IN RE: C.B., A Minor Child
No. 92775
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 27, 2011
[Cite as In re C.B., 2011-Ohio-5491.]
S. Gallagher, J., Boyle, P.J., and Cooney, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. AD 06900501
Attorney for Mother
Betty C. Farley
17316 Dorchester Drive
Cleveland, OH 44119
Attorney for C.B.
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
13770 Ontario Street
Cleveland, OH 44113
FOR APPELLEE
For Father
A.W., pro se
2720 Wooster Road
Apt. 4
Rocky River, OH 44116
Also listed:
Guardian Ad Litem for Child
Thomas Kozel
P.O. Box 534
North Olmsted, OH 44070-0534
Attorneys for Father
Timothy R. Sterkel
1414 South Green Road
Suite 310
Cleveland, OH 44121
2195 South Green Road
University Heights, OH 44121
Attorneys for Cuyahoga County Department of Children and Family Services
William D. Mason
Cuyahoga County Prosecutor
BY: James M. Price
Assistant Prosecuting Attorney
C.C.D.C.F.S.
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{1} This appeal is before this court on remand from the Ohio Supreme Court, after it reversed our determination that the appeal should be dismissed for lack of a final appealable order. In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398.
{2} Appellant, Mother, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, that granted legal custody of the child, C.B., to Father.1 The child‘s guardian ad litem filed a cross-appeal on behalf of the child, challenging the trial court‘s denial of the motion for permanent custody of the Cuyahoga County Department of Children and Family Services (“CCDCFS“) and the award of legal
{3} The child was born on April 16, 2005. Mother and Father are her biological parents. They are not married and live separately. On March 22, 2006, CCDCFS filed a complaint for dependency and temporary custody. The child was adjudicated dependent, and CCDCFS was granted temporary custody on June 7, 2006.3 After more than a year, CCDCFS filed a motion to modify temporary custody to permanent custody on July 27, 2007. Mother stipulated to the motion, while Father denied the allegations in the motion. The matter proceeded to a hearing, commencing in October 2008, over two years after the child had been placed in temporary custody of CCDCFS.4 Mother again stipulated to a finding of permanent custody for CCDCFS.
{4} At the hearing, the child‘s foster mother testified she had been the foster parent for approximately two and one-half years without interruption. The child was placed in her care at the age of nine months. The child is healthy with no developmental
{5} The foster mother indicated that the child throws temper tantrums before visits with Father, does not want to go, and states she is afraid of him. The foster mother acknowledged that Father brings things for the child and that the child has stated she loves her dad.
{6} Loretha Knight, a social worker for CCDCFS, was assigned to the case in January 2007. She testified that the child was removed from her parents’ care on December 23, 2005, after Mother dropped the child off at a police station. The child has been continuously in the custody of CCDCFS since June 2006. Knight stated that the child has adjusted well to foster care and has a very good bond with her foster family.
{7} Though Father took issue with the child‘s treatment at a hospital during her foster care, the testimony reflected the child was treated for a bad diaper rash or vaginal infection and there was no evidence or findings of any sexual abuse. Knight confirmed an incident in which the child‘s hair was cut by another child in the foster home. However, she indicated that no violations were issued. She found that the child‘s basic needs were being provided for in a loving environment.
{8} Knight stated that the child has a good bond with Father and that Father has had both supervised and unsupervised visits with the child. Nevertheless, Knight stated her belief that permanent custody was in the child‘s best interest.
{10} There was also concern with regard to Father‘s mental health status. Knight was aware that Mother and Father had met in a mental health facility and that Father had admitted to having been diagnosed with bipolar disorder in the past. However, Father refused to discuss his mental health history and did not provide any further information. Knight learned that Father had been hospitalized for psychiatric reasons, he was diagnosed with certain psychiatric disorders, and follow-up treatment was recommended. The discharge date was December 23, 2003. There is no evidence that Father obtained follow-up care or treatment. Father also had a brother and a parent with a psychiatric condition.
{12} It was conceded that Father consistently visits with the child and has missed only two visits in three years. There were case notes indicating visits that went very well and that Father‘s visits went from two to three hours. There was no concerning behavior on the part of Father noted with regard to visitations. However, Knight testified she had concerns with Father‘s displays of anger, outbursts, and odd behaviors with several individuals.
{13} Father‘s aunt testified she had a strained relationship with him. She testified to concerning behavior of Father, including sleeping on the floor of his grandmother‘s apartment at night, eating food purchased for his grandmother, living in a house he tore apart, including removing sinks and toilets, and having a dog that he always kept in an attic.
{14} Dennis Pinciotti, Ph.D., performed a psychological evaluation for Father. Dr. Pinciotti admitted that he does not perform custody evaluations on a routine basis and that they are not his specialty. His evaluation was based solely on information provided by Father, and no collateral sources were consulted. The doctor indicated on cross-examination that he was under the impression from Father that reunification was in progress and that the evaluation was not for a custody recommendation.
{16} Dr. Pinciotti recommended that unsupervised visitation should continue and should be accelerated to facilitate reunification. He testified that “[Father] would like to see himself as a residential parent after he has established a more satisfactory environment for himself and his daughter. Although he would prefer his daughter not be involved in the foster care system, he is satisfied with her current temporary placement and is realistic about his ability to provide a satisfactory environment for her.”
{17} Father called witnesses to verify that he is employed. Several witnesses testified to Father‘s visits with the child. Father provided evidence of a month-to-month lease agreement for his housing and a copy of his employee ID badge. He also presented evidence that he had completed a parenting class.
{19} However, the guardian ad litem was concerned that over two years had passed since the child‘s placement, the mother had stipulated to permanent custody, he did not believe the child could be reunified with Father now or in the foreseeable future, and he felt the child deserved to be in a stable home. He found that Father was not willing to discuss his prior medical records and had not shown he received the recommended follow-up treatment. He also indicated the mental-health evaluation obtained by Father was based purely on self-reporting of Father, the doctor had not been provided with Father‘s prior medical documentation, and no collateral sources were consulted. Further, Father never attended his court-ordered evaluation and failed to fully comply with the case plan. There were also reports of bizarre behavior on the part of Father.
{20} On February 1, 2009, the juvenile court denied CCDCFS‘s motion for permanent custody, ordered CCDCFS‘s temporary custody to terminate, and granted legal custody to Father.5 The court further ordered that the child be committed to the
{21} Mother filed a notice of appeal on February 5, 2009. The child‘s guardian ad litem timely filed a cross-appeal on March 9, 2009, and also requested the appointment of appellate counsel for the child. This court appointed appellate counsel for the child. We also appointed counsel for Father. The lower court proceedings were stayed.
{22} After appellate briefs were filed, this court dismissed the case for a lack of a final appealable order. That ruling was reversed by the Ohio Supreme Court, and the cause was remanded to this court for further proceedings. In re C.B., 129 Ohio St.3d 231, at ¶ 19. The matter, which has been fully briefed, is now before us for review.
{23} Initially, we address jurisdictional and standing issues that have been raised. Pursuant to In re C.B., at ¶ 15, “when a trial court denies a children-services agency‘s motion to modify temporary custody to permanent custody, terminates the placement of temporary custody with the agency, and awards legal custody to a parent, the order is final and appealable under
{24} However, Father challenges Mother‘s standing to appeal. CCDCFS did not appeal the trial court‘s order denying permanent custody and terminating the child‘s
{25} The child‘s natural parents are parties to the proceedings.
{26} The child‘s guardian ad litem filed a cross-appeal on behalf of the child, and appellate counsel was appointed for the child.7 Pursuant to
{27} The assignments of error raised by Mother and the child challenge the trial court‘s ruling as being an abuse of discretion and against the manifest weight of the evidence. We find merit to the arguments raised.
{29} The factors under
{30} Here, the record supports the trial court‘s determination that the child had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period. In fact, the child had been in continuous custody for over two years at the time the hearing was held. In this regard, we echo the concern expressed by Justice
{31} Having satisfied
{32}
{34} The record reflects that the child has a good relationship with both her foster family and Father. However, “the mere existence of a good relationship is insufficient. Overall, we are concerned with the best interest of the child, not the mere existence of a relationship.” (Citations and quotation omitted.) Id. at ¶ 61. While the child‘s visits with Father were appropriate, there was evidence that the child often throws tantrums beforehand or does not want to go. Further, the child has bonded with her foster family. She has been continuously in the same foster home for several years, since she was a baby, and the foster mother has expressed a willingness to adopt the child.
{36} We recognize that Father was not the cause for removal of the child. The record reflects that Father and the child love each other and have a good relationship. Father‘s visitation with the child has been consistent and appropriate. Further, Father obtained suitable month-to-month housing, was employed, and had taken a parenting class.
{37} Although Father has shown a strong desire to parent the child and has made efforts to prepare for such a role, our primary inquiry remains the best interest and welfare of the child. As Ohio courts have recognized, ““[P]arents who are suitable persons have a “paramount” right to the custody of their minor children.’ In re Murray (1990), 52 Ohio St.3d 155, 157 (citations omitted). ‘The fundamental interest of parents is not absolute, however.’ In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, at ¶ 11. The ‘extreme disposition’ of permanently terminating a parent‘s rights with respect to a child ‘is nevertheless expressly sanctioned * * * when it is necessary for the “welfare” of the child.’ In re Cunningham (1979), 59 Ohio St.2d 100, 105. ‘[T]he fundamental or primary inquiry at the dispositional phase of these juvenile proceedings is not whether the parents of a previously adjudicated “dependent” child are either fit or unfit,’ rather, it is
{38} The record here reflects that Father did not comply with the case plan and exhibited a lack of stability. There was testimony showing a history of unstable housing and prior unsatisfactory conditions. He also had numerous employers over the past several years. Additionally, he failed to attend the court-ordered psychological evaluation, despite his mental condition having been in question. There was evidence that Father and Mother met in a mental health facility, and that Father was hospitalized for psychiatric reasons and was diagnosed with certain psychiatric conditions. Although Father argues his hospitalization was years ago, he was unwilling to discuss his mental-health history, there was no evidence that he obtained the recommended follow-up treatment, and he has exhibited other concerning behavior. While Father obtained an outside report, the evaluation was based purely on self-reporting by Father, the doctor had not been provided with pertinent information regarding Father‘s mental-health and family history, and certain tests were not performed. The evidence reflects that the goals of the case plan were not substantially adhered to or met.
{39} As was the case in In re D.A., although the court orders and case plan were not complied with, the trial court still granted Father legal custody, further delaying permanence for the child. “A permanent, loving family and a safe and stable home are clearly in [the child‘s] best interest. Although the trial court‘s repeated attempts to place
{40} Regrettably, despite Father‘s love and devotion to the child, an award of legal custody is not in her best interest or welfare. As this court has repeatedly recognized, ““[a] child‘s best interests require permanency and a safe and secure environment.“’ In re S.W.E., Cuyahoga App. No. 91057, 2008-Ohio-4234, ¶ 11, quoting In re Holyak (July 12, 2001), Cuyahoga App. No. 78890.
{41} Upon our review, we find that a multitude of factors under
{42} Accordingly, the trial court‘s judgment is reversed, the February 1, 2009 order is vacated, and permanent custody of the child is granted to CCDCFS. The case is remanded to the trial court for proceedings consistent with this opinion.
It is ordered that appellants recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and COLLEEN CONWAY COONEY, J., CONCUR