In re C.T.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 20, 2020
Appearances:
Dale M. Hartman, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee C.C.D.C.F.S.
RAYMOND C. HEADEN, J.:
{1} Appellant C.T. (“Mother“) appeals from a juvenile court judgment granting permanent custody of her children, Ca.T., J.B., Ta.B., Tr.B., and C.B., to the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the agency“). For the reasons that follow, we affirm the juvenile court‘s judgment.
{2} On September 25, 2017, CCDCFS filed a complaint for abuse,1 dependency and temporary custody of Ca.T. (d.o.b. May 9, 2003), J.B. (d.o.b. May 9, 2005), Ta.B. (d.o.b. Dec. 13, 2006), Tr.B. (d.o.b. Jan. 22, 2009), and C.B. (d.o.b. Jan. 7, 2011). The agency also filed a motion for emergency predispositional custody.
{3} The agency‘s complaint alleged that the children were previously adjudicated abused and neglected due in part to a domestically violent relationship between Mother and her boyfriend, who lived with Mother and the children. As a result of this adjudication, the children were in the agency‘s custody from June 2014 until July 2016. The complaint alleged that Mother lacked appropriate judgment and parenting skills to be able to provide a safe home for the children, and that she continued to maintain a relationship with an abusive partner. The complaint further alleged that there was frequent police activity at the home due to violence and alcohol abuse by Mother‘s boyfriend. Finally, the complaint alleged that Mother failed to adequately supervise the children. With respect to paternity, the complaint alleged that Ca.T.‘s father was unknown and has failed to establish paternity or support, visit, or communicate with Ca.T. since her birth. The complaint also alleged that the father of the other four children was deceased.
{5} The court held a hearing on October 13, 2017. In an October 16, 2017 journal entry, the court acknowledged that the parties had agreed to hold the agency‘s motion for predispositional custody in abeyance, and that the parties agreed to a no-contact order between Mother‘s boyfriend and the children. The court also appointed a guardian ad litem (“GAL“) for the children.
{6} On November 1, 2017, the court held a hearing. According to an agency witness, the agency had requested urine screens of both Mother and her boyfriend, and Mother‘s most recent screen was insufficient for testing purposes. The social worker on the case testified that the agency had requested urine screens from Mother three times since her insufficient screen and Mother had not complied. The boyfriend‘s screen came back positive for cocaine, and he was not currently living with the family because of the no-contact order. The social worker testified that Mother had recently obtained a new residence, but not all of the utilities were turned on. Finally, the social worker testified that Mother did not appreciate the significance of the domestic violence issues in the home. The court granted the
{7} The court held a hearing on November 22, 2017. The corresponding journal entry noted that the agency was unable to place the children in family care, but they were placed in a therapeutic foster home. The journal entry also noted that Mother completed a urine screen on November 4, 2017, tested positive for cocaine, and was referred for substance abuse treatment.
{8} The children‘s GAL filed a report on December 14, 2017. The report stated that Mother had visited the children and told the children that they did not have to listen to their foster parents. The report also reflects that the children were ultimately placed in separate foster homes. Ca.T. was placed in a foster home in Shaker Heights, Ta.B. and C.B. were placed in a different foster home, and J.B. and Tr.B. were placed in a third foster home. According to the GAL report, Ca.T.‘s foster mother reported that sometimes Mother would drop Ca.T. off from school. The GAL report stated that Ca.T., Ta.B., and C.B. all stated that they wanted to go home to their mother. The GAL was unable to conduct a visit with J.B. and Tr.B. prior to filing this report because the boys were moved to another foster home because of disruptive behavior. Ultimately, the GAL recommended that it was in the children‘s best interest to be placed in the agency‘s temporary custody.
{9} On December 18, 2017, the agency filed an amended complaint. Following a hearing that day, on January 3, 2018, the magistrate adjudicated the
{10} According to a January 18, 2018 journal entry following a hearing, Mother was referred to domestic violence classes, referred to Recovery Resources for substance abuse treatment, and her case plan was amended to include a psychological evaluation due to past mental-health issues.
{11} On March 14, 2018, a semiannual review (“SAR“) was filed. The review noted that in contravention of the case plan goal to not expose the children to domestic violence, Mother was again living with her boyfriend. The review also noted that Mother completed a substance-abuse assessment but had not been compliant with case-plan objectives since January 2018. The review stated that Ca.T. went AWOL on February 22, 2018, and upon her return six days later was placed with her maternal great-grandparents.
{12} On March 20, 2018, the GAL filed an updated report. The GAL noted that Mother had not yet started domestic violence counseling, engaged in substance abuse services, or gotten a mental-health evaluation. The GAL recommended that temporary custody was in the children‘s best interest.
{13} On September 2, 2018, the GAL again filed an updated report. At the time, each child had been placed in a separate foster home. As of the date of the report, Ca.T. was AWOL again. The GAL stated that it had “been reported” that Ca.T. was staying with Mother, who had been homeless since June 2018. The GAL report noted that Mother‘s visitation with the children was sporadic, and that during
{14} On September 6, 2018, the agency filed a motion to modify temporary custody to permanent custody. On September 17, 2018, a SAR was filed, describing Mother‘s insufficient progress toward her case plan goals, her housing instability, and her boyfriend‘s noncompliance with the case plan.
{15} On November 9, 2018, the agency filed an amended case plan. The case plan included a request for an emergency suspension of visitation due to safety concerns for the children, an updated placement for C.B., and a report that J.B. was AWOL.
{16} On February 26, 2019, the court appointed counsel to represent the children. On March 20, 2019, a SAR was filed. The SAR‘s case review summary stated that Ca.T., who had been AWOL since July 2018, and J.B., who had been AWOL since October 2018, were found with Mother in January 2019. As a result, Mother was charged with two counts of interfering with custody.
{17} On May 7, 2019, the GAL filed an updated report, noting that Mother had not consistently engaged with substance abuse, domestic violence, or mental health services in accordance with her case plan. Further, Mother had not maintained stable housing and, as of the date of the GAL report, Mother‘s
{18} The court held a trial in this matter on August 5, 2019.
{19} The agency called a social work supervisor as its witness, who testified that she had been assigned to the case as a supervisor in October 2017. She testified that when J.B. and Ca.T. were found after being AWOL for several months, they were discovered to have been living in a hotel with Mother in Middleburg Heights, Ohio. With respect to Mother‘s housing instability, the witness further testified that since the time of Mother‘s eviction from her home in June 2018, the agency was unable to assess any of her subsequent residences. With respect to the substance abuse case-plan goals, the witness testified that Mother was working with Ohio Guidestone and had completed 13 of the 36 sessions she should have completed since beginning the program and had failed to provide the agency with a urine screen since January 2018. Mother did provide a negative urine screen to Ohio Guidestone in June 2018.
{20} The GAL also testified at trial and recommended that the agency be awarded permanent custody of the children. The court also accepted documentary
{21} The court granted the agency‘s motion for permanent custody of the children. In an August 9, 2019 journal entry, the court found that the agency proved the allegations of its motion by clear and convincing evidence. Specifically, the court found that, pursuant to
The [children are] not abandoned or orphaned or [have] not been in temporary custody of a public 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the [children] were previously in the temporary custody of an equivalent agency in another state, and the [children] cannot be placed with either of [their] parents within a reasonable time or should not be placed with [their] parents.
The court also found that one or more of the factors in
{22} With respect to housing and basic needs, the court found that Mother was evicted in June 2018 and that she had no contact with the agency from November 2018 to May 2019 in order to verify her housing or assess its appropriateness. The court found that Mother has not completed services in order
{23} Mother appealed, presenting two assignments of error for our review.
Law and Analysis
{24} In Mother‘s first assignment of error, she argues that the trial court‘s award of permanent custody was against the manifest weight of the evidence. In her second assignment of error, she argues that she received ineffective assistance of counsel.
{25} When adjudicating a motion for permanent custody, juvenile courts apply a two-prong test pursuant to
{26} It is well-recognized that a parent has a “fundamental liberty interest” in the care, custody, and management of his child and an “essential and basic civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990). A parent‘s liberty interest, however, is tempered by the ultimate welfare of the child. In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
{27} Here, the court satisfied the first prong of the statutory test by finding that the children cannot be placed with a parent within a reasonable time or should not be placed with a parent. To determine whether a child cannot or should not be placed with a parent within a reasonable time, courts consider the factors identified in
{28} The court found, pursuant to
[f]ollowing the placement of the [children] outside [their] home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the [children] to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the [children] to be placed outside [their] home.
{30} Finally, the court found, pursuant to
{31} With respect to
{32} In addition to this statutory determination, the trial court made a best interest determination pursuant to
{33} To determine whether a grant of permanent custody is in a child‘s best interest, the juvenile court must consider:
- The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers, and out-of-home providers, and any other person who may significantly affect the child;
- The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
- The custodial history of the child, including whether the child has been in the temporary custody of one or more public service children agencies or private child placing agencies for [12] or more months of a consecutive [22]-month period;
- The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
- Whether any of the factors in
[R.C. 2151.414](E)(7) to(11) apply in relation to the parents and child.
{34} In this case, the court considered the statutory factors. With respect to
{35} With respect to
{36} Finally, with respect to
{37} In her second assignment of error, Mother argues that she received ineffective assistance of counsel for failing to make a closing argument, failing to object to the introduction of Mother‘s convictions for interfering with custody, and failing to object to the agency calling a supervisor as a witness rather than the social worker who had been more directly involved with the family.
{38} The standard for an ineffective assistance of counsel claim in permanent custody proceedings is the same standard that applies in criminal cases. In re Nicholson, 8th Dist. Cuyahoga Nos. 75533, 75534, 75535, 75536, 75537, 75538, and 75539, 2000 Ohio App. LEXIS 223, 8 (Jan. 27, 2000), citing In re Brodbeck, 97 Ohio App.3d 652, 657, 647 N.E.2d 240 (3d Dist. 1994). To establish ineffective assistance of counsel, a party must demonstrate that counsel‘s performance at trial was seriously flawed and deficient and fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 687-688.
{40} With respect to counsel‘s decision not to object to the agency calling a supervisor as a witness rather than the social worker involved in the case, we do not find the lack of objection deficient. Although the social worker indeed had more direct involvement with the family, the supervisor was familiar with all aspects of
{41} Because Mother has not satisfied either prong of the Strickland test, we find that she was not provided ineffective assistance of counsel. Mother‘s second assignment of error is overruled.
{42} Judgment affirmed.
It is ordered that appellee recover of appellant the costs herein taxed.
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 Rule 27 of the Rules of Appellate Procedure.
RAYMOND C. HEADEN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR