In re D.A.
JUDGMENT: REVERSED AND REMANDED
For C.C.D.C.F.S.
William D. Mason
Cuyahoga County Prosecutor
BY: Janna R. Steinruck
Assistant Prosecuting Attorney
3955 Euclid Avenue
Cleveland, Ohio 44115
BY: Gina S. Lowe
Assistant Prosecuting Attorney
4261 Fulton Parkway
Cleveland, Ohio 44144
Guardian Ad Litem
Suzanne Piccorelli
255 Falmouth Drive
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
For Dean Allen, Sr.
Je’Nine Nickerson
Bartos and Rini
13363 Madison Avenue
Lakewood, Ohio 44107
Attorneys continued:
Robert L. Tobik
Cuyahoga County Public Defender
BY: David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
Guardian Ad Litem
Michael Weiss
602 Rockefeller Building
614 Superior Avenue
Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Plaintiff-appellant, Cuyahoga County Department of Children and Family Services (“CCDCFS”) and guardian ad litem-appellant, Suzanne Adrain-Piccorelli (“GAL”), appeal the trial court’s denial of permanent custody to the agency and the granting of legal custody to defendant-appellee, Dean Allen (“father”). Finding merit to the appeal, we vacate the trial court’s order and award permanent custody of “D.A.”1 to CCDCFS.
{¶ 3} CCDCFS developed a caseplan for the mother and father with the goal of reunifying D.A. with them. In August 2008, CCDCFS moved to mоdify temporary custody to permanent custody because the parents were refusing to comply with their caseplan.
{¶ 4} In March 2009, the trial court held a hearing on the motion for permanent custody. The caseworker testified that the parents both had felony records, had refused all services, had moved in together but refused access to the agency or the GAL, the mother had intended to be the primary caregiver for D.A., the parents denied that the mother had any mental health issues, and the parents were both unemployed and had no verifiable source of incоme.
{¶ 5} The father testified that he had obtained stable housing and had invited the social worker to visit the house. He testified he was working odd jobs and had enough income to feed his family and pay rent.
{¶ 7} A clinical psychologist from the court psychiаtric clinic testified that the mother had “unstable mood and inappropriate, intense anger with a significant tendency to deny responsibility and blame others.” The psychologist concluded that the mother’s mental health issues, coupled with her unwillingness to participate in services, would prevent her from successfully parenting D.A.
{¶ 8} Notwithstanding this testimony, the trial court determined that legal custody of D.A. should be awarded to the father and found that the father had “substantially remedied the conditions causing the child to be placed outside the child’s home.” The court admitted that the mother had not substantially remedied the conditions causing the child to be placed outside the child’s home and also found that “[t]he father is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or mental neglect.” (Emphasis added.)
{¶ 9} The trial court delayed the date custody was to be transferred to the father and amended the caseplan to include transitional services, extended visitation with overnight visitation following a home investigation by the caseworker and GAL, participation by the father in services, enrollment for the
{¶ 10} The court then continued the case for three months for a custody review hearing to see if the parents complied with the court’s orders and to determine if the court should impose protective supervision on the family.
{¶ 11} Two months later, CCDCFS moved to stop the transfer of custody by filing a motion for temporary custody. At the hearing on the agency’s motion for temporary custody, the agency alleged that the parents were behind on rent and faced eviction; the parents’ apartment had no heat, stove, or refrigerator; the father was only working four to ten hours a week at a seasonal job; the mother intended to care for the child instead of placing him in protective day care; the parents had missed four out of seven visits with D.A.; and the family was again refusing all services.
{¶ 12} At a July 2009 pre-trial on the motion for temporary custody, the parents admitted to the allegations contained in the agency’s motion and the court granted the agency’s motion. The trial court continued the hearing until January 2010 to allow the parents another opportunity to comply with the caseplan and obtain proper housing.
{¶ 13} In December 2009, the agency filed its second motion for permanent custody as D.A. had been in agency custody for over twenty-two months. See
{¶ 14} The trial court held a pretrial on the motion for permanent custody in February 2010 and learned that both the mother and father were still unemployed and homeless.
{¶ 15} In April 2010, trial on the motion fоr permanent custody commenced.
{¶ 16} At trial, the parties stipulated to the admission of the mother’s 2008 psychological report, which found that her significant mental health issues, combined with her unwillingness to participate in mental health treatment would prevent her from being able to successfully parent a child. The report pointed to several factors that showed a poor prognosis for the mother’s ability to raise D.A., including her inappropriate and intense anger during the interview, refusal to accept responsibility for her children being removed from her care, and a tendency to blame others for her actions. The psychologist also noted that the mother described her children as being “replaceable” and had characteristics similar to an active child abuser. The report concluded that the mother should not regain custody of D.A. or any of her other children at “any time in the future.”
{¶ 17} An employee of the county-funded Passages Job Readiness Program testified that the father had completed a job readiness program but the employee had been unable to follow-up with the father due to the father’s transient situation.
{¶ 19} The social worker, who had been recently assigned to the case due to the father’s inability to get along with the original social worker, testified that she had difficulty engaging the family in services and told the court that the parents would not communicate with her or follow through with caseplan objectives. She also testified that the parents had demonstrated anger towards the agency and demanded CCDCFS pay them if the agency was going to have custody of D.A. The social worker told the court that the mother intended on being the child’s primary caretaker while the father worked. The social worker testified that she had not had any contact with the family since January 2010 due to the parents’ refusal to communicate with her, and she had not been able to verify if the parents had suitable housing.
{¶ 20} The social worker further testified that the father’s attorney had informed her just that day that the mother and father had secured housing and employment, so she (the social worker) had not yet visited the house or
{¶ 21} The father testified and accused the trial court of unfairly discriminating against him based on the actions of Ronald Harges, who was the biological father of one of D.A.’s siblings. He accused the agency of mishandling his case and the social workers of lying about him. He also stated that he had found new housing. He threatened to call the police if anyone tried to come near his house. He showed the trial court an unsigned lease, one-month’s worth of pay stubs totaling $280.89, and admitted he was working part-time for the first time in a year. He stated his relative would watch the child if he had to work and that he knew that his wife was not allowed to watch D.A. alone. He told the court that he would be the main one taking care of D.A. and his wife would just give him a “helping hand.” He admitted that he was uncooperative with agency social workers and stated it was because they had not helped him throughout the case.
{¶ 22} The GAL recommended that the trial court grant permanent custody of the child to CCDCFS. The GAL noted that the child had a strong bond with
{¶ 23} After hearing all the evidence, the trial court continued the trial until May 2010. When the parties reconvenеd in May, and before inquiring as to the status of the parents’ housing or employment, the trial court stated that it was denying the agency’s motion for permanent custody and granting legal custody of D.A. to his father. Only after stating its ruling did the court inquire whether the father had housing, employment, and provisions for the child. The father told the court he would have to renegotiate his lease to include D.A. and had not yet secured furniture or provisions for the child. He said he would get paid in about a week, but had to use that money to pay rent. He told the court the next paycheck would be used to get necessаry provisions for the child.
{¶ 24} The agency asked the court to stay its order to allow the agency time to approve the home and allow the father to secure basic items for his son. The court denied the request.
{¶ 25} The trial court issued its written findings, finding that it was in D.A.’s best interest for legal custody to be awarded to the father. The court found that the father had substantially remedied the conditions causing the child to be placed outside the child’s home; the mother had had rights terminated with respect to a sibling but she could provide a legally secure permanent placement through the child’s fathеr; the parents demonstrated a commitment to the child by
{¶ 26} CCDCFS filed a timely notice of appeal, raising the following assignment of error for our review:
{¶ 27} “I. The decision оf the trial court is not supported by sufficient competent, credible evidence.”
{¶ 28} CCDCFS also filed a motion to stay the execution of the trial court’s order, which we granted. We ordered the child to remain in his foster home until further order of the court.
Finality
{¶ 29} We first address the issue of whether the trial court’s order is a final, appealable order. The mother, in her separate appellee brief, argues that the trial court’s denial of permanent custody and grant of legal custody to the father is not a final, appealable order. We disagree.
{¶ 30}
{¶ 31} Both grants of jurisdiction to the courts require that a trial court’s order be a final order: “As a result, ‘[i]t is well-established that an order must be final before it can bе reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction.’” Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, 540 N.E.2d 266.
{¶ 32} For a court order to be a final, appealable order, the requirements of both
“(A) As used in this section:
“(1) ‘Substantial right’ means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.
“(2) ‘Special proceeding’ means an action or proceeding that is spеcially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.
“ * * *
“(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
“(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
“(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.”
{¶ 33} In In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d 886, the Ohio Supreme Court held that “[a] trial court’s order denying an agency’s motion to modify temporary custody tо permanent custody and continuing temporary custody does not qualify as a final, appealable order under either
{¶ 34} The Court reasoned that “the continuation of the agency’s temporary custody does not determine the outcome of the action for neglect and dependency. Instead, all parties remain subject to further court order during the temporary-custody phase. A juvenile court has several ultimate dispositional options pursuant to
{¶ 35} This case is distinguishable from In re Adams, however, because in this case the trial court did not order the continuation of temporary custody. The court awarded legal custody to the father. That award was a final dispositional order under
{¶ 36} We have previously recognized the ability of CCDCFS to appeal an order that terminates the agency’s temporary custody and awards legal custody
{¶ 37} We find the following excerpt from In re Collier (Feb. 4, 1992), Athens App. No. CA-1494, to be particularly instructive. Although discussing standing and not final, appealable orders, the court noted that:
{¶ 38} “A children services board exercises its powers and undertakes its duties ‘on behalf of children in the county considered by the board *** to be in need of public care or protective services ***’
{¶ 39} Likewise, we find that the agency does have a substantial right affected by the court’s order in that the agency no longer has the means to protect the child as the child’s temporary custodian. We find this to be especially true in this case as the trial court specifically denied the agency’s request for protective supervision.
