IN RE: J.B.
Nos. 98518 and 98519
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 26, 2013
2013-Ohio-1703
S. Gallagher, J., Jones, P.J., and McCormack, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case Nos. AD 09901436 and AD 09901437
IN RE: J.B.
A Minor Child
[Appeal by S.C., Great-grandmother]
JUDGMENT: AFFIRMED
Robert L. Tobik
Cuyahoga County Public Defender
By: Cullen Sweeney
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Michelle A. Myers
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, OH 44144
Also listed:
Guardian ad Litem
Michael B. Granito
24400 Highland Road
Suite 162
Richmond Heights, OH 44143
{¶1} In this consolidated appeal, S.C. appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, in two separate underlying cases, each involving a different minor child. S.C. claims the trial court erred by denying her legal custody of the minor children and granting permanent custody to the Cuyahoga County Department of Children and Family Services (“CCDCFS“). For the reasons stated herein, we affirm the judgment of the trial court in each case.
{¶2} Initially, we must recognize that the trial court‘s decision to grant permanent custody to CCDCFS and its best-interest determination were independently made as to each minor child. The minor children have different mothers; separate hearings were held; and separate opinions were issued by the trial court. J.B.-1 is the minor child of S.B., and J.B.-2 is the minor child of R.B. S.B. and R.B. are sisters. A.C. is the maternal grandmother of the minor children, and S.C. is their maternal great-grandmother.1 Although the cases have been consolidated for review, we remain cognizant of the fact that the determination as to each child must be reviewed separately.2
{¶3} The procedural and factual background of each case is set forth below.
{¶4} J.B.-1 was born on October 9, 2008, when S.B. was 13 years old. J.B.-1‘s father is unknown. J.B.-1 was committed to the emergency custody of CCDCFS on or аbout January 29, 2009. CCDCFS had previously been involved with S.B. in March 2008, because of her unruly and delinquent behaviors. At the time of J.B.-1‘s removal from the home, there had been an incident at another person‘s home involving S.B., R.B., and two males. During this incident, there was an argument; S.B. displayed a knife, and one of the males exhibited a gun. While this occurred, J.B.-1 was sleeping upstairs in a crib without a mattress. Also, the home was in deplorable condition and was rat- and roach-infested.
{¶5} The trial court adjudicated J.B.-1 as neglected and dependent, and on July 30, 2009, J.B.-1 was committed to the temporary custody of CCDCFS. In August 2009, J.B.-1 was placed into the foster family‘s home, where she remained during the course of the proceedings. Tempоrary custody with CCDCFS was extended.
{¶6} On January 28, 2011, CCDCFS filed a motion to modify temporary custody to permanent custody. On November 11, 2011, S.B. filed a motion for legal custody to herself. Additionally, A.C. filed a motion for legal custody to herself, and the guardian ad litem (“GAL“) for the child filed a motion for legal custody of J.B.-1 to S.C. A hearing was held on the pending motions on November 17, 2011, January 24, 2012, and March 21, 2012.
{¶7} The record reflects that J.B.-1 was removed from S.B.‘s care when she was only three months old. Following placement, she remained with the foster family for
{¶8} CCDCFS presented evidence to demonstrate that despite her participation in provided services, S.B. failed to achieve the objectives of her case plan or to substantially remedy the conditions that caused the child to be placed outside the home. During the course of the proceedings, S.B. attended five different schools. Her attendance was an ongoing problem; she was suspended for an altercation with another student; and she was not on track academically. Although she attended сounseling services and parenting programs, S.B. continued to display poor decision-making. Also, she displayed an inability to control her anger outbursts. There were reports of S.B. fighting in the community, and she was the subject of delinquency charges. There was evidence that on one occasion, S.B. left her three-year-old stepsister in a store by herself while she went outside to fight in a parking lot. As a result of this incident, S.B. was found delinquent for aggravated menacing and disorderly conduct. S.B. also missed certain medical appointments for J.B.-1 after becoming responsible for her own transportation. Further, in-home visits were initiated on two occasions but needed to be changed baсk to supervised visits because of S.B.‘s poor decision-making. The GAL indicated that S.B. had “appeared to digress over time.” The GAL had concerns about S.B.‘s behavior and
{¶9} There was evidence showing that the maternal grandfather did not visit J.B.-1 and was not serious about custody, and that the maternal grandmother, A.C., had made insufficient progress for reunification. As found by the trial court, “[m]aternal grandmother continues to provide primary care for four minor children in her home, including [S.B.], and their needs; such that maternal grandmother was not always able to get [S.B.] to appointments with the child herein, or to more than 30% of scheduled visits. [S.B.] is a minor, and has not consistently been compliant with home rules and expectations.” The GAL noted that A.C. had not attended all visits and questioned whether A.C. would protect and nurture J.B.-1 if given custody. There also was evidence that the grandmother had repeatedly indicated to the social workers that she was overwhelmed.
{¶10} While the great-grandmother, S.C., had substantially completed her case plan objectives, CCDCFS had expressed concerns regarding her criminal past and mental and physical health. S.C. had a felony conviction for gross sexual imposition in 1982 for which she served five years in prison. She also was not open with CCDCFS about her mental heath trеatment and diagnosis, although she did provide a medical release.
{¶11} S.C. had moved from Texas to Cleveland when the children were taken into custody in 2009. The GAL recommended that the motion for permanent custody be denied and recommended legal custody to S.C. The GAL noted that S.C. had been found suitable for custody of other children, regularly attended visits with J.B.-1, and had an
{¶12} On June 4, 2012, the trial court issued a decision committing J.B.-1 to the permanent custody of CCDCFS and terminating all parental rights of S.B. Among other findings, the trial court determined that J.B.-1 had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period, that she had been in the temporary custody of CCDCFS for two years and no longer qualified for temporary custody, that she could not be placed with one of her parents within a reasonable period of time or should not be placed with either parent, and that it was in J.B.-1‘s best interest to be placed in the permanent custody of CCDCFS. The court denied the motions for legal custody filed by the various family members.
In re J.B.-2, Mother R.B.
{¶13} J.B.-2 was born on November 4, 2008, when R.B. was 15 or 16 years old. J.B.-2 was committed to the emergency custody of CCDCFS on or about January 29, 2009. The trial court adjudicated J.B.-2 as neglected and dependent, and on June 2, 2009, J.B.-2 was committed to the tеmporary custody of CCDCFS. In August 2009, J.B.-2 was placed into the foster family‘s home, where she remained during the course of the proceedings.
{¶14} Great-grandmother, S.C., filed a pro se motion for legal custody of J.B.-2, which motion was held in abeyance by agreement of the parties. Temporary custody with CCDCFS was extended. In July 2010, CCDCFS filed a motion to modify temporary custody to permanent custody. Also in July 2010, the maternal grandmother,
{¶15} A review of the record reflects that J.B.-2 was removed from her mother‘s care when she was less than three months old. Following placement, she remained with the foster family for over two and one-half years. Her cousin, J.B.-1, was placed in the same foster home. J.B.-2 was given structure by the foster family. She developed a strong bond with the foster family, and the foster parents provided for her emotional and medical needs. On the other hand, there was evidence that J.B.-2 resisted visits with her mother and other biological family members and was exhibiting negative behaviors as a result of the visits.
{¶16} A social worker on the case testified that J.B.-2 would get upset when she entered visits and vocalize that she did not want to be there; however, she would calm down. There was evidence that R.B. would hold the child during visits and attend to the child‘s needs. Also, J.B.-2 called R.B. “Mommy.” R.B.‘s visits with J.B.-2 were mostly supervised, and other family members were present.
{¶17} By the time of the hearing, R.B. was no longer a minor, and she had a second child, who is J.B.-2‘s sibling and remains in R.B.‘s care. While R.B. was making progress on her case plan, successful completion of a case plan is not dispositive on the issue of reunification and does not necessarily preclude a grant of permanent custody to a
{¶18} After R.B. reached the age of majority, the case plan was amended to include a housing component. R.B. resided in a home with her older sister, and was named on the lease for a time. However, R.B. continually moved back and forth to her mother‘s home because she would become involved in conflicts with the family members. Although there was evidence indicating that R.B. had recently applied for HUD housing and was enrolled with counseling services through Murtis Taylor, a local social services agency, she had not demonstrated consistency or stability over the course of the case. Further, while R.B. was appropriately caring for her new child, a social worker believed she was overwhelmed and adding a second child to the home would make the situation worse.
{¶19} The GAL expressed that R.B. had matured ovеr the course of the case, was doing a good job with her second child, and showed appropriate behavior with her children. The GAL recommended that the motion for permanent custody be denied and
{¶20} There was evidence showing that the maternal grandfather rarely visited J.B.-2 and that the maternal grandmother, A.C., had made insufficient progress for reunification. A.C. was inconsistent in appearing for visits, has four minor children of her own, and indicated several times that she was overwhelmed. She also would get angry with the social worker in front of J.B.-2. The GAL questioned whether she would protect and nurture the child if given custody.
