11} 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-abuseproblem and the fact that she continued a romantic relationship with someone who was using illegal substances. (Tr. 84.)
{¶ 12} 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
{¶ 13} 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 bоth 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.
{¶ 14} 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.)
{¶ 15} 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.
[Na‘S.P.] has been adamant from day оne 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.)
{¶ 16} 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.)
{¶ 17} 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
II. Law and Analysis
A. Reasonable Efforts at Reunification
{¶ 18} 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
{¶ 19} 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 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.
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).
{¶ 20} Mother concedes existing precedent from this court holds that reasonable-efforts findings are not required in permanent custody cases but argues
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., 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 inR.C. 2151.414 do not mandate that the court make a determination whether reasonаble 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.
{¶ 21} 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 thе 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: substancе 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.)
{¶ 22} 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
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 parеnt 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
B. Manifest Weight of the Evidence
{¶ 23} 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 evidеnce. 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.
{¶ 24} 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
{¶ 25} Nevertheless, a рarent‘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).
{¶ 26} 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
{¶ 27}
{¶ 28} Only one of the factors listed in
{¶ 30} “‘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)
{¶ 31} With respect to the first prong of the permanent-custody analysis, the juvenile court found, pursuant to
{¶ 32} When assessing whether a child cannot bе placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents under
{¶ 33} 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
[f]ollowing the placement of the child оutside 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.
{¶ 34} 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 prоjecting blame on others for involvement with DCFS.” (Tr. 64.)
{¶ 35} 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
{¶ 36} 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.)
{¶ 37} 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
3. Second Prong: Best Interests of the Children
{¶ 38} 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 рarent 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
{¶ 39} 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
{¶ 40} An abuse of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretiоnary 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.).
{¶ 41}
{¶ 42} In this case, the juvenile court applied
{¶ 44} 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.)
{¶ 45} The court‘s journal entry establishes that the court considered the factors set forth in
{¶ 46}
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.
{¶ 48} 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.
{¶ 49} Finally,
{¶ 51} 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.
{¶ 52} 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.
{¶ 53} 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, ”
{¶ 54} The juvenile court‘s journal entries granting permanent custody expressly state that the court considered the best-interest factors in
{¶ 55} 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.
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and
MICHAEL JOHN RYAN, J., CONCUR