In re D.H.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 28, 2021
Civil Aрpeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-18915592
Appearances:
Dean M. Valore, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.
KATHLEEN ANN KEOUGH, P.J.:
{1} Appellant-mother (“Mother“) appeals from the judgment of the Cuyahoga County Common Pleas Court, Juvenile Division, granting permanent custody of her minor child, D.H., to appellee, the Cuyahoga County Department of Children and Family Services (“CCDCFS” or the “agency“). For the reasons thаt follow, we affirm.
{2} The record reflects that the events leading to this case occurred on December 21, 2018, when Mother became intoxicated at a bar, got into a physical altercation with her boyfriend, and failed to pick up D.H. and his sibling at daycare. No sober caregiver was available to care for the children. The police were called, the children were removed from Mother‘s care, and she was charged with child endangerment in Parma Municipal Court.
{3} On December 24, 2018, CCDCFS filed a complaint in the juvenile court alleging that D.H. was neglected and requesting predispositional temporary custody. After a hearing, the trial court granted the request for predispositional temporary custody to CCDCFS. At a subsequent hearing, Mother admitted the allegations of the amended complaint, and D.H. was adjudicated neglected and committed to the temporary custody of CCDCFS. A case plan was developed that inсluded mental health and substance abuse services for Mother, with the goal of reunification with D.H.
{4} In November 2019, CCDCFS filed a motion to extend the temporary custody order, which the trial court granted. Thereafter, the agency continued to work with Mother to complete her case plan. On October 30, 2020, due to a lack of progress toward reunification, CCDCFS filed a motion to modify temporary custody to permanent custody. Mother later filed a motion for legal custоdy of D.H.
{5} The trial court held a trial over two days in March 2021 on the pending motions. Blaine Muehlbauer testified that he is Mother‘s therapist at Summit
{6} Muehlbauer said that he tried to focus the counseling sessions on what behavior Mother needed to change in order to get her children back, but Mother was always “externally focused” abоut her frustrations with CCDCFS and the court system and contended that “everyone was against her.” He said she refused to discuss any faults or shortcomings that she might have and chose instead to focus solely on the faults of others. Muehlbauer said that Mother‘s perception that others were “out to get her” was consistent with her diagnosis of borderline personality disorder. He said that Mother also had a history of emotionally and sexually abusive relationships with men, and those relationships could have contributed to her personality disorder and her inability to trust people. Muehlbauer said that Mother was open to treatment “in the sense of coming in” to
{7} Muehlbauer said that he did several substance abuse assessments with Mother and she self-reported that she was intoxicated and fighting with her boyfriend when D.H. and his sibling were removed from her care in 2018, and that she had been arrested for driving under the influence in the fall of 2020. He said that Mother told him she was going to AA and “wasn‘t using,” but he acknowledged that he had no independent feedback to verify her statements.
{8} Constance Olipha, a therapist at Ohio MENTOR, testified that she began working with D.H. in February 2020 while he was at the home of foster parent Lee Hahn. Olipha said that D.H. was diagnosed with oppositional defiant disorder and adjustment disorder. She said that he frequently had temper tantrums and she worked with him to learn how to manage his tantrums and communicate effectively without tantrums. Olipha said that D.H.‘s tantrums were “big outbursts” that were “very hard to control,” and that he was sometimes physically abusive and threatening to the three other сhildren in the foster home during his tantrums. She testified that D.H. told her that when he had a tantrum at home, his mother would buy him a present if he did not break anything but if he was destructive, he would get “whooped with a belt.”
{10} Olipha said that in the fall of 2020, D.H. was admitted to Belmont Pines Hospital for one week due to his physically abusive and aggressive behaviors at the foster parent‘s home, and in January 2021, he was placed at Ohio Guidestone‘s residеntial center due to his need for greater structure. She said that she continued to talk to D.H. about once a month after his placement at Ohio Guidestone and he seemed happy and settled there.
{11} Therapeutic foster parent Lee Hahn testified that D.H. arrived at his home in January 2020, after D.H.‘s stepfather said that he could not manage D.H.‘s behavior. Hahn said that D.H. had trouble managing his behavior and with damaging property, but when he was not upset, he was “awesome tо be around.” He testified that when D.H. calmed down after a tantrum, he would expect to get a present because, as he told Hahn, Mother would take him to the store after a
{12} Hahn testified that when D.H.‘s visits with Mother stopped due to Covid, D.H. “was doing pretty good.” Hahn said that D.H. would “still have a small episode here or there * * * but the violent stuff diminished.” Hahn said that when D.H.‘s visits with Mother resumed, D.H. would “be crazy” for sеveral days after each visit, “yelling, screaming, throwing things, knocking over cabinetry in the house.” Hahn testified that the case manager from Ohio MENTOR was at his house during one of D.H.‘s tantrums and became so concerned about his threats to himself and others that she called the police. Hahn said that in September 2020, after D.H. realized that his visits with Mother had an impact on his behavior, he told Hahn that he did not want to visit her. Hahn also testified that one or two days after D.H. moved to Ohio Guidestone, D.H. сalled him, “crying and frantic.” Hahn said that D.H. told him that Mother had called and told him that she was coming to pick him up, but D.H. told Hahn, “I don‘t want to leave here because I want to come back to your house.”
{13} CCDCFS social worker Emily Mapp testified that the agency became involved in the case in December 2018 after Mother‘s incident at the bar. Mapp was assigned the case in October 2020.
{14} She said that paternity for D.H. had been established but Father had not completed any оf his case plan goals. She said that Father had last visited D.H. in September 2020 and prior to that, his last visit with D.H. had been in December
{15} Mapp said that Mother‘s case plan goals were to address her substance abuse and mental health issues. Mother moved to Akron in 2019, and CCDCFS referred her to Summit in Akron for mental health treatment. Mapp said that prior to her move, CCDCFS had referred Mother to a substance treatmеnt facility in Cleveland for an alcohol and other drug (“AOD“) assessment. After her move, CCDCFS referred her for an AOD assessment at a facility in Akron. Mapp testified that Mother did not complete either assessment.
{16} Mapp testified further that in December 2018, CCDCFS arranged for a parenting coach for Mother during her visits with D.H. She testified that the services were stopped because the coach said that she was unable to coach Mother properly given her mental health issuеs. Mapp said that there was conflict between Mother and the coach because Mother did not believe that she needed the service and was paranoid about her neighbors listening in on the visits.
{17} Mapp testified that although CCDCFS requested twice-monthly substance abuse screens, Mother was inconsistent with testing. She refused a test in December 2018, so that test was assumed positive; she tested negative in January 2019; and then did not test again until November 2019, when she tested negative. In December 2019, Mother tested positive for cocaine. A drug screen in February 2020 was positive for alcohol. Mother tested negative in March, April, May, June, and July 2020; however, in June 2020, Mother was charged with operating a vehicle
{18} Mapp testified further that Mother did not complete the mental health portion of her case plan because there had been no change of behavior or progress with her counselor. Mapp explained that Mother does not accept responsibility for her behavior and that “everything is everybody else‘s fault.”
{19} Mapp said that when D.H.‘s visits with Mother were suspended during the Covid break, he seemed happier, his behavior was better, and he was making progress with therapy. She said he would also open up to her more. She testified that when the visits resumed, he did not want to talk to her. Mapp said that she supervised D.H.‘s in-person visits with Mother and observed that Mother often told him that she was the only person he could trust and “everyone is against [us].” Mapp noted that D.H. refused to visit with Mother in November and December 2020. She said that telephone calls between Mother and D.H. at Ohio Guidestone are now monitored because during the first call, which was unmonitored, Mother told D.H. that she was coming to pick him up, which caused him great distress.
{21} Mapp testified that permanent custody was in D.H.‘s best interest because Mоther had not benefitted from her case plan services and the risks that led to his removal from the home had not been eliminated. She said that CCDCFS was concerned about Mother‘s mental health because she refused to recognize she has any issues and thus had made no progress toward changing her behavior. She said that Mother does not have the coping skills to deal with D.H.‘s behavior issues and that CCDCFS did not believe that Mother would be able to stay sober if D.H. were returned to hеr, putting D.H.‘s safety at risk. She testified further that D.H. had been in temporary custody for two years and deserved permanency and a normal home environment.
{22} D.H.‘s guardian ad litem acknowledged that D.H. had been inconsistent about whether he wanted to return to Mother but said that more recently he had stated that he wanted to be reunited with her. He recommended that the court grant legal custody to Mother with protective supervision, although
{23} After consideration, the trial court granted permanent custody of D.H. to the agency. In its journal entry, the court found that D.H. had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period and that he cannot be placed with either of his parents within a reasonable period of time or should not be placed with either parеnt. The court further found that an award of permanent custody was in D.H.‘s best interest. This appeal followed.