{¶21} While the great-grandmother, S.C., had substantially completed her case-plan objectives, CCDCFS expressed the same concerns raised in J.B.-1‘s case. Here again, the GAL noted that S.C. had been found suitable for custody of other children, regularly attended visits with J.B.-2, and had an appropriate residence. The GAL also believed S.C. would encourage visitation and possible reunification with mother.
{¶22} On June 4, 2012, the trial court issued a decision committing J.B.-2 to the permanent custody of CCDCFS and terminating all parental rights of R.B. and the father of J.B.-2. Among other findings, the trial court detеrmined that J.B.-2 had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period, that she had been in the temporary custody of CCDCFS for two years and no longer qualified for temporary custody, that she could not be placed with one of her parents within a reasonable period of time or should not be placed with either parent, and that it
S.C.‘s Consolidated Appeal and Assignment of Error
{¶23} S.C. claims in her sole assignment of error that
[t]he trial court erred in denying [S.C.‘s] motions for legal custody and electing instead to award permanent custody to [CCDCFS].
{¶24} A trial court may terminate parental rights and grant permanent custody of a child to a children services agency if the court finds, by clear and convincing evidence, that one of four conditions set forth in
{¶25} In each of the underlying cases, CCDCFS established that the condition set forth under
{¶26} Although not required, in each case, the trial court also addressed the condition set forth under
{¶27} The focus of S.C.‘s appeal is her claim that the court erred in determining the best interest of each child was to award permanent custody to CCDCFS rather than to award legal custody to S.C. We must emphasize that it is the best interest of the child, not the parent or family, that matters.
{¶28} Our review of each case reflects that in considering the best interest of the child, the trial court considered all relevant factors, including the factors set forth in
{¶29} S.C. argues that the trial court did not afford enough significance to the positive relationships the children had with their biological family and that the importance
{¶30} While each child may have a bond and a positive relationship with biological family members, the children have been living with the foster family for the majority of their young lives. They were nurtured on a daily basis, and after two and one-half years with the foster family, they had developed a significant bond and a sense of security with the foster family. There was evidence that J.B.-2 was apprehensive about visiting with her biological family and exhibited negative behaviors as a result of the visits. Attempts to implement in-home visitation for J.B.-1 were unsuccessful, and S.B. continued tо engage in fights and exhibit poor decision-making.
{¶31} It is evident that the biological family loves the children and that S.C. showed commitment to them. Although family unity and “blood relationship” are important factors to consider, neither is controlling. In re T.W., 8th Dist. Nos. 86084, 86109, and 86110, 2005-Ohio-6633, ¶ 15. Nor is the mere existence of a good relationship. Id. Rather, all relevant factors must be considered when determining the best interest of the child.
{¶33} Next, S.C. attempts to minimize the custodial history of the children by suggesting that the length of custody was attributable to delay caused by the trial court. However, that was not the case in this matter. R.B. and S.B. were teenage mothers who were not consistently engaging in the services provided and were afforded time to mature and progress with their case plans. Temporary custody was extended, and the agency continued to work with the mothers. S.C. agreed to hold her motion for legal custody in abeyance in J.B.-2‘s case. The reality remains that J.B.-1 and J.B.-2 were in the temporary custody of CCDCFS for three years and have been with the foster family for a significant period of time. These were appropriate considerations for the trial court.
{¶34} Finally, S.C. argues the trial court erred in considering whether the children‘s need for a legally secure placement could be achieved without a grant of permanent custody. S.C. states she is committed to the children, has appropriate housing, and is capable of providing а legally secure placement. While S.C. asserts that a CCDCFS social worker agreed with her, the record reflects that the agency had
{¶35} S.C. also claims the trial court found there were relatives able to take custody and that the court‘s sole basis for denying her legal custody was that the agency remained concerned that she would not disclose the reason she was receiving mental-health treatment from Murtis Taylor, yet she provided a release. S.C. initially was not forthcoming about this information to CCDCFS, and the court recognized this concern. There was no false premise in this regard. Furthermore, the court was not required to detail every factor it found applicable in its determination or to provide a specific explanation. The court heard extensive testimony in each case and made the requisite considerations. We find no abuse of discretion by the trial court.
{¶36} Even if S.C. were a suitable relative, “[t]he statute does not make the availаbility of a placement that would not require a termination of parenting rights an all-controlling factor [and] does not even require the court to weigh that factor more heavily than other factors.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 63. Rather, the statute “requires the court to find the best option for the child[.]” Id.
{¶38} 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 еntry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, J., CONCURS;
LARRY A. JONES, SR., P.J., DISSENTS (WITH SEPARATE OPINION)
{¶39} Respectfully, I dissent and conclude the trial court abused its discretion when it determined that the grant of permanent custody to CCDCFS was in the best interest of the children.
{¶40} The termination of parental rights is “the family law equivalent of the death penalty in a criminal case; therefore, parents must be afforded every procedural and substantive protection the law allows.” (Citations omitted.) In re D.A., 113 Ohio St.3d 88, 91, 2007-Ohio-1105, 862 N.E.2d 829. “The termination of parental rights should be an alternative of ‘last resort.‘” Id., citing In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979).
{¶41} Because both children had been in the custody of CCDCFS for more than 12 months out of a 22-month period, the triаl court had only to conclude what was in the children‘s best interest pursuant to
{¶42}
(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.
{¶43} The factors listed in
J.B.-1
{¶44} Based on my review of the record and trial transcripts, I would find that the trial court erred in granting the agency‘s motion for permanent custody; I disagree that it is in the child‘s best interest for the agency to take permanent custody. Instead, the trial court should have granted appellant‘s motion for legal custody and placed the child with her.
{¶45} In considering the best interest factors in
{¶47} As to
{¶48} In relation to the custodial history of the child,
{¶50} Thus, it took the trial court 10 months from the time the motion for permanent custody was filed to commence trial and then another four months for the trial court to finish three more days of testimony. Trial ended on March 22, 2012, but the trial court did not issue its decision until June 4, 2012. Consequently, J.B.-1 spent approximately 17 months in the agency‘s custody from when the motion for permanent custody was filed until the trial court ruled on the motion.
{¶51} Although I understand that there were some issues that may have delayed the trial, to me, 17 months from motion filed to motion decided is an unacceptable length of time, especially given the young age of the child. Thus, I would not find that the length of the custodial history should be solely attributable to the mother‘s actions.
{¶52} Considering
{¶53} As the majority opinion acknowledges, when the child was initially taken into custody appellant relocated from Texas to Cleveland for the sole purpose of assisting her family. The social worker testified that appellant attends visitation with the child
{¶54} After appellant was added as a party to the case, the agency filed an amended case plan requiring appellant to complete a parenting course and sign a medical release for her mental health service provider; she completed both objectives.
{¶55} Even though the agency was prohibited from placing the child with appellant because of a 30-year-old conviction, the same does not apply to the court. While
{¶56} The majority asserts that because applicable statutes do not require a court to consider placing a child with a relative before granting permanent custody to a state agency and because the juvenile court has discretion to determine what placement option is in the child‘s best interest, the court in this case did not err in its assessment of what was in the child‘s best interests. While the premise as stated above may be true, I disagree that the court‘s decision was supported by clеar and convincing evidence. The
{¶57} Thus, I advocate that legal custody of J.B.-1 be granted to appellant with the agency providing protective supervision.
{¶58} Finally, in considering
{¶59} Even though the mother was only 13 years old when she gave birth to J.B.-1, almost four years have passed, and, without a doubt, the mother has a strong and loving family network. The fact of the matter is, even if the child‘s mother is not presently able to parent her child, a legally secure family placement exists that would save the court from taking the drastic, harsh, and irrevocable step of terminating the mother‘s parental rights. Simply put, to permanently cut the bonds of this family to J.B.-1 would not be in the child‘s best interests and the state failed to show otherwise by clear and convincing evidence.
{¶60} In light of the above, I would find that the trial court abused its discretion in granting the motion for permanent custody as to J.B.-1.
J.B.-2
{¶62} In considering the interaction and interrelationship of the child with her mother, siblings, other relatives and significant people in her life pursuant to
{¶63} The GAL for J.B.-2 reported that the child was too young to express her wishes under
{¶64} In relation to the custodial history of the child,
{¶65} Considering
{¶66} Finally, in considering
{¶67} The trial court‘s decision to grant permanent custody of the children to CCDCFS was not supported by competent, credible evidence. Accordingly, I would conclude that the trial court abused its discretion when it determined that permanent custody was in the best interest of the children. I would: (1) reverse the trial court‘s decision granting permanent custody to CCDCFS; (2) grant legal custody with protective supervision of J.B.-1 to the great-grandmother, S.C.; and (3) grant legal custody with protective supervision of J.B.-2 to the mother, R.B.