IN RE: Cl.P., ET AL., Minor Children [Appeal By C.P., Father]
Nos. 96103, 96104, and 96105
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 14, 2011
2011-Ohio-3475
Celebrezze, J., Blackmon, P.J., and S. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case Nos. AD-08939325, AD-08939326, and AD-10900406
JUDGMENT: AFFIRMED
ATTORNEYS FOR APPELLANT
Christopher R. Lenahan
2035 Crocker Road
Westlake, Ohio 44145
Michael S. Weiss
602 Rockefeller Building
614 Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
William D. Mason
Cuyahoga County Prosecutor
BY: Janna R. Steinruck
Assistant Prosecuting Attorney
3955 Euclid Avenue
Room 305E
Cleveland, Ohio 44115
GUARDIAN AD LITEM FOR CHILDREN
Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070-3856
GUARDIAN AD LITEM FOR MOTHER
Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129
FRANK D. CELEBREZZE, JR., J.:
{¶ 2} CCDCFS has been involved in the lives of the children of V.W. (“mother”) since 2007 when allegations of educational neglect surfaced regarding mother’s two oldest daughters. CCDCFS obtained emergency, and then temporary custody, of mother’s six children on February 29, 2008 and December 9, 2008, respectively.2 V.P. came into its custody on January 16, 2010, within days of her her birth. The children were initially placed together with their maternal grandmother, but because of the unruly behavior of the older siblings, the children were split up. Cl.P., age three at the time of the permanent custody hearing, was placed, along with his older half-brother D.J., with one foster family. Cr.P. was placed with a different family, and V.P. was placed with a third family. Appellant is the confirmed father of Cl.P., Cr.P., and V.P.
{¶ 4} CCDCFS filed for permanent custody on February 8, 2010. The cases were consolidated in a single hearing for permanent custody of the four youngest children. At the hearing, appellant’s sister, K.O., came forward and expressed her interest in caring for the four youngest children through an award of legal custody. K.O. had first expressed this interest in June 2009, but did not submit fingerprints or other paperwork necessary for a background check until June 17, 2010. CCDCFS also required K.O. to
{¶ 5} The trial court ultimately found that placement with K.O. was not suitable for four children. K.O. had changed her mind several times about taking in the children and had failed to provide the documentation requested by CCDCFS for consideration.
{¶ 6} The court also found that CCDCFS had demonstrated through clear and convincing evidence that appellant did not benefit from the case plan even though he had substantially complied with the plan and also that placement with mother was not a viable option.
{¶ 7} The court awarded permanent custody of all four children to CCDCFS on October 28, 2010. Appellant then filed a separate appeal for each of his three children, assigning the same error. These three cases were consolidated into the instant appeal.
Award of Permanent Custody
{¶ 8} Appellant argues that “[t]he trial court’s order granting permanent custody to the CCDCFS was not based upon sufficient clear and convincing evidence.”
{¶ 9} The legislature recognized that the power to terminate parental rights should only be exercised in limited circumstances and only upon clear and convincing evidence demonstrating that such action is in the best interest of the child.3
{¶ 10} “[T]he court may grant permanent custody of a child to a movant if the court determines * * *, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
{¶ 11} “* * *
{¶ 12} “(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve
{¶ 13} Another way parental rights may be terminated is embodied in
{¶ 14} In spite of the gravity that the termination of parental rights has, “our review is deferential. If some competent, credible evidence going to all the essential elements of the case supports the trial court’s judgment, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. In re Myers III, Athens App. No. 03CA23, 2004-Ohio-657, ¶7, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. The credibility of witnesses and weight of the evidence are issues primarily for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio-1583, ¶15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.” In re Winland, Muskingum App. No. CT2008-0030, 2008-Ohio-6476, ¶34.
{¶ 15} Because V.P. was taken from mother at birth and had not yet been in the custody of CCDCFS for at least 12 months of a 22-month period, the award of custody was accomplished through
{¶ 16}
{¶ 18} Mother had her parental rights of the siblings of V.P. involuntarily terminated; demonstrated an inability to care for the child or provide basic necessities such as food and medical care even though sufficient funds were provided through public programs; and did not remedy the conditions that led to removal of the child. Mother also suffered from a history of mental illness and attempts and threats to attempt suicide.
{¶ 19} These findings are supported in the record. The trial court found that Cl.P., Cr.P., and V.P. could not be placed with either parent in a reasonable time. The court also noted that the children were doing well in their foster homes and were reaching targets for normal social and physical development, which had been a problem for the children previously in mother’s and appellant’s care.
{¶ 20} Only one factor enumerated in
b. Permanent Custody of Cl.P. and Cr.P.
{¶ 22}
{¶ 23} Pursuant to
{¶ 25} Ms. Motley testified that appellant engaged in acts of domestic violence after a visitation session with the children in March or April of 2010. The incident was witnessed by N.L., the father of a sibling of the children, who testified about the incident. Ms. Motley also testified about an incident involving appellant providing marijuana to mother’s oldest daughter in January 2010.
{¶ 26} This demonstrated appellant’s inability or unwillingness to remedy the reasons the children were originally removed from the home. Appellant was also not truthful in providing his address to CCDCFS. Appellant had stated that he lived with K.O., but provided an address where she no longer lived, and he had not updated that address. Ms. Motley testified that appellant never provided CCDCFS with K.O.’s current address as his residence.
{¶ 27} Ms. Motley testified that whenever she visited mother’s apartment, appellant was there, but, at times, he stated he did not live there.
{¶ 28} Competent, credible evidence exists in the record to support the trial court’s conclusion that appellant was not a suitable choice for placement of Cl.P., Cr.P., and V.P. Appellant did complete most, if not all, of his case plan, but “
c. Award of Legal Custody to an Interested Relative
{¶ 30} The trial court is instructed to consider the availability of relatives who have come forward to accept custody of the children, but that duty does not “include the requirement that the juvenile court find by clear and convincing evidence that no suitable relative was available for placement. The statute requires a weighing of all the relevant factors[.] * * *
{¶ 31} Although K.O. had an appropriate relationship with the children during visitation, and a three-bedroom apartment suitable for children, she was not able to satisfy some paperwork requirements that CCDCFS required for consideration for an award of legal or permanent custody. The trial court
{¶ 32} While K.O. may have presented a hopeful option for placement early on, her inability to satisfy requirements in order to be considered for placement, her residential history, and the fact that she was caring for her own daughter with a serious medical condition ultimately led the trial court to conclude that placement with her was not in the best interest of the children. That decision is supported by the evidence in this case.
Conclusion
{¶ 33} The children were thriving in their respective foster homes. Cl.P., who had suffered hearing loss from untreated ear infections, was beginning to advance in speech and vocabulary as a result of medical
{¶ 34} Appellant’s sole assignment of error is overruled.
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 be sent to said court 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.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA A. BLACKMON, P.J., and SEAN C. GALLAGHER, J., CONCUR