II. Law and Analysis
{24} In her single assignment of error, Mother contends that the trial court abused its discretion in committing D.H. to the permanent custody of CCDCFS because its decision is not supported by clear and convincing evidence.
{25} Termination of parental rights is an alternative of last resort but is sanctioned when necessary for the welfare of a child. In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 7. Under a two-prong test set forth in
“Clear and convincing evidence” is evidence that “will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be
A. R.C. 2151.414(B)(1) Factors
{27} The
{28} The trial court found that D.H. had been in the custody of CCDCFS for 12 or more months of a consecutive 22-month period. Mother concedes this finding (Mother‘s Brief, p. 12), and it is supported by the record. The time period for
B. R.C. 2151.414(D)(1) Best Interest Determination
{29} When considering the best interest of a child,
{30} The trial court‘s journal entry specifically noted that it had considered all the
{31} As to whether D.H.‘s need for a legally secure placement could be achieved without a grant of permanent custody, the court found that:
Child deserves a safe, stable, and consistent/structured environment where all of his needs can be met and he can thrive. This cannot be achieved with Father as he has abandoned the child. This cannot be achieved with Mother as she has failed to successfully complete and/or benefit from her own case plan services. While she is еngaged in mental health treatment, she fails to acknowledge her own mental health issues. She has failed to consistently maintain her sobriety. The child has behavioral issues that are currently being addressed in residential treatment. According to the testimony, child‘s behaviors would escalate after visits with Mother and were more under control when he wasn‘t visiting with Mother. According to the testimony, upon child‘s recent placement in residential treatment, Mother told Child she was going to remоve him from there.
{32} Finally, with respect to whether any of the factors set forth in
{34} As set forth above, the trial testimony demonstrated that D.H. had been in the agency‘s temporary custody from December 2018 until the time of trial in March 2021, well over two years. It further established that Father had abandoned D.H.; he had no contact with him between December 2019 and September 2020, and as of trial in March 2021, he had had no contact with D.H. since September 2020. Further, Father had indicated that he was unwilling to care for D.H. The trial testimony also indicated that D.H.‘s wishes regarding whether he wanted to be reunited with Mother were inconsistent. And, as set forth in CCDCFS exhibit No. 5, one of Mother‘s children had been placed in the legal custody of the child‘s father due in part to Mother‘s mental health issues, lack of sobriety, and failure to complete or benefit from services.
{35} With respect to D.H.‘s need for a legally secure placement, the trial testimony established that such could not be accomplished if D.H. were placed with Mother. The evidence demonstrated that Mother did not complete or benefit from her case plan services. Specifically, although she appeared for mental health counseling, she failed to acknowledge her mental health issues and thus made no progress in addressing them. With regard to her substance abuse issues, Mother did not complete an agency AOD assessment, despite two referrals and even though she
{36} “A child‘s best interests require permanency and a safe and secure environment.” In re K.M., 8th Dist. Cuyahoga No. 95374, 2011-Ohio-249, ¶ 23. The evidence demonstrated that a safe and secure environment was not possible at Mother‘s home. As Emily Mapp testified, because Mother failed to consistently maintain her sobriety and address her substance abuse and mental health issues, CCDCFS could not guarantee D.H.‘s safety if he were returned to her.
{37} Finally, the evidence demonstrated that D.H. had significant behavioral issues that, at least as of the time of trial, required intense treatment in a residential facility. It also unequivocally demonstrated that D.H.‘s emotional and behavioral issues were exacerbated by contact with Mother, a fact that even eight-year-old D.H. was astute enough to realize.
{38} We review a trial court‘s grant of рermanent custody for an abuse of discretion. Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). When
{39} In light of the evidence discussed above, we find that the trial court did not abuse its discretion in determining that permanent custody of D.H. should be awarded to CCDCFS. The trial court‘s determination that permanent custody was in D.H.‘s best interest is supported by clear and convinсing evidence.
{40} In addition to finding that the best-interest determination under
{41} Because Mother‘s argument that permanent custody was not in D.H.‘s best interest focuses entirely on the best-interest determination made under
{42} 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and EMANUELLA D. GROVES, J., CONCUR