Permanent Custody Factors
{¶ 41}
{¶ 42} Clear and convincing evidence is that which will produce in the trier of fact “‘a firm belief or conviction as to the facts sought to be established.’” In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, parаgraph three of the syllabus. While requiring a greater standard of proof than a preponderance of the evidence, clear and convincing evidence requires less than proof beyond a reasonable doubt. In re Parsons (Nov. 12, 1997), Lorain App. Nos. 97CA006662 and 97CA006663.
{¶ 43} As it relates to this appeal,
{¶ 44} Since D.A. had been in custody of CCDCFS for over twelve months of a consecutive twenty-two month period, additional findings were not required under
{¶ 45}
“(a) 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;
“(b) 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;
“(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * *;
“(d) 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;
“(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶ 46} This court has stated that only one of these enumerated factors needs to be resolved in favor of the award of permanent custody. In re W.C.; In re Moore (Aug. 31, 2000), Cuyahoga App. No. 76942, citing, In re Shaeffer Children (1993), 85 Ohio App.3d 683, 621 N.E.2d 426; In re C.H., Cuyahoga App. Nos. 82258 and 82852, 2003-Ohio-6854.
{¶ 47} An
Trial Court’s Findings
{¶ 48} Based on the applicable standard of review, we must determine both whether the trial court’s decision was against the manifest weight of the evidence and whether the trial court abused its discretion in finding that a grant of permanent custody to CCDCFS was not in the child’s best interest.
{¶ 49} On appeal, the agency argues that the overwhelming evidence presented at trial showed that it is in D.A.’s best interests that permanent custody be granted to the agency. The mother and father argue that the father presented competent, credible evidence that the father is able to meet D.A.’s basic needs.
{¶ 50} The trial court relied on its findings that the parents were willing to provide food, clothing, shelter, and other basic necessities for D.A.; the parents demonstrated a commitment to the child by regularly communicating, visiting, and supporting the child when able to do so; the mother maintained a stable relationship with the father prior to the birth of the child; the father was able to obtain employment and housing; and the father cоntinued to engage the support of family members.
Best Interest of the Child
{¶ 51} In Ohio, it is axiomatic that the best interest determination focuses on the child, not the parent. In re Mayle, citing Miller at 75; In re Awkal (1994), 95
{¶ 52} As mentioned earlier, since D.A. had been in the custody of CCDCFS for more than 12 out of 22 consecutive months, the only additional finding that the trial court was required to make was that permanent custody is in the child’s best interests. Although the trial court need only find one of the five factors, we will deal with each factor in turn.
{¶ 53} Pursuant to
{¶ 55} As to
{¶ 56} Based on the record, we find the trial court abused its discretion in finding that a grant of permanent custody was not in the best interest of the child. The trial court found that the father had substantially remedied the conditions causing the child to be placed outside the child’s home, but not only is that conclusion unsupported by the record, that finding is not a necessary finding
{¶ 57} The record reflects that the father repeatedly refused to comply with his caseplan and the agency’s efforts toward reunification. Moreover, the father was unable to show he had stable housing, employment, or provisions for the child at the time of trial. Although the father testified at trial that he had secured both housing and a job, the agency had not had the opportunity to do a home study to see if the housing was appropriate because the father refused access to either the agency or the GAL. The father showed the court an unsigned lease for an apartment he had yet to move into and admitted that D.A. was not on the lease. The father also testified that he had no plan for daycare other than to find family members to watch D.A., had no reliable transportation for D.A., and had not followed through on the court’s order to enroll thе child in protective daycare.
{¶ 58} We note that the father failed to comply with the court’s orders the first time around, when the court initially granted him legal custody of D.A. Even after numerous continuances, renewed efforts made by the agency to work towards reunification, and subsequent filings for temporary and permanent custody, the father still did not comply with the case plan or the court’s orders. And even though the father failed to follow the court’s orders, the trial court still granted him legal custody, thereby delaying permanence for the child.
{¶ 59} We also cannot ignore the evidence presented at trial that the mother, who had her parental rights terminated with respect to ten other children,
{¶ 60} Although the trial court awarded legal custody of D.A. to the father and not the mother, the reality of the trial cоurt’s order is that it placed D.A. into the very situation from which CCDCFS sought to remove him in the first instance: that of a mother, who is unwilling and unable to properly care for the child, living in the same household and with unlimited access to the child. See In re W.C. The trial court erred, therefore, in granting legal custody of D.A. to the father.
{¶ 61} Although it is apparent that the father loves his child and desires to care for the child, this court has previously stated, “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 relatiоnship.” In re W.C. at ¶26, citing In re R.N., Cuyahoga App. No. 83121, 2004-Ohio-2560; see, also, In re Holyak (July 12, 2001), Cuyahoga App. No. 78890;
{¶ 62} A permanent, loving family and a safe and stable home is clearly in D.A.’s best interest. Although the trial court’s repeated attempts to place the child with the father may have been well-intentioned, it placed the father’s interests ahead of the child’s, in violation of the Revised Code and the relevant case law and therefore failed to consider the best interest of D.A. See In re W.C.
{¶ 63} Accordingly, the trial court’s judgment is reversed, the order is vacated and permanent custody of D.A. is granted to CCDCFS. The case is remanded to the trial court for proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR