In re D.D.
RELEASED AND JOURNALIZED: March 12 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-18906985, AD-18906986, and AD-19901671
Appearances:
Rachel A. Kopec, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michelle A. Myers, Assistant Cuyahoga County Prosecutor, for appellee C.C.D.C.F.S.
PATRICIA ANN BLACKMON, J.:
{¶ 1} R.B. (“Mother”) appeals the court’s granting permanent custody of her children De.D., Do.D., and L.R. to the Cuyahoga County Division of Children and Family Services (“CCDCFS”). R.B. raises the following three assigned errors:
- Cuyahoga County Department of Children and Family Services failed to timely file a case plan for De. D. and Do. D. and the matters should have been dismissed prior to adjudication.
Cuyahoga County Department of Children and Family Services failed to bring De. D. and Do. D. to disposition within ninety days and thus the matters should have been dismissed. - Permanent Custody of the children was against the manifest weight of the evidence.
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court’s judgment. The apposite facts follow.
{¶ 3} On June 1, 2018, CCDCFS filed a complaint alleging that Do.D., whose date of birth is August 13, 2017, was abused and dependent. The complaint also stated that De.D., who is Do.D.’s twin, was dependent. Specifically, the allegations were that “Mother lacks appropriate judgment and parenting skills to be able to provide a safe home for the children. On May 31, 2018, Do.D. was hospitalized with a fractured tibia for which mother has offered no reasonable explanation.” The complaint also alleged that Mother lacks stable housing, the putative father “has failed to establish paternity and has failed to support, visit, or communicate with the children since birth,” and the putative father is a registered sex offender.
{¶ 4} CCDCFS also filed a motion for predispositional emergency custody of the children. The court held a hearing on the matter, found probable cause for removal of the twins, and granted emergency custody to CCDCFS. The children were placed with the paternal grandmother, Y.S.
{¶ 5} On July 5, 2018, CCDCFS filed a case plan with the goal of reunifying the children with Mother. The case plan listed Mother’s strengths as “no concerns with any substance abuse.” Additionally, the case plan listed Mother’s concerns as follows:
[Mother] lacks the parenting skills to ensure the safety of her children. [De.D.] has been determined to have a fractured tibia, fractured right 6th rib and compression spinal fractures. [Do.D.] has been determine[d] to have a fractured tibia and compression fractures to his spine. The injuries have been determined to be non accidental. Both children were reported to be in the care of the mother. [Mother] has no explanation as to how the children were injured.
{¶ 6} On July 27, 2018, the complaint was amended to include an allegation that De.D. was also abused with the following explanation: “Due to the nature and severity of Do.D.’s injuries, a medical examination was conducted on De.D., which examination revealed a spiral fracture of his right tibia as well as a fractured rib and a spinal fracture, suggesting a pattern of ongoing non-accidental injury to De.D.” In this amended complaint CCDCFS requested temporary custody of the children.
{¶ 7} On September 5, 2018, the court held a hearing on the amended complaint and request for temporary custody. Mother admitted to the allegations in the amended complaint, and the court adjudicated the children were neglected and abused. The magistrate found that case plan objectives of parenting education, housing, and paternity establishment were ongoing, and that Mother was currently attending a parenting class. The magistrate further found that CCDCFS “has made reasonable efforts to prevent the removal of the child[ren]” and “to finalize the Permanency Plan which is reunification.”
{¶ 8} On October 26, 2018, CCDCFS filed an amended case plan ordering mental health services, domestic violence classes, and support groups or counseling sessions for Mother. On November 1, 2018, the court adopted the magistrate’s
{¶ 9} On December 3, 2018, CCDCFS filed a semiannual review noting that the initial safety concerns were “serious non-accidental injuries” to the twins, as well as Mother’s prior history of having five children removed from her custody in Lorain County. The review also states that the putative father has not established paternity and his whereabouts were unknown. The review concluded that temporary custody and placement of the children with the paternal grandmother should be “maintained. The issues that facilitated removal have not yet been sufficiently addressed.”
{¶ 10} On February 9, 2019, Mother gave birth to L.R. CCDCFS was granted emergency custody of the baby on February 12, 2019, and L.R. was placed with a foster family. On March 11, 2019, CCDCFS filed a motion to modify temporary custody to permanent custody of all three children. On March 25, 2019, CCDCFS filed an amended case plan adding L.R. as a participant. According to the case plan, there was concern that L.R. was at risk of abuse, because of the abuse to De.D. and Do.D. by an unknown perpetrator. The court held a hearing on April 8, 2019, at which Mother admitted to the allegations in the complaint regarding L.R., and the court adjudicated L.R. dependent.
{¶ 11} The court held a hearing on CCDCFS’s motion for permanent custody on May 29, 2019. The court found that “the allegations of the motion to modify have
Timeliness of Filing Case Plan and Disposition
{¶ 12} In Mother’s first assigned error, she argues that CCDCFS failed to file the case plan within 30 days of filing the complaint, as required by
{¶ 13} Our review of the record shows that Mother failed to object to these issues in the juvenile court. It is well-established that failure to object to an issue in the lower court waives a party’s right to challenge that issue on appeal absent plain error. See Buckeye Lakes Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975); In re Z.P., 8th Dist. Cuyahoga No. 104395, 2017-Ohio-7397, ¶ 23 (“An appellate court may recognize an error that an appellant waived only if it constitutes plain error”).
[T]he plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.
Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).
{¶ 14} Mother makes no argument that this is an extremely rare case involving exceptional circumstances. Our review of the docket shows that the case
Permanent Custody
{¶ 15} In Mother’s third assigned error, she argues that CCDCFS “failed to show by clear and convincing evidence that the children should be placed in the permanent custody of CCDCFS.”
{¶ 16} “An appellate court will not reverse a juvenile court’s termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence.” In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24. Courts apply a two-pronged test when ruling on permanent custody motions. To grant the motion, courts first must find that any of the factors in
{¶ 18} The court further found that it is in the best interest of the children to be placed in the permanent custody of CCDCFS. Specifically, the court found that Mother “failed continuously and repeatedly to substantially remedy the conditions causing the child[ren] to be placed outside the child[ren]’s home”; “The Parent has committed abuse against the child or caused or allowed the child to suffer neglect and the Court determines that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child[ren]’s placement with the child[ren]’s parent a threat to the child[ren]’s safety”; and “The Mother entered an admission as to adjudication.”
{¶ 19} At the May 29, 2019 disposition hearing, the following testimony was presented.
{¶ 20} Donniecia Worley testified that she is a coordinator at West Side Community House (“WSCH”), which is a service provider for CCDCFS. Worley stated that Mother took parenting and domestic violence classes at WSCH. According to Worley, Mother took the parenting class twice.
{¶ 22} Maureen Schroeck testified that she is a Developmental Specialist with the Cuyahoga County Board of Developmental Disabilities, and she was assigned De.D.’s and Do.D.’s case on August 24, 2018. After the initial assessment, the children “came across with global delays in a number of areas of development.” Schroeck is still working with the children, and she testified that “[t]hey have made good progress. Not significant. They’re still displaying some developmental delays, but they both are up and walking. They’re still working on some self-feeding skills. Language is severely delayed, no words.” The twins were 21 months old at the time of Schroeck’s testimony.
{¶ 23} According to Schroeck, the twins have been in the custody of paternal grandmother Y.S. since June 2018. Y.S. is “very interactive” with the children. “I think it’s a very caring, mutual kind of interaction. The boys interact well with her.” Schroeck observes Y.S. and the twins every other week at home visits and their weekly physical and occupational therapy sessions.
{¶ 25} Sabrina Jones is an Extended Social Worker at CCDCFS. She was assigned this case in June 2018, because of “physical abuse that the children sustained in mom’s care.” Jones confirmed that the putative father has not established paternity, had any contact with the children, or expressed interest in becoming involved in case plan services or any aspect of the children’s lives.
{¶ 26} Jones testified that Mother has eight children, none of whom are in her custody. Prior to the case at hand, Mother had five children removed from her care in Lorain County, Ohio. Mother told Jones that she did not harm her children. To explain the twins’ injuries, Mother “said that it was a bouncy that the children were in, and that that’s the only things that could possibly be the reason why the boys were injured, by the bouncy.” However, Jones testified that accidental trauma to the twins “did not make sense” given the professional medical opinion that the injuries were nonaccidental and caused by a person. Jones further testified that some of the injuries were “healed” and estimated that the twins were approximately six months old when the first injuries occurred.
{¶ 27} According to Jones, Mother’s initial case plan included referrals for parenting and domestic violence services. Although Mother completed the parenting class, this did not resolve the issue for the purpose of CCDCFS.
{¶ 28} Jones testified that she observed Mother “multiple times” at supervised visits with Y.S. and the twins.
[Mother] would sit down and she would actually wait for the children to come to her. * * * And she would engage with them. To me it would be more if she would be — you know, if she would actually do more of the initiation. * * * And that part I would say that mom does not truly initiate the bond, the engagement. * * * I have not actually seen mom get off of the couch and engage with those boys.
{¶ 29} Jones further testified that “Mom loves her children, I’ll give her that.” However, in Jones’s opinion, Mother “has not successfully benefited” from the parenting classes, because “you have to implement what you have learned.”
{¶ 30} Jones stated that Y.S. “provides nurturing, loving, she’s engaged. I have video of her involvement with the children. The children go to her, and I’m gonna be honest with you, [DE.] is very bonded. I mean, he really don’t too much care for other people. I mean, when grandma is around — let me just say that. When grandma is around, he is very engaged.” Jones testified that Y.S. is “consistent with making appointments,” including transporting the twins to occupational and physical therapy appointments every week.
{¶ 32} Jones testified that Mother completed the domestic violence counseling that was part of her case plan. The service provider documented that “[p]rogress reports have been positive. No current concerns that [Mother] is in a violent or unhealthy * * * relationship.”
{¶ 33} Jones testified that mental health services were identified for Mother in November 2018. Mother was referred for the services, but “the intake appointment has not been scheduled yet. Mother is waiting for her appointment at this time and willing to comply with her services and future recommendations.” Additionally, Mother self-reported to Jones that she has cognitive delays, and Jones is concerned that these delays contribute to Mother’s inability to implement the parenting skills she learned in the classes.
{¶ 34} Y.S. testified that she has had the twins for the past year since they were “traumatized” and taken from Mother. She knows they were injured, but she does not know who caused the injuries. She takes the children to their appointments and is bonded to them both. They see their little sister L.R. and Mother on Thursdays. According to Y.S., the interaction at these visits, “it’s not so much communication, but they there.” Y.S.’s intention as far as being the children’s long term caregiver is to “keep the little people.” Y.S. has completed foster parent classes
{¶ 35} Holbrook, who is the guardian ad litem for the children, recommended that “permanent custody for all three children * * * would be in their best interest.” Holbrook continued:
These are special-needs kids, particularly the twins, and they’re gonna need additional care for their entire lives, and it’s really not plausible at this time within the foreseeable future that mom would be able to provide the level of care that these kids will need.
So I think it’s imperative to get them into the hands of somebody long term who could provide the care that they need and I believe that they are currently in the best possible position right now.
* * *
With respect to [L.R.], we don’t yet know what her needs are. [L.R.] herself is a red flag. Her existence is a red flag.
We don’t know her parentage, and she was conceived while this was going on with the twins, so there are red flags regarding her origin and just based on history, there’s a possibility that she will have special needs as well.
And again, it is scarcely plausible that mother would be able to provide the level of care that these children will need anytime in the foreseeable future.
{¶ 36} Upon review of the testimony in the case at hand, we find clear and convincing evidence to support the court’s decision to grant permanent custody of the children to CCDCFS. As to the
{¶ 37} As to the best-interest-of-the-children factors, we find that the children’s relationship with Mother is good, but she does not initiate interaction with them. The twins’ relationship with Y.S. is good and Y.S. is their sole caregiver. L.R.’s relationship with her foster parents is good. See
{¶ 38} The children in the case at hand are too young to express their wishes. See
{¶ 39} The custodial history of the twins is they have been placed with Y.S. since the complaint was filed in June 2018. The custodial history of L.R. is she has been placed with the same foster family since birth, which was four months before testimony was given in this case. See
{¶ 40} The children’s need for permanent placement is substantial in this case. All three children are currently under the age of three, and the twins have developmental delays that result in special needs. See
{¶ 41} Additionally, the following
{¶ 42} Accordingly, Mother’s third and final assigned error is overruled.
{¶ 43} 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 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.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR